Thinking of moral rights ... in Paris (ça va sans dire)

A French beret is a must-wear for Merpel,
especially now that it has
some added IP-related relevance

Even when she is in Paris, the trees are blossoming, and there are no actual IP disputes at stake or even just in sight, can a Kat truly stop thinking about potential copyright issues? Clearly, the answer is 'no'.

After waiting for it for a long time, yesterday this Kat had the opportunity [or, rather, the chance] to visit the majestic Henri Cartier Bresson exhibition at the beautiful Centre Pompidou together with Merpel [who also happens to be in Paris].

Cartier-Bresson is known as the father of modern photo-journalism and inventor of the expression 'the decisive moment' [also a book], which he himself defined as follows:

"Photography is not like painting. There is a creative fraction of a second when you are taking a picture. Your eye must see a composition or an expression that life itself offers you, and you must know with intuition when to click the camera.

That is the moment the photographer is creative. Oop! The Moment! Once you miss it, it is gone forever."

One of this Kat's favourite
Cartier-Bresson pictures

Cartier-Bresson was apparently very much concerned with having the spirit of his work respected. During the 1970s he gradually stopped taking on photo report assignments and spent significant time supervising the organisation of his archives, sales of his prints and the production of books and exhibitions.

What is special about this Paris major retrospective, besides being a monumental one that spans across the long life of Cartier-Bresson, who was born in 1908 and died in 2004?

As this Kat discovered at the very entrance, it is that it is intended to show that "there was not one but several Cartier-Bressons." Up until his death, in fact, "all the monographic exhibitions supervised by the photographer himself were entirely printed for the occasion as a collection of prints in one or two formats, on paper with the same quality of grain, tone and surface. The result was a very uniform appearance that tended to level out a highly varied range of work. This retrospective respects the historical context of the picture by, whenever possible, using prints made at the time the photographs were taken."

Of course, there is no copyright dispute in sight with this Cartier-Bresson exhibition. But - speaking hypothetically - could a photographer's right of integrity come into question when, after his/her death and for the first time, you break the apparent uniformity of his/her work that he/she himself/herself contributed to creating, and use a number of different printing techniques to show all this?

What is special about the
Centre Pompidou's exhibition

Let's start with French law. Article L-121-1 of the French IP Code apodictically [this is the expression that Dietz used in a 1994 article] states that the author has the perpetual right “au respect de son nom, de sa qualité et de son oeuvre”. 

This provision has been interpreted by French courts in the sense that even mere use of works out of context [without any actual "treatment of the work" being necessary] may amount to an infringement of one's right of integrity. 

When it comes to photographs, is it thus arguable that using printing techniques that are somehow different from those that the author used to employ for his/her exhibitions may amount to a violation of his/her moral rights? To say the least, such claim would not be discarded as being prima facie unacceptable. At the end of the day, moral rights à la française are "enviée des auteurs du monde entier."

Under UK law or even the laws of traditional droit d'auteur traditions, eg Italy, such claim would be more difficult to bring successfully. This is because in both cases the law requires an actual treatment of a work that may be prejudicial to an author’s honour or reputation. Is the use of a printing technique a 'treatment'?

Section Article 20(1) of the Italian Copyright Act vests authors with the right to oppose any distortion, mutilation or any other alteration that may be prejudicial to their honour or reputation.

Similarly to other common law traditions, UK law has been traditionally wary of granting broad protection to moral rights. The right of integrity under UK law draws upon Article 6bis of the Berne Convention, but - according to Cornish, Llewelyn and Aplin, is even in "apparently narrower terms”. 

Section 80 CDPA provides the author with the right not to have his work [done after 1 August 1989: see Sch 1, para 22(1)] subjected to derogatory treatment, ie any addition to, deletion from or alteration to or adaptation of the work (other than literary translations and musical arrangements or transcriptions), that amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author.

Overall, it would seem that the right of integrity under UK law does not protect against non-transformative uses of one’s work. As a result, exact but miniaturised reproductions of artistic works [this was the 1995 Tidy v Trustees of the Natural History Museum case] or colour variations between an original artwork and a reproduction of it [this is the 1999 Pasterfield v Denham decision] may be considered not to infringe the author’s right of integrity.

What do readers think of differences in the scope of moral right protection? Is there anyone who is aware of cases in which courts have considered printing techniques in the context of moral rights claims?