The Right to Quote in Audiovisual Matters in the Face of Image Rights

A famous actress takes off her clothes and legal questions are exposed …
The monthly magazine Entrevue had published an article relating the protests manifested by Arielle Dombasle, hurt in her modesty by images illustrating the subject of the swinging during a television program.
The magazine pointed out a contradiction between this attitude of the actress and her own public past. Thus, it published a photograph extracted from the film Les fruits de la passion, presented at the Cannes Film Festival in 1981, representing her entirely naked in a scene of erotic character and commented: “Arielle Dombasle has good reason to be offended by photos on swinging (…) at the time, more reckless and less modest, she was not afraid to upset sensitive souls for the good cause of the 7th art”.

Arielle Dombasle then sued the magazine, arguing that this was an invasion of her privacy and her right to her image.
The Tribunal de Grande Instance de Paris dismissed her claim on the basis of privacy. On the other hand, it found in her favor with regard to the infringement of her right to image. It rejected the defendant’s invocation of the exception of short quotations, which are authorized by the Intellectual Property Code when they are justified by a “critical, polemical, educational, scientific or informative” character, on the grounds that “the exercise of this right (…) cannot be an obstacle, as regards the reproduction of the features of a performer, to the need to obtain the authorization provided for by article 9 of the Civil Code”.

The Court implicitly recognizes the legality in principle of the quotation of an audiovisual work by extraction of an image (I), but seems to deny any practical scope to this faculty by giving precedence to the right to the image over the provisions of the Intellectual Property Code (II).

I – The quotation of an audiovisual work: the status of the photogram

To exclude the application of the exception of short quotation in this case, the judgement relies on contingent criteria, but seems to recognize the principle of the possibility of quotation of an audiovisual work by extraction of an image. In doing so, it did not raise the issue of whether the image extracted from an audiovisual work could be in itself a distinct work.
Such a qualification would have been enough to dismiss from the outset the right of quotation. Indeed, a jurisprudence now well established (for example concerning comic strip vignettes) refuses any quotation when the extract is in itself a work.

At the time, the doctrine expressed reservations on this evolution, pointing out that in the absence of a defined criterion, at the extreme, any quotation could appear as the reproduction of a work.
These reflections are moreover reinforced by a recent jurisprudence according to which a verse of a song (in this case, “the sun has an appointment with the moon” extracted from the song the sun and the moon of Charles Trenet) can be, a work in itself.
The problem is posed a priori in other terms in audiovisual matter. The qualification of work appears excluded for a photogram, that is to say the isolated image of a film. Indeed, cinema is an art of rhythm and temporality. To qualify as a work a photogram, by nature a simple instantaneous image having no reason to exist without those that precede and follow it, seems as incongruous as granting such a qualification to an isolated note of a musical composition.
So a photogram could not be a work? This evidence is misleading. It would indeed be a rule emptied of its substance by too many and obvious exceptions.

So a photogram could not be a work? This evidence is misleading. It would indeed be a rule emptied of its substance by too many and obvious exceptions.
The visual creation of the futuristic city of Metropolis is emblematic of all German expressionist cinema and has inspired contemporary architecture. The image of the knight playing chess with Death in The Seventh Seal is as powerful as a painting. The whole film is a development of this image.
In this case, the right to quote an image from the film did not finally come up against this criterion promised to obsolescence, but against a competing prerogative: the right to the image of natural persons.

II – The right to the image, a prerogative without limit ?

In order to refuse the benefit of the exception of short quotation to Entrevue magazine, the Court considers “that in any case, the exercise (of the) right of quotation cannot be an obstacle, as regards the reproduction of the features of a performer, to the need to obtain the authorization provided for by article 9 of the Civil Code”. According to the Court, respect for the performers’ right to image would thus become paramount and would, in particular, take precedence over the special rights conferred on them by their status.
However, the specific Act must prevail over the general Act. The general provisions on personality rights should take precedence over the specific provisions on performers’ rights. In principle, the legality of the reproduction of photograms of nude actresses should be assessed solely on this basis
The reversal of reasoning made by the Court seems all the more regrettable that, if the choice of article 9 of the Civil Code is erroneous, the interpretation of its regime is in this case questionable. Indeed, Arielle Dombasle’s right to her image should perhaps, in the end, have taken a back seat to freedom of expression.
As the Court of Cassation recalled in a decision which, by chance of the calendar, was rendered two days after the judgment reported here, “the rights to respect for private life and freedom of expression having, with regard to articles 8 and 10 of the ECHR, and 9 of the Civil Code, an identical normative value, it is the duty of the judge seized to seek to balance them and, where appropriate, to favour the solution that best protects the most legitimate interest.

In our opinion, assuming that the regime of article 9 of the Civil Code applies, the specific circumstances of the case should have made it an exceptional case where, despite the nudity of the person depicted, the right to the image ultimately takes second place.
Thus, the representation of Arielle Dombasle in the nude was the illustration of a controversy not devoid of legitimacy on the cinematographic past of this actress. She had made outrageous remarks during the presentation of photographs on swinging during a television program. This incident had led to the sacking of the presenter and was the subject of a controversial article in Entrevue magazine.
The argument finally retained to dismiss the freedom of expression, and thus to characterize an infringement of the actress’ right to image, is the extraction, out of its context, of the incriminated photo.
Paradoxically, it is more logical that the application of the right of performers would have led to the condemnation of the magazine Entrevue. Indeed, the right of quotation cannot defeat the moral rights of the performer and in particular the right to respect of his interpretation. The reduction of an actress’ performance to an erotic image certainly constitutes, more than an infringement of her personality rights, an infringement of her moral rights as a performer.
In short, it would have been sufficient to apply the classic criteria of the Intellectual Property Code to condemn the magazine. The Court proceeded otherwise by elevating the right to the image to the rank of an unlimited prerogative, applying “in any case”, even in competition with a more appropriate intangible right.
Basically, this judgment seems to be the ultimate backlash to the “telluric jolt” caused by the famous Café Gondrée decision. The Court of Cassation had ruled that the exploitation of a property in the form of photographs infringes the owner’s right of enjoyment, considering the question of possible intellectual property rights to be subsidiary at best.

The Court of First Instance continues this subsidiarization of intellectual property rights and related rights by dismissing them in the face of a right of personality. Intangible rights versus intangible rights, images versus images, the search for balance is however too delicate to be satisfied with arbitrations without nuance.
This analysis is the abridged version of a more detailed commentary, co-written by Alexandre-M BRAUN and Marie-Estelle TAUDOU, published in LEGIPRESSE, a monthly magazine on communication law, in December 2003, under the title IMAGE AGAINST IMAGE: THE RIGHT TO QUOTE IN AUDIOVISUAL MATTERS IN THE FACE OF PERSONAL RIGHTS.