Image exploitation of public and private property: principle of freedom, subject to certain reservations
The Firm is returning to the exploitation, particularly commercial, of the image of property belonging to the public and private domains. The Council of State and the Court of Cassation have established its freedom in principle, subject to existing legislative exceptions. However, the work must also be free of copyright.
- Exclusion of the property right of the State on the image of public goods
The public domain consists of property belonging to a public person (in particular the State, a local authority or a public establishment) which is assigned either for direct public use or for a public service if it is subject to a development that is indispensable for that purpose (article L. 2111-1 of the General Code of the Property of Public Persons).
This may include city halls, town halls, museums and public libraries, fountains, roads and public spaces used for traffic.
Can any person freely capture the image of one of these buildings by photography or video and exploit it, for example for advertising purposes?
This question appeals to both public law and copyright.
The Council of State, seized of this question in 2018, considered that since the image of public buildings is not subject to a property right for the benefit of public persons, its use must remain free, even when it is made for commercial purposes [1].
More specifically, it considered :
- on the one hand, that public persons had no “exclusive right” over the image of property belonging to them, thus preventing this image from constituting, in itself, a dependence on the public domain ;
- and, on the other hand, that neither the taking of pictures of a good in the public domain as such[2], nor the use of these images for commercial purposes could be regarded as a private use of the said domain, the only use that could justify prior authorization and the collection of a royalty.
The public person owning the building could therefore in principle not oppose to the exploitation of its image. At the most, like any owner, it can ask for compensation for any damage that may have been suffered when this use has caused it an abnormal disturbance.
In 2016 the legislator, however, for the sake of economic valorisation, has set an exception to this strict rule [3], by making the exploitation of the image of national domains subject to the authorisation of the domain manager – which, according to the Constitutional Council, can only be refused if the envisaged commercial exploitation damages the image of this property [4] – as well as, if need be, to the payment of a fee.
To this day, this exception concerns only: the Domaine de Chambord (Loir-et-Cher); the Domaine du Louvre and des Tuileries (Paris); the Domaine de Pau (Pyrénées-Atlantiques); the Château d’Angers (Maine-et-Loire); the Palais de l’Élysée (Paris); and the Palais du Rhin (Bas-Rhin)[5].
The exploitation of the image of public domain property must, however, in any case, take into account possible existing copyrights on this property, as defined hereafter.
- Exclusion of a private property right on the image of one’s property
As early as 2004, the Supreme Court of Appeal had ruled, with regard to private property – not falling within the public domain as defined above – “that the owner of a thing does not have an exclusive right over its image”.
The Court added that the owner “may, however, oppose the use of this image by a third party when it causes an abnormal trouble”[6], such a trouble may, in particular, be constituted by an invasion of privacy [7].
Thus, the exploitation of the image of private property – such as, a photograph of a hotel – is in principle free, subject to the important reservation of copyright that may apply to it.
- Designers’ intellectual property rights relating to public and private buildings
During the period of copyright protection, intellectual property protects works of the mind “whatever their genre, form of expression, merit or purpose” (Article L. 112-1 of the Intellectual Property Code), provided they are original. This incorporeal property is distinct from the property of the physical support of the work.
The architect of a public building, the painter who created the facade, the sculptor of a fountain placed in a public square can thus perfectly claim their copyright on their respective works (the building, the facade, the fountain), provided that they bear the imprint of their personality.
This intellectual property is distinct from the property right on the physical copy of the work: the first belongs to the author of the work (the architect, painter or sculptor, cited as an example), while the second belongs to the owner of the building in which the work is integrated. However, the rights of the author of the work are often assigned by contract to the owner of the building, to facilitate the exercise of these rights.
Copyright owners can thus oppose the reproduction of the image of their work without their authorization, which would be considered as copyright infringement.
It should thus be noted that when a film includes works that are still protected by copyright, royalties are due to the copyright holders of these works.
As an exception, the law authorizes the reproduction of these goods, notwithstanding the rights of the author:
- When the work is not the main subject of the photograph or video in question, and is only an accessory and/or is in the background ;
- When it concerns an architectural work or sculpture placed on the public highway, exploited by a natural person for non-commercial purposes. This legislative exception was introduced in 2016 by the law on freedom of creation, architecture and heritage [8]; it is commonly called the “Instagram exception”, in that it enshrines the contra legem use of users of this social network, consisting in publishing online photographs of works taken on the public highway, to the detriment of the rights of their authors.
It should be noted that at the expiration of copyright, seventy (70) years after the author’s death (article 123-1 of the same code), these assets become free of exploitation, (i) subject to the author’s moral rights, which never expire – although they are attenuated in this respect, and (ii) in compliance with the protection of national monuments, as previously explained.
With regard to works of visual art, Article 14 of the Directive on Copyright and Related Rights in the Digital Single Market[9] requires Member States to provide that « when [its term of protection] has expired, any material resulting from an act of reproduction of that work shall not be subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation. »
This “public domain” thus constituted is to be compared with the Italian law protecting the image of national monuments even outside the term of protection, and no doubt to be articulated with the French cultural exception as well as with cases of infringement of moral rights, and particularly in the event that the work is denatured.
The Rodin Museum, holder of the moral rights of the artist Auguste Rodin, whose works have fallen into the public domain, was thus able to successfully sue a manufacturer of sculptures presented for sale as Rodin originals, arguing that a distorted reproduction of Rodin’s masterpieces constituted an infringement of respect for his name and artistic integrity[10].
In conclusion: The copyrights that can be exercised on private or public property thus prevent the free exploitation of their images. In their absence, however, the exploitation of these images is free, subject to the abnormal disturbances that this exploitation may cause to the owner.
As an exception, prior authorization must be obtained, in any case, for the exploitation of the image of the few public buildings identified above, this authorization may be subject to the payment of a fee.
- Contractual exclusion
Finally, we should reserve the possibility that the use of the image of the property in question would be limited contractually: some museums, such as the Louvre, thus prescribe restrictive stipulations in their Visiting Regulations, prohibiting the photography or reproduction of the works exhibited there, or authorizing it under certain conditions.
These restrictions, resulting from contracts entered into with visitors, inasmuch as they are freely agreed upon, do not appear to contradict the legal provisions or case law referred to above.
By the IP/IT and Public Law teams of the Firm
Source: Council of State
1] EC, Ass. 13 April 2018, Etablissement public du domaine national de Chambord, req. no. 397047.
2] The Conseil d’État reserves the right to reserve the case in which such a shot implies an occupation or use of the property that exceeds the right of use belonging to all, thus characterizing a private use of the domain. Thus, the use of the image of movable property located inside a public building, such as the statues of a museum, is likely to constitute a private use requiring the prior authorization of the public establishment that owns the property and, if necessary, the establishment of a fee: CE, 23 December 2016, Commune de Tours, req. no. 378879.
3] Law n° 2016-925 of July 7, 2016 relating to the freedom of creation, architecture and heritage.
4] Decision no. 2017-687 QPC of February 2, 2018.
5] Articles L. 621-42 and R. 621-98 of the Heritage Code, resulting from Decree n°2017-720 of May 2, 2017.
6] Court of Cassation, May 7, 2004, no. 02.10450, Société Hôtel de Girancourt.
7] See for example, rejecting such an infringement: Paris Court of Appeals, March 27, 2019, no. 18/04947, Maison des rochers.
8] Law no. 2016-925 of July 7, 2016 relating to freedom of creation, architecture and heritage.
9] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC. 10] Court of Cassation, October 25, 2016, no. 15.84620,
10] Court of Cassation, October 25, 2016, no. 15.84620, Rodin Museum.