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Sculpture counterfeited by another artist: what rights belong to the original artist?

Home > Intellectual Property in France | Published 2015-10-08

You are a well known sculptor with your work on display. You realize that another artist has re-created one of your pieces, turning it into an industrial or commercialized product, without asking for your authorization first. You think that your rights have been wronged and wish to know how you can take further action.

What are the rights attached to a work of sculpture?

Several rights stem from the original purpose of a sculpture.

The Protection by copyright simply due to creation

Article L111-1 of the Code of Intellectual Property states that “the author of a piece of intellectual property has the exclusive right to the incorporeal hereditaments of a piece, and can enforce this against all”

So that copyright can be recognized, it is necessary that it fulfills two conditions.

The sculpture, even if it is not completed, must have a shape. In this way the concepts, ideas… are not protectable by copyright, because they are not materials. For example, the artist Cristo had wrapped up the “Pont Neuf,” and so his final piece was recognized as protectable by copyright by court.  However, the concept to wrap up a monument, an object, or a natural element… is not protected.

The second condition has been held by courts for a long time: it is necessary that the object be original, that is to say that it should show a personal mark form its artist.

Once all conditions are filled, one can easily assume that the piece is protected by copyright. In cases of contention only the judge can certify this however.

Other rights can equally be added to those bestowed by copyright. 

The Possible Rights of Industrial Property in the case of Commercial Exploitation

One can now question the law of design. Article L5111-1 of the Code of Intellectual Property states that “it may be protected as the design or model of the appearance of a product, or of a part of a product, characterized in particular by the lines, the contours, the colors, the shape, the texture, or the materials. These characteristics can be those that produce the piece itself or its ornamentation.” The law follows by giving a definition of a product that is “a complete industrial or artisanal object, including the parts that were conceived to be assembled in a complex product, the packaging, the presentations, the graphic symbols, and the typographic characters, but excluding computer programs.”

Thus the protection according to laws of design can be applied to commercialized industrial products. A sculpture with only ornamental purpose can qualify.

It is also possible to envisage the protection of this sculpture through trademark law. But again, is necessary to use the given trademark for commercial purposes.

How to know if my sculpture has been counterfeited?

As the creator one is bestowed patrimonial and moral rights.

Patrimonial rights state the right to reproduction and the right to representation (one can also equally associate it with “le droit de suite” or “the right of pursuit”). Thus it is obligatory for all reproduction and representation of a piece by a third party to have received your authorization and also to negotiate financial returns before production, so as to not be found guilty for counterfeiting.

Moral rights imply the right to respect of one’s name, the quality of the original artist and equally to the artist’s piece. Thus if the principal characteristics of the piece, which give it it’s originality, have been repeated, even being a faithful copy, one can consider it an attack on one’s rights as the artist, ranging anywhere from one’s moral rights to one’s patrimonial rights.

What possible methods can I use to defend the rights of my creation against a counterfeiter?

It is strongly advised to all artists to gather proof of their authorship on a specific date. This means obtaining the proof that you were truly the creator of the original piece on the date that you created it by deposit. In case of contention, this element can play into your favor when agreeing upon proving that the third party has copied the piece of which you were the original creator and that you are the person entitled to any related rights.

It is also recommended to send oneself, by unopened mail, all of the designs of the piece, accompanied by a photograph and the process of creation (every element that you judge as useful possible proof).

Finally, it is strongly encouraged you by buy an “envelope Soleau” (Soleau envelope) from the INPI (The National Institute of Industrial Property) to give evidence of the elements of proof that would be apparent to a study by a bailiff and notaries, and that would be apparent to a society by a “gestion collective de droits.”  In effect, these deposits give stronger legal proof as far as evidence of your authorship of the piece.

In case of evident counterfeit of one of your sculptures by another designer in affiliation with a company that has more of a reputation within the milieu, the original artist can find themselves feeling powerless, and think that there is no chance against the other party. It is advisable then to find a lawyer knowledgeable in the laws of intellectual property.

Thus, as the artist of the original piece we believe you are within your right, and so we at Picovschi Law Firm are here to find the most optimal solutions to any of your problems. From attempting to find the quickest solution, transactional protocol, quick jurisdictional action, or action before district court… a number of solutions are available to you to to protect you and your rights from possible counterfeiting.

This article is available online for public information purposes. It is updated regularly, as needed. Due to the constant evolution of the laws and the legal system, we cannot guarantee that the information in this article is still applicable. We invite you to contact us with any legal questions or concerns you have regarding this topic at +33 1 56 79 11 00. In no way can this firm be held liable for articles that contain inaccuracies or are now out of date.

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