The protection of the image of a building under French law: where judges create law

Abstract

Sabine Lipovetsky is an Avocat and Partner at Kahn & Associés in Paris. Sabine is also a Lecturer in Law at Paris X, Nanterre University (France). Emmanuèle de Dampierre is also an Avocat and Associate at Kahn & Associés in Paris. This article highlights a specifically French aspect of law, namely rights in the image of property, offering an overview of the French law relating to the image of a building, in particular where it benefits from copyright protection and is accessible from the public domain. Judges must balance the interests and rights of architects/artists and building owners and use two bodies of law: IP for architects who design an original building and for artists who add new original features to a pre-existing building, and property law for owners. Anyone may reproduce the image of a building, eg via a photograph or a video, subject to three conditions. First, where the building is a work of art, such reproduction is subject to the architect/artist's consent—or that of the holder of the patrimonial rights, who may be the building owner. Secondly, the use of the image must not infringe the architect/artist's moral rights. Finally, irrespective of whether the building is a work of art or not, the use must not cause an abnormal disturbance to the building owner's property rights. Judges have created rights to the benefit of property owners that do not exist in the French Civil Code, interestingly enough in a civil law country. However, traditional legal grounds such as civil liability and privacy rights may be more useful to property owners.