Sociétié Plon et autres v. Pierre Hugo et autres
|Sociétié Plon et autres v. Pierre Hugo et autres|
|Court||Court of Cassation|
|Decided||January 30, 2007|
Intellectual Property, droit moral, copyright, French copyright, public domain, Victor Hugo
Sociétié Plon et autres v. Pierre Hugo et autres, 04-15.543 Arrêt n° 125 (Jan. 30, 2007) is a decision by the First Civil Chamber of the Cour de Cassation (the high court in France) which ruled that François Cérésa's adaptations/sequels of Les Misérables do not per se violate the droit moral of its author Victor Hugo and his estate. Droit moral originated in France, this case serves to limit the scope of that right and expand the public domain in French copyright law.
This overruled and remanded to the lower appeals court, the Cour d'Appeal de Paris, which had declared a symbolic 1 Euro penalty, declaring that "no sequel can ever be added to so great a work as Les Misérables".
Background of the case
Ceresa wrote “Cosette” (titled “Cosette ou le temps des illusions” in French) and “Manius” (French title “Manius ou le fugitive”) in 2001, 136 years after Victor Hugo’s death, and 149 years after the original publication of Les Misérables. While the presumptive duration of copyright rights had expired, there remained a question of whether Hugo's heirs were entitled to rights under the theory of droit moral. This case was brought by Victor Hugo's great-great grandson Pierre Hugo (heirs are severally capable of bringing actions for droit moral under French law) and Société des gens de lettres alleging infringement by the publisher of both books Plon and their author Cérésa. Hugo claimed damages of 675,000 Euro.
The droit moral, codified in French law under article L111-1 of the Intellectual Property code, provides for a non-marketable right enforceable against all by the author, corresponding with the embodiment of the self-contained within each respective work. While the term of economic copyright in France was relatively settled, a conflict within this case was the duration of these non-economic rights which under a literally reading of L121-7-1 are indefinite. It should be noted that distinguishing the economic from non-economic even outside the context of the Anglo-American IP construct is difficult.
The Court's Decision
In a characteristically short opinion the Cour de Cassation addressed three issues. Whether (1) there was breach under typical copyright law or standing to bring the suit, (2) société des gens des lettres had standing as a voluntary third party to join the suit, and (3) Hugo’s droit moral was violated (under L111-1, L121 & Article 10 of the European Convention on Human Rights)
The court straightforwardly accepts that Pierre Hugo has the right to bring suit under French law but not under traditional copyright because those rights had expired in 1957 and grants Société des Gens des Lettres status.
The Court makes two rulings about Hugo’s droit moral. First, since all of his rights under copyright had expired his estate’s monopoly on the right of adaptation had expired and that while any adaptation may prejudice the droit moral of Victor Hugo to some extent, that was necessary because the term had expired. Second, that the appellate court failed to identify the specific mechanism by which Hugo’s image was tarnished.
The latter ruling (while it is explained below that on remand the court found no such tarnishing) leaves the possibility that if a specific injury could be identified there could be damages.
Right of Attribution
During the course of litigation, Pierre Hugo while trying to define his claim in layman's terms, stated "I don't mind adaptations and many are very good but this book is not an adaptation. I have read it and it is not badly written but the publishers used Victor Hugo's name and the title Les Miserables as a commercial operation ... It was nothing to do with literature, they were just trying to make money." While droit moral certainly extends beyond the US right of attribution this statement conflates the two.
The Court's opinion provides a better distinction, although not entirely clear by ruling, "altering the vision of Hugo/altéré l'oeuvre de Victor Hugo" or giving birth to "a confusion as to the origin or the work/une confusion sur leur paternité".
Quality of the Work
Throughout the litigation the French Courts cite the importance of Hugo's work. The only connection made, however, between the importance of the work and the scope of the protection that it deserved was the Cour d'Appel's concession that delineating the points of personality from the work was difficult. This analysis would be useful for more ordinary works, even ones which still enjoy protection from economic exploitation.
Both parties argued that the sequels were transformative at the trial and first appellate level. Whereas Hugo's estate argued that the transformative nature diluted the protected essential personality of the work, Plon argued that the transformative nature was made it less likely that the work borrowed the essential, protected personality. While this issue was not addressed by the Cour de Cassation, it is an argument which may bear fruit in subsequent droit moral litigation.
Upon reexamination after the high court’s remand the Appeals court concluded that Cérésa’s work did not interfere with Hugo’s. The court further imputed that Hugo was not hostile to adaptations of his work, leaving open the possibility that a hostile author might have more rights. Representatives for Plon were quoted saying, “This is a great success, and because of this books will continue to appear freely." ("Les livres pourront continuer à paraître tout à fait librement, c'est un grand succès pour nous") As of May 2013, no subsequent suit has been filed with either the European Court of Human Rights or the European Court of Justice. Either court would have the power to overrule the French national courts, but it is unlikely either would find reason (either factual or legal) to do so.
Scholars believe this case opens the door in French courts for an inquiry into droit moral for any derivative work, whether or not is otherwise in the public domain. However, the decision aids writers, filmmakers and playwrights in that it does serve to protect the public domain.
Xavier Skoweron-Galvez, Un (mavais) coup porté au droit moral de l'auteur - L'affaire "Les Misérables", http://avocats.fr/space/xavier.skowron-galvez/content/un--mauvais--coup-porte-au-droit-moral-de-l-auteur---l-affaire--les-miserables-_0B60E189-4CE0-4AF6-AEF0-EF963084D29F (last accessed May 13, 2013).
Julien Horn, Les Misérables, suite ou fin ?, Le Monde, February 2, 2007, http://www.lesechos.fr/02/02/2007/LesEchos/19849-54-ECH_les-miserables--suite-ou-fin--.htm
Alan Riding, Arts Abroad; Victor Hugo Can't Rest in Peace, As The Sequel Makes Trouble, New York Times May 29, 2001 http://www.nytimes.com/2001/05/29/books/arts-abroad-victor-hugo-can-t-rest-in-peace-as-a-sequel-makes-trouble.html
- Rigamonti, Cyrill P. Deconstructing Moral Rights. 47 Harv. Int'l Law J. 353, 353-412 (2006).
- Sur l'arrêt de la Cour d'appel de Paris du 31 mars 2004 : RIDA, oct. 2004, p.292, F.Pollaud-Dulian ; Com. com. élec. 2004, n°50, C.Caron.
- Droit moral allows for rights to the author or their estate even after some rights have been assigned (Hugo's work was liberally assigned as evidenced by the numerous plays, movies and books based on the original work). Betsy Rosenblatt, Moral Rights Basics, Harvard Law School Cyber Law http://cyber.law.harvard.edu/property/library/moralprimer.html (last accessed May 13, 2013)
- "Les Miserables" la suite va être rejugée en appel, Le Nouvel Observateur, http://tempsreel.nouvelobs.com/culture/20070130.OBS9636/les-miserables-la-suiteva-etre-rejugee-en-appel.html (last visited May 14, 2013).
- See http://news.bbc.co.uk/2/hi/entertainment/6317941.stm (Pierre Hugo calling the sequels "money makers," as if the problem were in fact the profits derived). This issue may even further complicate as the suit is brought by Hugo's great-great grandson, how pure are his artistic intentions towards his great-great grandfather's work? But see http://williampatry.blogspot.com/2007/02/two-from-europe.html
- Kim Willsher, The Guardian January 31, 2007 available at http://williampatry.blogspot.com/2007/02/two-from-europe.html (last visited May 13, 2013).
- "une véritable monument de la littérature mondiale, (... n'étant) pas un simple roman en ce qu'elle procède d'une démarche philosophique et politique"/A vertiable monument of wordly literature, not an average piece of literature... Sur l'arrêt de la Cour de cassation du 30 janvier 2007 : RIDA, avr. 2007, p.249, P.Sirinelli ; JCP-G, 2007, II, 10025, C.Caron ; GP, 2007, J, T.Lancrenon."
- Sur l'arrêt de la Cour d'appel de Paris du 19 décembre 2008 : Légipresse, mars 2009, III, P.Allaeys.
- Roberta Kwall, The Soul of Creativity 43-44 (Standford University Press 2010)
- Willsher, http://www.guardian.co.uk/world/2007/jan/31/books.france