French Moral Rights May Prevent Copy of Rodin’s Public Domain Sculptures

As reported by several French newspapers [here and here], the “Gruppo Mondiale”, a company incorporated in Lichtenstein, is on trial in the Paris criminal court for counterfeiting and false advertising for having sold several copies of Auguste Rodin’s sculptures.

According to a court expert, some 1,700 of such copies have been sold, in a scheme on a scale which has been described as “quasi industrial” by the District Attorney (DA), who has asked the court to levy a 150,000 Euros fine. The DA has also asked the court to sentence Gary Snell, an American allegedly managing the Gruppo Mondiale company, to eight months in prison and a 30,000 Euros fine.

The case is interesting because Auguste Rodin died in November 1917 and thus his works are in the public domain. So why is it possible to file a suit alleging that some of Rodin’s works have been counterfeited? 

Eeet iz a reproduction, oui?

Under article 123-1 of the French Intellectual Property code, authors enjoy patrimonial rights during their lifetime, which include the exclusive right to exploit their works in any form whatsoever and to derive monetary profit from it. These rights survive the author’s death for seventy years.

Also, under article L.121-1 of the same code, authors have moral rights, that is, the right to respect for their name, authorship and work. Such right is “perpetual, inalienable and imprescriptible. It may be transmitted mortis causa to the heirs of the author.  Exercise may be conferred on another person under the provisions of a will.”

Auguste Rodin donated all his works to the French government and it is the Musée Rodin in Paris which is vested with the moral rights in these works by a February 1993 decree. Article 2.5 of this decree defines what is considered to be first editions of Rodin bronzes: they must be  taken from the molds and plaster models in the MuséeRodin collections; these editions are limited to twelve, numbered from 1/8 to 8/8 and I/IV to IV/ V, including existing editions.

While French law does not prevent copying Rodin’s works, they must be clearly marked as such, because under article 8 of the Decree No.81-255 of March 3, 1981 about fraud prevention in art and collectibles transactions, “any facsimile, molding, copy or other reproduction of a work of art or a collectible must be designated as such.”

The DA argued that even though Rodin's work are in the public domain and may thus be reproduced freely, such reproductive freedom must be exercised with respect for the moral rights of the author. Both the moral rights of respect for the work and the author’s name are at stake in this case.

The right of respect for the author’s name has not been respected here, according to the DA. Snell allegedly bought original Rodin plasters and Gruppo Mondiale used them to create molds. The statues have then been mass-produced by a foundry from these molds. Some of these reproductions sported a Rodin signature and sometimes even the mark of the foundry used by Rodin, the Rudier foundry, instead of the mark of the Italian foundry who actually manufactured these copies. This would violate Rodin’s perpetual moral rights in his name. As such, the DA argued that these reproductions have to be considered as counterfeits under French law.

Also, some of the reproductions were so poorly made that the DA also argued that they were also a violation of Rodin’s moral right to respect of his works, claiming the copies betrayed the artist’s vision.

These reproductions were not sold in France, and the defense is arguing that the French law cannot apply to the case. But the DA is arguing that they were sold on a web site which could be accessed from France.

The court will render its judgment next month.