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Photographies of PICASSO’S WORK protected by copyright

Monday 6 September 2004

by Anne Pigeon-Bormans, Avocat au Barreau de Paris, Pierre Lautier

Christian Zervos is an art critic, and the founder of the French publishing company “Cahiers d’Art”. He deceased in 1970, having realized a catalogue on Picasso’s work. To the 22 volumes published during Christian Zervos’ life, between 1938 and 1970, have been added 11 other volumes, the whole representing more than 16000 prints of Picassos’ work and being unanimously recognized as being a reference book on the painter.

The 31st of May 1979, Mr. Yves Sicre de Fontbrune having acquired the ownersip of the Cahiers d’Art Editions, considered he had full ownership on Zervos’ catalogue copyright. On the 26 of April 1996, he sued Mister Alan Wofsy, an American publisher, who had put on sale, at the French book exhibition “The Salon du Livre”, two books on Picasso, which covered respectively both periods 1917/1919 and 1920/1921 and constituted, according to him, a counterfeit of the ZEREVOS catalogue. The “Reunion on National Museums” (French RMN) being also convinced that M. Wofsy’s books counterfeited the Picasso Museum catalogue it published, joined M. De Fontbrune’s demand, as well as M. Ruiz Picasso’s in his capacity of Pablo Picasso’s heir.

On December 8 1998, Paris Court rejected M. de Fontbrune and RMN’s demands on the grounds that neither the pictures (the prints), nor the catalogue could be protected by copyright. Moreover, the Paris Court considered itself unqualified to decide about Picasso’s heir demands, by deciding it concerned the execution of a contract concluded in the United Stated.

Mr. De Fontbrune and the RMN appealed against the above said decision, whereas Ruiz Picasso reached an amicable settlement with Alan Wofsy’s publishing company.

On September 26, 200, the Paris Court of Appeals quashed the Paris First Instance Court decision.

Fist of all, the Court of Appeals considered that by acquiring the Cahier d’Art publications, M. de Fontbrune had acquired ownership on the ZERVOS catalogue and on its pictures, the copyrights being attached to the business ownership. To contest the cease of rights to the benefit of M. de Fontbrune, the defendants invoked Christian Zervo’s testimony dated May 12, 1970, according to which terms the integrality of his property would benefit to the VEZELAY City, under the condition that the VEZELAY City should create a ZERVOS Foundation. Moreover, a letter written by Picasso himself and dated October 27, 1970, expressed that the ZERVOS Foundation will therefrom pursue the publication of the catalogue.

However, the Court of Appeals was not convinced by the defendants’ argumentation. It considered that this question had been settled by a decision of the Court of Appeals of Paris dated November 25, 1977. In that dispute opposing Christian Zervos and the Vézelay City, it appeared that only a single copy of the books published by the Cahier d’Art Editions had been offered at the Vézelay City. The Court of Appeals considered that since only a single copy of each books published by Cahier D’art was concerned, the ownership of the copyrights on the commercial exploitation of the books would remain attached to Cahier d’Art. Furthermore it was decided that Picasso’s words, only engaged him and were therefore of no incidence on the copyrights attached to the Cahier D’art publishing company.

Having the ownership of the copyright on the Christian Zervos’ catalogue, M. de Fontbrune was considered has being entitled to draw an action. Since then, the Court of Appeals examined if the qualification of counterfeit could be accepted. It underlined that the reproduction of an important number of pictures appearing in both of the books at hand had been realized by scan of the ZERVOS and RMN’s catalogues pictures. Besides, the judges insisted on the various similarities existing between the ZERVOS catalogue and Alan Wofsy’s books.

The Paris Court of Appeals therefore concluded that:” Since the only copyright protection of the photography pictures, according to the law, depends on their degree of originality, it must be considered that the pictures in hand satisfy this condition of protection. Therefore, contrarily to what was decided by the first instance judges, it must be considered that rather than being erased by the painter’s talent, the photographer (Zervos) has seeked for the artistic essence of the paintings and that by his choices of lights, lenses, focus and angle, he has expressed his own representation of Picasso’s work and has therefore expressed his own personality, underlining such or such fragment of Picasso’s paintings which appeared especially revealing to him; that this global approach is not the one of a simple technician as the defendants seem to consider the photographer, but reveals the artistic approach of a genuine creator”.

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