# Primary Sources on Copyright - Record Viewer
Court of Cassation on moral rights, Paris (1902)

Source: Bibliothèque universitaire de Poitiers (SCD) : Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1903.1.5

Citation:
Court of Cassation on moral rights, Paris (1902), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

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Chapter 1 Page 1


DALLOZ
GENERAL JURISPRUDENCE
_____

PERIODICALLY ARRANGED CASE BOOK. – 1903
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FIRST PART – COURT OF CASSATION.

      CIVIL LAW CHAMBER. 25 June 1902. - 1º, 2º, 3º and 4º Joint estate,
acquests, personal assets, literary and artistic property, nature of this property,
musical works, dissolution of community, total estate to be divided – literary and
artistic property, characters, musical works, author’s rights, modification,
suppression.

      The right to exclusively exploit the proceeds of a literary or artistic work
(in this particular case, of a musical score), reserved by law to the author of that
Work, and, after his decease, to his family, for a limited time, constitutes a property
[bien] which can be traded and which is, from then on, in the absence of any legal
provisions to the contrary, subject to the general rules of the Code Civil, insofar as
these are compatible with the particular nature of this right (1);
      In particular, the financial advantages attached to the exploitation of a work
of the mind form, in a regime of community of acquests, according to the terms of Art.
1498 of the Code Civil, part of the assets of joint estate as the proceeds of the
married couple’s industry, for the same reason as the profits which result from an
industrial or commercial enterprise (2);
      Consequently, after the dissolution of a community of acquests, the total estate
to be divided [la masse partageable] should, in the absence of a clause to the contrary
in the marriage contract, also comprise the monopoly of exploitation attaching to the
works published by one or the other of the spouses during the conjugal union (3);
      However, the pooling [mise en commun] of this emolument cannot derogate from
the right of the author, which is inherent in his very personality, to subsequently
make modifications to his creation, or even to suppress it, provided that he
is not at all acting with the aim of causing vexation to his former spouse, or to
the latter’s representatives (4).

[...]

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6
FIRST PART

      Mr Lecocq, music composer, and Mlle Cinquin, his spouse, had, by a prenuptial
agreement dated 30th March, 1876, adopted the regime of community reduced to
acquests [communauté réduite aux acquêts].* According to Article 3 of
this agreement, the future husband had included in his contributions in marriage a
certain number of musical works previously composed by him and excluded some
others, but without specifying anything about the musical scores he might compose
in the future. Following the divorce, pronounced in 1897 by the Tribunal of the Seine,
between the man Lecocq and his wife, the wife being to blame, Maître Rey,
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[...]

____________
*) I.e. a marriage settlement whereby only acquests (property acquired after
marriage) accrue to the community.

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COURT OF CASSATION

notary in Paris, had to proceed with the liquidation and the partition of the
community that existed between the couple. Mrs Cinquin disputed the
liquidation statement as it failed to include in the total estate to be divided [la masse
partageable] the property in musical works composed by her husband since
the day of their marriage until the day of its dissolution. By a judgement, pronounced
on 21st May, 1898, the Tribunal of the Seine decided, in accordance with
Mrs Cinquin’s claims, that the liquidation statement should be altered so as
to declare Mrs Cinquin the co-proprietor of half of all the musical works
composed by Mr Lecocq during their marriage.
      Upon an appeal lodged by Mr Lecocq, the Court of Appeal of
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8
FIRST PART

Paris (1st Chamber. – Messrs Forichon, 1st pr. – Jacomy, assistant public prosecutor)
pronounced, on 1st Feb., 1900, the following decision, reversing the judgment of the
Tribunal of the Seine:

      Considering that a published or performed musical work did not constitute, under
the Laws of 13-19th January, 1791 and 19-24th July, 1793, an asset which was susceptible
of a property right, as it existed then and under the previous legislation, but merely gave
the author special, temporary rights, which were different from the absolute right of
perpetual property; – Considering that therefore, the Code Civil, which did not modify
anything in this respect, could not put them in the same category as the ordinary
property of common right [de droit commun] which it was meant to regulate, nor could it
mix them up with the latter and include them in the personal or real estate of its article
516; that it could not either leave them to be forgotten; and that, consequently, by its
silence, especially in its art. 529, it excluded them from its classification; -
Considering that the subsequent decrees and laws did not either attribute to them the
nature of a property of common right, by including them in the two categories of estate
envisaged by the Code Civil; indeed, that the Decree of 5th February, 1810 and the
Code Pénal of the same year, the Laws of 4th April, 1854, 14th July, 1866, and 12th
February, 1895 have protected, regulated and expanded these rights, without, though,
changing their legal nature; - Considering that, on the contrary, the reporter of the Law
of 19th July, 1793, asserted that they were a property of a kind completely different to
that of other properties, and that the reporters of the two most recent Laws of 1866 and
1898 in their turn came up with identical statements; - That all the aforementioned texts
are exclusive of the property right of Art. 544 of the Code Civil by the suppression of
perpetuity without previous compensation; that, besides, Art. 6 of the Constitution of
14th January, 1852, granted to the

[2nd column:]

Head of State, acting without the intervention of Parliament, no more than the power to
conclude treaties of peace, alliance or commerce; and that he nevertheless signed
numerous international treaties on “artistic property”, because these were not, in fact,
concerned with ordinary property rights, but only with the protection of a monopoly of
exploitation; that, moreover, these diplomatic contracts have always been recognized
as valid; - Considering, finally, that these rights have always been and remained no more
than exclusive privileges for a temporary exploitation; - That they thus remain alongside
to, and separate from, the Code Civil’s classifications; and that the question as to whether
or not they fall within the two spouse’s joint estate cannot at all be resolved by reference
to Articles 516 or 517, 1401 or 1498 of the Code Civil; – Considering that the special laws
have not either changed this nature of a personal privilege, nor, essentially, to its legal
sense as it is normally expressed; that indeed, the Decree of 19th January, 1791, requires,
for the performance of a play by a living author, his formal and written consent, and that the
Law of 1793 grants composers of music an exclusive right for life; that Art. 39 of the Decree of
5th February, 1810, gives in all cases to the author’s children, for twenty years following the
death of the latter’s widow, his rights in their entirety, which therefore excludes them in
principle from the joint estate; that the Law of 14th July, 1866 has extended to all
matrimonial settlements advantages which are more favourable for the surviving
spouse, especially before the modification of Art. 767 of the Code Civil by the
Law of 9th March, 1891; that it only considers a couple’s joint estate to the extent of
giving it, in addition, the income from author’s rights realized before its dissolution,
but not those rights as such; - That if it had wanted to go further, before the Law of
1891, it would have explicitly enacted such a provision; and that, on the contrary, it
pronounced two forfeitures of possession [jouissance] which are in logical terms
not very compatible
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COURT OF CASSATION

with a full property being divided in half when these forfeitures have been incurred;
that the Law of 9th March, 1891, did not either include in a married couple’s joint
estate the property in these rights, even if its discussion in Parliament brought up the
concordance between its general provisions and the specific Law of 14th July, 1866;
- Considering, besides, that if it were otherwise, the most detrimental results would
immediately have manifested themselves, regardless of whether distribution of the
joint estate or repurchase by the husband was chosen; - That these two options
would both be rendered as good as unworkable because of the difficulty in evaluating
the shares of the estate in cash terms or comparing them according to their market
value, since the revenues would vary, depending on the taste of the public and the
opportunities for performance and success; that, as the joint possession would
begin from the very instant that the community of the marriage settlement ended, this
would expose the separated spouses, or the surviving spouse and the heirs of the
deceased, to an era of inextricable difficulties with regard to the handling, in France
and abroad, of a fortune whose administration is so very tricky; that the wife or her
beneficiaries would become masters, like the author himself, of the most sacred rights,
the most personal, the most difficult to snatch away with any sort of justification from
the productive will [volonté] they emanate from, from their control by an intelligence
of which they are, as it were, the substance; - That a composer whose moral rights
to a musical score, even if transferred, are not disputed by anyone, would not be able
to modify his creation, to embellish it with the fruits of his continued labour or increased
talent, to destroy it if necessary, if he considers it to be inferior to the ideal towards which
he feels himself being carried or elevated; - Considering that a divorce with the possibility
of another marriage has aggravated even further these dangerous anomalies by allowing
there to emerge, in the person of the unworthy wife, an adversary billeted in her rights
which enable her to importune by her self-interested obsessions the artist’s conscience
after her husband’s death, and to torment him in the ideas which he has given to the
public, just as she tormented him previously during their marriage; - Considering that,
without doubt, a devoted wife could, on the contrary, by her care, the ingenuity of her taste
or her affectionate encouragements, help her husband in his intellectual work; but that for
the law at least, this very special collaboration finds its financial satisfaction in half the
revenues which enriched their joint estate; - Considering that these are the principles,
brought out of the legal provisions on this matter, in their text and spirit, that should apply
in this trial; … - Reverses the judgment on appeal and decide again; - Asserts that it is with
good reason that the notary who drew up the liquidation settlement did not include in the
total estate to be divided the property in Lecocq’s musical and other works; - Confirms
purely and simply the criticized liquidation.

      APPEAL to the Court of Cassation by Mrs Cinquin for violation of Art. 1498 of the
Code Civil, since the criticized ruling has decided that the author’s rights produced by her
husband’s musical works, being the latter’s own property, did not fall within their joint
estate and should, consequently, not be included in the total estate to be divided in the
dissolution of the said community, whereas the law does not distinguish between acquests
made during the marriage, and expressly stipulates that this category should include
everything that derives from the industry of the spouses.
      The Attorney General, Mr Baudouin, has, in this case, concluded in the following
terms:

      “The question you have to answer is not new. It had already been settled by the
Court of Cassation, and one would have thought that, after the ruling of your
Chamber of Petitions on 16th August, 1880 (D.P. 81.1.25), the issue had been
resolved once and for all, when the criticized decision, breaking with a well-established
jurisprudence, brought this question to the attention of the public again for a few days.
      Does the author’s right which belongs to one of the spouses under the settlement of
joint estate (which may be legal or reduced to acquests) form part of the assets [actif] of
this joint estate?
      Here is the problem to be solved. And its very terms serve to immediately delimit
the scope of the discussion. The question is not about the profits yielded by the exercise
of the author’s right belonging to the spouse who is a married under the joint property
system. Everyone agrees that these profits should fall within the joint estate, just like, in
general, all the proceeds from property which belongs to the couple. This is the opinion
even of those who, such as Messrs Pouillet, Renouard, and Saleilles, have become the
official protagonists of the thesis admitted by the criticized decision.

[2nd column:]

Because, indeed, when an author transfers his right, totally or partly during the period of
joint estate, the sums he receives in return for this cession do not have anything in
themselves which could give them a personal nature. It is the income of the creative
industry of the spouse – income which, represented by a sum of money, falls within
the joint estate, just like the price raised for a house or field. And this is so, regardless of
whether the sums were received for exploitation of his work by the author when he
was still alive or whether they haven’t been received yet and are still being owed.
«This debt, says M. Pouillet (Propriété littéraire, n°183) is the equivalent of an author’s
right which has been transferred. And yet if instead of a debt, the author had received
a fixed sum in exchange of his right, this sum would had fallen within the joint estate.
What difference can there be between the price immediately received and the price to
be received after the expiry of a certain term if not that term itself and the delay which
it entails for the payment?».
      On this point there is no doubt and it is not what we are discussing here. Rather,
what we have to find out is whether the author’s right itself – what by common agreement
is referred to as literary and artistic property – falls within the joint estate. This is the crux
of the controversy that divides us, and with one word I will now clarify the terms of the
debate.
      I maintain, with the appeal, that the right which authors have to their works,
considered in its legal nature, is an intangible movable property right [droit incorporel
mobilier]. Now, according to the terms of Art. 1401 of the Code Civil, all the existing
and future personal estate of the couple falls within their joint estate and, under Art.
1498, all income resulting from the spouses’ joint industry is an acquest of the joint
estate. Upon the dissolution of the joint estate, all the assets of this community have
to be distributed between the spouses or their heirs. Thus, the author’s right falls
within the joint estate and forms part of assets which have to be divided when the
latter is dissolved.
      This is the system on whose side I am, and speaking in its favour it has the
almost unanimous authority of leading scholars [princes de la science] and of your
Chamber of Petitions, in the only ruling on this matter which the Court has had occasion
to pronounce until this day.
      What is retorted against our line of argument, which in its simplicity is so clear and
powerful?
      The author’s right, it is argued, is no doubt a movable property right; but it is of a
specific nature; it is regulated by a special legislation which departs from the common
law. It is less of a property than, rather, an exclusive right, attached to the person of the
author in whom alone it is vested, during his lifetime, without any third party being able
to share it with him. By its nature, it is contrary to any pooling of assets [mise en
communauté], and nothing could demonstrate this better than the shocking consequences
which the application of our system would lead to.
      So here we have the terms of the problem summarized in all their aspects.
      In order to resolve it, I think we should first of all recall the principles which must
always guide us in the interpretation of the laws. It is a general rule that in matters
governed by a special law, where this law is silent it is necessary to seek out and
apply common law. If special laws are, indeed, to be understood according to their
own system, they are at the same time supposed to derogate from the general laws
only on those points which they regulate explicitly or at least implicitly. This is what
all scholars agree on (Merlin, Répertoire, v° Loi, § 2, sect. 2, n°4; Mailher de
Chassat, Interprétation des lois, n°126; Delisle, Principes de l’interprétation des lois,
des actes, etc. vol. 2, p 502; Jur. gén., v° Lois, n°501 et Supplément, eod. v° n°441).
And this is what you always have decided yourselves (See, in particular, the petition
of 16 July, 1822, Jur. gén. v° Enregistrement, n°4817; Civ. Cass., 9 June, 1856, D.P.
56.1.233).
      This rule, unquestionable in itself, is even more certain where literary property is
concerned. We will read again the specific texts which apply to the latter and, in every
line, so to speak, we will see that they refer back to the Code Civil, so that there is no
way we can doubt the validity of applying the general principles which regulate joint
estate to the specific property we are considering.
      What are these principles?
      If we are dealing with the statutory matrimonial regime [communaute legale], then
Art. 1401 [Code Civil] stipulates: «The joint estate is actively composed of: 1° all
the movable property that the spouses owned at the day of the celebration of the
marriage, together with all the movable property which falls to them during the
marriage by inheritance, or even by donation if the donor did not express
otherwise…».
      And If we are dealing with a marriage settlement where the community is reduced
to acquests? Under Art. 1498:
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FIRST PART

« When the spouses stipulate that there will only be a community reduced to
acquests between them, they are supposed to exclude from the community each
others’ present and future debts as well as their present and future movable property.
In this case, and after each of the spouses has deducted his or her duly justified
contributions, the distribution is limited to the property acquired by the spouses
together or separately during the marriage and coming from the common industry, as well
as from the savings made on the basis of the proceeds and income of the two spouses’ goods ».
      Now, what is the author’s right? What is its legal nature? And in which category
of goods should we include it?
      The Code Civil distinguishes only two categories of goods: Art. 516: « All goods are
either movable or immovable ». And this distinction applies, as intended by the
legislator, both to intangible rights and tangible things (Art. 526 and 529).
      Nobody would maintain that the author’s right could be regarded as a real
property right [droit immobilier]. It does not present the slightest analogy with land
[fonds de terre], buildings (Art. 518) or all those things put in the same category by
the law by virtue of their purpose (art. 523), or with all those land ownership rights of
usufruct or passage which are immovable only because of the nature of the
real estate to which they are attached (Art. 526).
      Therefore, it is necessarily a movable property right, either because one
includes it amongst movables by nature (Art. 528), or, rather, because one has
it come under the movables by determination of the law under the terms of Art.
529, like the actions and duties whose object consists of movable assets
[effets mobiliers], perpetual or life annuities, with which the author’s right presents
the most striking analogy according to M. Renouard (Droits d’auteur, vol.2, p 250). This
is maintained by Messrs Demolombe, Code Civil, vol.9, nrs 437-438; Aubry and Rau,
Droit civil français, 5th ed., vol.2 p 48; Taulier, Droit civil, vol. 5, p 46; Laurent,
Principes de Droit civil, vol. 5, nr. 512; Jur. gén., v° Biens, n°213.
      This is also what M. Pouillet (Propriété littéraire, n°171) upholds: « The author’s
right is movable, he says… If there is one thing that is unquestionable, then it is that
the author’s right is not immovable, that it does not present the slightest analogy
with immovables or things classed together with them by the law »; but, he adds: « it
is neither a physical movable, nor a movable by determination of the law… It is a
movable of a specific nature which, most certainly by a deliberate omission, has
remained outside of the provisions of the law ».
      And why is that? we might ask. An omission? On what grounds should we admit
such a supposition? « On the grounds that, as M. Pouillet says, this right is not
mentioned in Art. 529 ».
      But is the enumeration in Art. 529 really restrictive? Nobody claims that (Planiol, Traité
élém. de droit civil, vol.1, nr. 870; Nouveau Code Civil, annotated by Dalloz, on Art. 529-2°).
      In contrast to M. Pouillet, the criticized decision does not claim that the legislator
forgot about the author’s right. « Whereas, it says, the Code Civil could not classify
it together with the ordinary property of common law which it regulated, nor mix it up
with the latter and include it in the movable or immovable goods of Art. 516; whereas
it could not either forget about them, consequently, by its silence, especially in Art. 529,
it excluded author’s rights from its classification ».
      Surely, Gentlemen, this intention of excluding author’s rights should at least stem
from something concrete?! So where was this intention expressed? Where can we find
a word which allows us to presuppose it? I would be able to understand that this was so
if it were only the author’s right which were omitted from the enumeration in Art. 529.
But how many other rights are not mentioned in this text which everyone assumes to be
included in its purport! Such is the case, for example, with commercial assets [fonds de
commerce] (Demolombe, vol.9, p 403-420; Aubry and Rau, vol. 2, p 28; Laurent, vol.5,
p 513; Rodière and Pont, Contrat de marriage, vol. 1, p 365); with offices granted by the
State – here, by the way, the Code breaks new ground, since ancient law considered these
to be immovable; nowadays, everyone recognizes them as movables (Demolombe, vol. 9,
nrs 437-438; Aubry and Rau, 5th ed., vol. 2, p. 38; Planiol, vol. 1, p 872; Jur. Gén. v° Biens,
n°212 et v° Offices, n°32; Dard, Offices, p 260), patents (Pouillet, Traité des brevets d’invention,
n°197, Picard and Olin, Traité des Brevets d’invention, n°439).
      Let us therefore say it clearly: the enumeration of Art. 529 is not restrictive, and
there is nothing that entitles us to believe that the silence which it kept on the subject of
author’s rights was intended to exclude the movable nature of this right.
      And since, secondly, the law only admits two classifications of goods, movable and
immovable, since the author’s right must necessarily go under one or the other, and since,
as everyone agrees, it cannot be an immovable, it must necessarily be an intangible
movable property right.
      If this is true, and this is now unquestionable, then it falls under the scope of Art.
1401 of the Code Civil: it is part of the assets of joint estate in marriage.
      And the defendant should not claim, as he did in his writings, that this joint estate
does not include all the movable goods, that it has been admitted now that it does not
include movable goods whose insignificant trade value pales and disappears in the
face of their moral value, such as family portraits, the medals and uniforms of the
deceased, the honorary gifts which he received (As is argued by Troplong,

[2nd column:]

Contrat de marriage, vol.1, p. 449; Guillouard, Contrat de marriage, vol.1, p 387; Baudry-
Lacantinerie, Contrat de marriage, vol.1, p 467; Bastia, 26 February 1840, Jur. gén., v°
Contrat de marriage, n°649).
      This rule, which is entirely of convenience, does not rest on any legal text.
And it is discarded no less unanimously when these goods possesses a significant or
substantial financial value. This is what has been decided many times, if not with regard
to joint estate in marriage, then at least in inheritance cases where it has been decided
that these goods should be included in the total estate to be divided and should be
distributed in kind [partagés en nature] or sold if they have a real trade value (Lyon,
20 Dec. 1861, D. P. 62. 2. 7; Paris, 19 March, 1864. D. P. 64.2.58; Aubry and Rau,
vol. 6, p 510; Dutruc, Traité du partage, n°266; Mollot, Des liquidations judiciaries, n°176).
      If the author’s right is a movable property right and if it falls within the statutory
joint estate, under the terms of Art. 1401, it is no less certain that it must also fall within
the community reduced to acquests of Art. 1498 of the Code Civil. In that case the
movable or immovable nature of this right is of little consequence. However, all the
income coming from the common industry of the spouses during the marriage, as
well as from any savings made on the basis of the proceeds and income of the two
spouses’ goods constitute the acquests of their joint estate. That is what we are
told by Messrs Aubry and Ray, 4th ed., vol.5, p. 448: « By acquests we mean
everything that, over the course of the community, is acquired by the spouses together
or separately in exchange for payment, and everything that, during the same
period of time, comes from their industry, that is to say all the revenue and profits
which they derive from the exercise of their talents, capacities or any other aptitudes ».
And they add, note 3: « the second paragraph of Art. 1498 uses the words « common
industry »; but it is evident that with these expressions, which are not quite exact, the
legislator wanted to designate the industry of one or the other spouse ». It is obvious
that the author’s right, the literary or artistic property is the product of the work of the
artist, of the author. This is essentially the fruit of the capital which is constituted of
intelligence. « What belongs to us, Locré once said, is our mind [esprit] and the knowledge
with which we enriched it. These goods are not outside of ourselves, they are
ourselves; they are our true and most endurable treasures [richesses] ». The literary work,
the fruit of this treasure, is therefore the acquest of the community if produced during
the marriage, just as much as the sum of money which serves as the remuneration of the
manual work carried out by a worker or of a lawyer or doctor’s intellectual effort, as well as
any commercial assets acquired during the community (Paris, 22 March 1834; Metz, 3 June
1841, Jur. Gén. v° Contrat de marriage, n°646; Nancy, 6 June 1888, D.P. 89.2. 180); and this
also applies to offices (Agen, 2 dec. 1836, Jur. Gén., eod. v°, n°633); and patents (Pouillet,
Brevets d’invention, n°198; Blanc, p 514; Nouguier, n°346; Calmels, n°443), which, if created
during the marriage, fall within the acquests’ community, without it ever having occurred to
anyone to maintain that there are certain sui generis goods that should be excluded from it.
      Isn’t this all clear and simple? It is precisely this which is criticized by the defence.
According to the latter, it is too simple: it is too disdainful towards the nuances and the
complexity of the question. And following one of the most eminent jurists of the Faculty of
Law in Paris, M. Saleilles, whom I feel tempted to reproach for his enthusiasm for the
nebulous concepts of the German school, which he seems to prefers to the clarity of our
nation’s genius, the defence attempts to build a specious theory to justify the decision.
Literary property, so argues the defence, is not an ordinary property: it is a real misuse of
the term to give it this title and to pretend to deduce from it the validity of applying common
law to it. In reality, it is a specific right, sui generis: it is not distinct from the person of its
author; it becomes identified by essence with his being; it embodies a prerogative of his
personality; it can only be detached from it with his death. And, consequently, it cannot fall
within the realm of community, for this would have the effect of putting it into joint possession,
and in the case of a dissolution of the community, it would be subjected to partition, that is to
something which is incompatible with its very essence.
      My view is that they are talking a lot of hot air, that they are letting themselves be
deluded by the appearance of all these fine words. It does not worry me very much that the
name of literary property was wrongly applied to the author’s right, and that this appellation
indeed brings ideas to mind which are not quite accurate. I willingly accept, even if there are
still lots of things to say on this point, that the author’s right is not a property in the ordinary
sense of the word. I admit, using the formula you yourself gave in the last statement of your
case law, that all it confers on the author in whom it is vested is « the exclusive privilege of
a temporary exploitation » (Petition, 25 July, 1887, Report of M. the judge Lepelletier, D. P.
88.1.5 Comp. Civ. Rej. 14 mars 1900, Report of M. Rau, and on the conclusions of M.
Desjardins, D.P. 1900. 1. 497). I therefore give satisfaction to all the demands of the modern
critics. Are we then to conclude from this that the author’s right is, by its nature, by its
essence, exclusively attached to the person of the author, to such an extent that it cannot be
detached from him and that it is therefore exempt from the application of Art. 1401?
      Indeed, there do exist in our legislation some rights which display


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this specific character of not being separable from the person they are exclusively
attached to. Article 1166 of the Code Civil mentions them in order to state that they
cannot be exercised by the creditors of that person. Which, therefore, are these rights
and by what characteristic features can we recognize them? Nobody has given a
complete and precise definition of them (Jur. Gén., Supplément v° Obligations, n°299).
But we all concur in recognizing them as not being part of the patrimony, as not being
in bonis, on the market, as not being transferable, seizable; we agree that they live and
die with the person they belong to: such are the right to administer one’s own fortune, to
make contracts; such are the rights stemming from the quality of husband, father or
mother, parents. Yes, all these rights are personal, ossibus haerent [Lat. ‘they hang by
the bones’]; they cannot exist beyond the person to whom they belong; they cannot be
detached from him.
      Can the author’s right be included in this category? Our system is criticized for
being too disdainful of nuances, for not going into the innermost recesses of the law by
a sufficiently scholarly analysis. Let us therefore probe into the author’s right and find out
what its object is! Is it the author’s idea, his conception, his ability to produce a master-
piece? If it is, then I share the respondent’s opinion. For that is an essentially personal
ability: «it is, to use an expression of the Attorney General Dupin, the fire that Pygmalion [sic.]
had reserved to himself after stealing it from the Gods ». Yes, it is something which cannot
be sold, be shared, or come under the joint estate of a marriage; it is not an asset, a right;
rather, it is the person himself.
      But this is not the object of the author’s right such as it is considered and guaranteed
by our legislation. « The law, to quote Dupin again, considers nothing but the realized idea
[idée réalisée]. It seizes the moment when the author becomes a merchant; then the prestige
of art vanishes to give way to civil law. The law materializes art in order to give it, not a soul,
for it had that already, but a body so that it becomes a thing that can be put on the market ».
The realized idea - here we have the object of the author’s right.
      Let us go even further. In my view it is not sufficient that an idea should be materialized
in a manuscript for it to become separate from the author’s person as such. As long as this
manuscript is not published by decision of the author, the thought which it contains and
expresses is just as if it didn’t exist, as if it were being retained by the mind which conceived
it in the first place. To use the forceful and appropriate phrase of M. Renouard, Droits d’auteur,
vol. 2, n°204, this thought constitutes no more “the author’s conversation with himself, the
sanctuary, as it were, of his conscience” (In the same vein: Troplong, Contrat de marriage,
vol. 1, p 435-436; Marcadé, vol.6, on Art. 1403-5°; Demolombe, Distinction des biens, vol.1,
n°439; Rodière and Pont, vol. 1, n°445; Pouillet, Propriété littéraire, p 173; Couhin, La propriété
industrielle, artistique et littéraire, vol.2, n°371; Lyon-Caen, Sirey, 1880. 1.25; Pandectes françaises,
v° Propriété littéraire, n°s 165ff.; Gastambide, Propriété des auteurs, p 182; Delalande, Revue
pratique de droit français, vol.46 (1879), p 240 ; Ruben de Couder, v° Propriété littéraire, n°32;
Pataille, Annales de la propriété artistique et littéraire, 1870, p.107, and 1880, p. 231).
      Anyway, here is a work published by an author. By virtue of this very act of
publication, the right which it gives rise to becomes the object of the literary property,
which is therefore simply the right to derive from the materialized work, now that it has
become a book, an opera, a painting, a statue, that is a trade value, all the profits that
its exploitation might entail. This right then acquires a financial value. It enters into the
patrimony of the author, becomes directly a part of it. And, consequently, it becomes
susceptible of all the modes of transmission recognized by civil law. It is transferable,
totally or partly. It can be transferred to heirs. It is, no matter what else may have been
said about this, susceptible of expropriation for the sake of public utility, as M. Pouillet
himself recognizes (Propriété Littéraire, n°204). Like all the other goods of a debtor, it
can be seized by his creditors, for whom it constitutes a security just like the rest of his
patrimony, except, though, the author’s right to make, after the seizure, all the changes
[to the work] which he deems to be useful, in good faith and not to cheat his creditors of
their rights (In this vein: Renouard, vol.2, n°204; Couhin, vol. 2, n°371; Gastambide, p. 149;
Ruben de Couder, eod. v°, n°30; Rendu, n°375; Pouillet, Propriété littéraire, n°173; Paris,
11 Jan. 1828, Jur. Gén., v° Propriété littéraire et artistique, n°320; Trib. Seine, 26 July
1837, Gazette des Tribunaux for 27 et 30 Dic. 1859, Annales de la propriété artistique et
littéraire, cited earlier, 1860, p 60 ; Dijon, 18 Feb. 1870, D. P. 71.2.221). It can be subject to
a pledge (Ruben de Couder, n°34 ; Trib. Seine, 2 May 1848 and 19 July 1843, cited by
Blanc, p 239; Paris, 22 and 24 Apr. 1863, Annales, op. cit., 1864, p. 384 and 385; 15 Jan.
1874, Annales, op. cit. 1876, p 76). It can be included in a partnership [en société].
      Given these conditions, why should we want it not to come under the realm of joint
estate? Why, when it is subject to common law in everything else, should it be exempt from
it in this regard only? A personal right [droit personnel], does it cease to be one for everybody,
for the heirs, creditors, and transferees of the author? Why should it remain a personal right
only as far as the one spouse is concerned? I look in vain for a reason to explain this
when I consider what

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marriage is, what joint estate is in our system of laws.
      Marriage, to use the definition given by Portalis in his exposé des motifs [of the Code Civil],
from that elevated viewpoint of his which knew how to combine philosophy and history
with the science of law – marriage is « the partnership of man and woman who unite
to perpetuate their species, to mutually help each other to carry the burden of life and to
share their common fate ». United so as to start a family, this basis of their partnership,
the spouses must also necessarily unite in order to support it and to bear its costs. And
it is in this way that a union of two people is naturally complemented by a union of their
goods. Our law, however, allows a couple to freely organize, by means of private
agreements between the spouses, their financial regime. But if they are married without
a prenuptial agreement, they are subject to statutory community of property. By the effect
of marriage and by tacit agreement, they share with one another all their present and
future goods, and this mutual sharing means that, should the community be dissolved,
each spouse has to relinquish half of the goods which form part of their joint patrimony
to the other. This community is of a dual nature: it is voluntary, since the law does not
impose it and given that in the absence of a written contract, it rests on the freely given
consent to the statutory regime of joint estate; it is universal, since it extends to everything,
nothing being excepted from it. « Why else, asks Renouard, would the system of joint
estate exist if not to tie to a single destiny the individual fortunes of husband and wife,
to identify their interests, and, finally, to spur them on to work for both of them together? ».
      Yes, here we have the distinctive feature of the system of community. The spouses
work jointly for themselves as a pair, and the price of their work belongs to them, whatever
the work may happen to be - from the humble work of the artisan to the investigations of
the inventor who snatches from the secret forces of nature a new secret which makes him
rich and the whole world after him; to the musings of the writer or composer, to the miracles
which flow from the artist’s brush or chisel and extend the domain of the intellect or that of art.
      Why, then, should the wife of an author, composer, painter or sculptor be treated
differently to all other wives? Why would she be placed in an inferior situation? She gives
as much as she receives, and, even if hers is a less striking role, it is of no less value for
that. It is precisely this which was argued in the exposé des motifs of the Law of 1866, when
it tried to specify the higher reasons which induced the legislator to grant to an author’s
widow the usufruct of the full author’s right: « The companion of the man of genius gives
him the support of an honest heart and an elevated spirit. By her graces, by her virtues,
she makes easier the work of him whose disappointments and triumphs she also shares
in. She is the first depository of his thought, she is the most devoted guardian of his
memory and works, for which she became in a sense his partner and assistant » (D.P. 64.
98, col. 3). And the same notion was expressed by Troplong (Contrat de marriage, n°433).
      If these are the grounds that inspired the legislator, if such is the esteem inspired in
him by the dignity of a woman devoted to her family, how is it possible to reconcile this with
his wishing to depriving her at the same time of the benefit of common law? For this to be
so, the special law would have to contain an explicit or formal exemption. Is this the case?
Does such an exemption exist?
      The Court of Paris would certainly like to say that it does: however, it has not dared
to assert it, and though it has done its utmost to demonstrate that the special laws did not
attribute to the author’s right the nature of a real common law property - which is quite true
but of no use whatsoever in helping us to find the solution we are looking for – it has not been
able to produce for our perusal this necessary text which would supposedly exclude the
author’s right from the community of property in marriage.
      For in fact, far from containing such a text, all the special laws which have dealt with
literary property demonstrate that the Code Civil’s regulations for joint estate apply to it too.
      I have but little to say about the Decrees of 19th January and 19th July - 6th August 1791.
You know the conditions under which they were promulgated and the goal that they had set
themselves. Under the old monarchy, the author’s right was no more than a privilege granted
by Royal Letters. This privilege went down in the general cataclysm [of the Revolution], and,
besides, the Law of 19th January, 1791, declared the liberty of the theatres, thereby leaving
authors defenceless before the general counterfeiting which was rife at the time. Laharpe,
Lemierre, Ducis and Chamfort address a petition to the National Assembly and obtained
the Decree of 19th July, 1791, under the terms of which a theatre director was not allowed
to put on a play by a living author, on pain of confiscation of the takings, without the consent
in writing of the author.
      As you can see, all this has to do with the regulation of the author’s right with respect
to the public, to third parties; the law does not deal at all with his relations with his spouse,
which it is not its remit to solve, and it would be pointless to remark that the Decree of 1791
could not depart from the Code Civil’s regulations for joint estate, since this Code came
into existence fourteen years later.
      I have as much to say about the Decree of 30-31st August, 1791. The satisfaction


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12
FIRST PART


given to authors by the previous July Decree had been insufficient. Their complaints
were taken up again by Beaumarchais. With what eloquence does he claims his right
of property to his work! « It is rather strange, he says in the petition he submitted to the
Assembly, that an express law was necessary to prove to the whole of France that the
property of a dramatic author belongs to him, that nobody has the right to seize it. Given
that this principle, derived from the most basic rights of man, has so unquestionably been
accepted to apply to all human properties acquired by work, gift, sale or heritance, one
might surely think it would be ridiculous to have to decree it by way of law. Only my property
as a dramatic author, more sacred than all the others, since it does not come to me from
anyone else and can in no way be disputed by intentional misrepresentation, fraud or
enticement, the work which comes out of my brain just as Minerva leapt out, fully armed,
from that of the king of the Gods, my property alone required a law to pronounce that it is
mine, to ensure my possession of it ». And with a constantly growing virulence, he
denounces « the robbery committed by the theatre directors, by these despots in league
with their slave actors,… so as to rob the authors, whose property, which is almost non-
existent during their lifetime anyway, is lost to their heirs five years after their death ». For
such was, in fact, the term fixed by the previous decree. So Beaumarchais obtained the
Decree of 30-31st August, 1791, regarding agreements made between the authors and
the theatre directors, which dealt only with this point, satisfied no-one, and was soon to
be replaced by the Law of 19th July, 1793, which since then has always remained in
force.
      What is the object of this Law? Lakanal will give us the answer to that, in the tone
that is so characteristic of that time.
      « Of all properties, the most incontestable, the one whose increase is in no way
injurious to Republican equality and which gives no offence to liberty, is undeniably the
property of works of genius; it is if anything surprising that it should have proved necessary
to recognize this property and to secure its free exercise by a positive law, and that a great
Revolution like ours should have been required to return us, in this as in so many other
matters, to the simplest elements of common justice. Genius fashions in silence a work
which pushes back the boundaries of human knowledge: instantly, literary pirates seize it,
nd the author must pass into immortality only through the horrors of poverty. Ah! What of
his children...? Citizens, the lineage of the great Corneille sputtered out in indigence! The
Committee has some legislative provisions to propose which will make up the Declaration
of the Rights of Genius. » (Jur. Gen. v° Propriété Littéraire, n° 76-1°).
      When one reads such declarations, one cannot but wonder at how the Court of Paris
can pretend that the Laws of 1791 and 1793 did not recognize, in « the work that is published
or performed, a good which is susceptible of property ». But I will go on and just state that
what the Law of 1793 is aiming at, by giving the author an exclusive right on his works, by
regulating the prosecution and seizure of counterfeited works, is to protect literary property
against piracy. This is what this Law deals with; it is not at all concerned with the right of the
author’s spouse.
      In fact, in its Art. 1 this Law does describe the right which it grants to the author as an
exclusive right, just as the criticized decision in our case emphasizes it too. But this does not
mean that it attributes to this word the meaning which the Court of Paris would like to give it,
that is of a personal right which is not transferable and is exclusively attached to the author’s
person from whom it cannot be separated. Such an interpretation is entirely contrary
to the meaning as well as the spirit of the Decree. Of course, when one uses the term
private right [droit privative], one is also referring at the same time to a personal and
exclusive right – personal in the sense that it belongs to an individual, and exclusive in
the sense that it is peculiar to the person in whom it is invested, with the exclusion of
any third parties who would like to seize it without his permission. And this is with this
purport that the Decree of 1793 enshrines the author’s right, opposing it to the right of
the public domain, to that of those people who would want to have the work performed
or printed against the will of the author, or without his agreement. But it does not go beyond
that, and, in particular, it does not say that this right is exclusively attached to the author’s
person. The proof of this is that it admits the transferability of this right, that it recognizes
that the latter can be passed down to heirs (Art. 2 and 7). And consider now the terms
actually used by these articles. Art. 1 states first of all: « the authors of writings of any
kind… shall throughout their entire life enjoy the exclusive right to sell, authorize for sale
and distribute their works in the territory of the Republic, and to transfer that property in full
or in part ». Then Art. 2 adds: « Their heirs or transferees shall enjoy the same right for
a period of ten years following the death of the author ». And Art. 7 returns to this same
idea. « The heirs of authors of works of literature or of engravings, or of any other production
of the mind or of genius within the domain of the Fine Arts, shall have exclusive property
in those works for a period of ten years ».
      Now, surely, when this right has been transferred to the author’s heirs or assignees,
one cannot claim that it still retains the character of a non-transferable property from which
one might try to deduce its irreducible personality. And yet Art. 2 and Art. 7 use those very
words – exclusive property, from which certain people would like to induce that they apply
to the author himself! Let us therefore conclude our observations on the Decree of 1793 by
saying what we have already said about the Decrees of 1791. Though it does regulate the
relations between the public and the author, it does not concern itself with the concurrent
rights of the author and his spouse, and hence it does not contain any exemption to the
regulations of common law

[2nd column:]

which the Code Civil was not to establish until eleven years later.
      It is the Decree of 5th February, 1810, which was the first to establish the
right of the author’s wife, and immediately we see here how the principles of
common law regarding matrimonial agreements between spouses are invoked.
Indeed, Art. 39 is couched in these terms: « The right of property is guaranteed
to the author and his widow during her lifetime, if the matrimonial agreements
of the latter entitle her to it, and to their children for a period of twenty years ».
      So here we have the effect of matrimonial agreements being explicitly
reserved; here, by a formal reference to the Code Civil, which at that point had
been in force for six years, we see the authority of common law being recognized,
not excluded, as would be necessary for the opposite system to prevail. On the
contrary, the Decree makes explicit reference to it.
      The argumentation is compelling and decisive. But the court of Paris sidesteps it in
the simplest possible way - by suppressing in the text the very words which it is
annoyed by: « Whereas, it argues, Art. 39 of the Decree of 5th February,1810, grants
in all cases to his children (the author’s) his rights in their entirety for twenty years after
his widow’s death, so this excludes them in principle from the system of community ».
In their entirety? Yes, with the reservation of those rights which the matrimonial
agreements have accorded to the wife and whose benefit the text itself reserves to
her. These are the terms of the Article, and the interpreter who is called upon to apply
it in practice should not truncate it to suit his fancy.
      Let us also observe further that, just as with the Decrees of 1791 and 1793, the
Decree of 1810 only takes into account the rights of the author, his widow and his
children, insofar as they compete with those of the public and not to the extent to which
they have to be exercised with regard to one another. This is what your Chamber of
Petitions was careful to make clear in its ruling of 16th August, 1880: « Whereas, it
says there, Art. 39 of the Decree of 5th Feb., 1810, which grants to the widow a lifetime
right to the works of her husband, did not at all set itself the task of regulating the
respective rights of the spouses, nor those of widows and other heirs with regard to one
another; whereas its purpose was solely to establish the rights of authors, their
widows, children and transferees with regard to the public… ».
      However, I do not deny that the laconism of the 1810 Decree has in the past given
rise to some profound complications concerning the application of common law to literary
property; and the question as to whether, in order to assess the right
which accrues to the widow under this decree, it is necessary to refer to the Code Civil, or
whether, so that the author’s wife should be able to benefit from the provisions of the
decree, an explicit stipulation is required in the prenuptial contract , has been much
debated amongst our jurists. « The most reliable opinion, Dalloz tells us, Jur. Gén. v°
Propriété Littéraire, n°223, was that a special stipulation is not necessary to secure
the widow’s right, and that these words: « if the matrimonial agreements entitle her to it »
refer to the provisions of common law, to the regime which the spouses have adopted
or are considered to have adopted if they had not drawn up a contract » (In the same
sense, see: Jur. Gén. v°. Contrat de marriage, n°628).
      And this is, indeed, what evidently emerges from the discussion and the exposé
des motifs of this Art. 39, such as they are reported by M. Parant (Lois de la Presse en
1834, Supplément, p. 458f.). This author, who was one of your soundest Attorney
Generals, had, in the first edition of his book, subscribed to the opinion which I am now
upholding before you. But he came up against certain objections which worried him, so
he decided to study them again by examining how the definitive wording of Art. 39 was
arrived at. Only a most learned jurist, with a wide range of case materials at his disposal,
would, so Parant confesses, be able to give me some clarifications on this point. So I in
my turn addressed myself to M. the Baron Locré, whose generosity I had already had
occasion to experience, and the former Secretary General of the Council of State
provided me with the following explanation: « I was in charge of reviewing all the drafts
of decrees adopted by the Council of State before presenting them to the Emperor. I was
supposed to examine them not just to check whether the draft, though it would have been
re-read again by the Council, accurately conveyed its resolution, but also to submit to
the Emperor, if so required, any observations which came to my mind in the course of
this new work. But normally I would first pass these observations on to the reporter,
because if he adopted the proposed rectification, it would immediately be made in
cooperation with him. Now, as far as the Decree of 5th Feb., 1810, is concerned, the
draft of Art. 39, which was decided upon by the Council itself during the session of 13th
Jan., 1810, did not include these words: « If the matrimonial agreements entitle her
to it ». Nobody had noticed the absence of this necessary restricting qualification, and
it only struck me when I was to review the draft for a final time. I was compelled to
tell M. Regnaud (de Saint-Jean d’Angely), the reporter of the draft: « You haven’t taken
into account the import of this article. Don’t you see that your vague formulation might
serve to hand over to a wife a share in a property to which it is possible that she has
no right whatsoever, as in the case that the marriage had been contracted with
exclusion of community, under the system of dowry, with separation of the spouses’
property, and, generally, in all those cases where the wife


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COURT OF CASSATION

cannot make any claims to properties acquired by her husband? Let us therefore limit the
scope of the article to the case where the wife’s matrimonial agreements do entitle her
to claim some right ». Palpably struck by how correct this observation was, M. Regnaud
(de Saint-Jean d’Angely) hastened to modify the article and to rectify it this sense the
wording that was finally adopted by the Council. Thus, adds M. Locré, the effect of Art. 39
is subordinated to any existing matrimonial agreements, whether the couple has opted for
the common law [statutory] system [of joint estate] or whether they have explicitly
stipulated everything [in a pre-nuptial contract] ».
      It seems to me that after this explanation no further discussion is necessary on this
point. I won’t say anything about a famous bill which was presented to the two Chambers in
1841 and which contained a formal invocation of the regulations of the Code Civil and of the
community system, for this bill was not adopted.
      However, I would like to emphasize that the Law of 8th April, 1854 (D.P. 54.4.68)
clearly manifested that its unique and precise purpose was to extend the enjoyment of
the right which the previous laws had granted to widows and children, and that the
legislator explicitly stated « that it did not make any new changes whatsoever to the
other legislative provisions which for such a long time now have been the basis of
all interpretations by our jurisprudence ».
      And so now I come to the Law of 14th July, 1866 (D.P.66.4.96), which, if there are
still any remaining doubts after everything I have just said, will dispel even the slightest
of these. For here we find, indeed, everything concentrated that will help us to shed full
light on the matter. The exposé des motifs, the report, the discussion, the text itself all
repeat at every possible opportunity that the author’s right is movable, that it falls within
the system of community, that it is subject to common right, and that the law in question
was merely enshrining well-established judicial precedents.
      Here is what the exposé des motifs says: « The very movable nature which has
been recognized as intrinsic to the author’s right caused not only the income from this
right to fall into the joint estate, but also the right itself ». And in support of this doctrine,
the exposé cites the opinion of M. Troplong (Moniteur, 24th Feb. 1866, p 205).
      The report is no less significant. It justifies the provision which creates, for the
widow’s benefit, the new right of possession established by the law and adds (Moniteur,
p. 665): « The worthy M. Paulmier has presented an amendment containing a triple
proposition: 1°…, 2°…, 3° attribution of the author’s right to the joint estate or the
communal estate reduced to acquests as stipulated by the spouses. Such has been
jurisprudential practice, and so it is too for this bill ».
      And during the discussion, the Reporter M. Perras, took up this very notion in
exactly the same terms:
      It is with this unanimous agreement that the law was adopted; its Art. 1 is worded
as follows: « The duration of the rights accorded by the previous laws to the heirs,
irregular successors, donees or legatees of authors, composers or artists is set at
fifty years, counting from the author’s death. During this period of fifty years, the
surviving spouse, « whatever the matrimonial settlement that existed between the
spouses and regardless of the rights which might result in favour of this spouse
from the settlement », is entitled to the simple enjoyment of those rights which were
not transferred by the deceased spouse by donation inter vivos or by testament… ».
      It was impossible to say it more clearly or more strongly that the new right granted
to the wife did not merge with the right she already had according to Art. 1401 and
1498 of the Code Civil; that the former right still continued to exist without interfering
with the new one; and that the author’s right remained part of the joint estate if the
prenuptial agreement or the law, in the absence of such an agreement, had established
a communal estate settlement between the spouses.
      And yet M. Pouillet refuses to give in and protests. For him, there is no need to
take into account the exposé des motifs; it just asserts what it should actually be
trying to prove: that the Law of 1866 was not meant to examine the question, that its
aim was simply to fix the duration of the right; it had no reason to probe deeper into
questions relating to the author’s right taken as such, into its nature or character.
      This strikes me as a very bizarre line of argument! The legislator asserts, and
that is enough. It is his will which he gives expression to. And if there happened to be
no discussion on the nature and character of the author’s right, then that is because
everyone concurred in their views on the matter and because this so clear and categorical
exposé des motifs really did convey the Chamber’s will.
      Similarly, in M. Pouillet’s view, we should not be mentioning the report at all,
as it just restricted itself to referring to the judicial precedents which it claims to invoke,
whereas the records of these precedents are very rare and do not have sufficient
authority to cut all discussion short.
      M. Pouillet obviously seems to be imagining that he is discussing a judicial decision.
Has he forgotten that it is the law itself, that the legislator is the master of his decisions,
of the provisions which he enacts, and that he gives to these judicial precedents, which
he deems to be good and decisive, all the authority he intends to ascribe to it?
      M. Pouillet claims that the discussion of the law actually refuted the exposé des
Motifs and the report. However, it is altogether the opposite which is true. Yes, some
objections were raised, some criticisms were expressed: various speakers pointed out
the regrettable consequences, the shocking anomalies which might sometimes result
from the proposed system,

[2nd column:]

and which, to use the expression of M. Pouillet himself: « seemed to imply the negation
of any attribution whatsoever of author’s right to the joint estate » . These debates
stirred up the Chamber, and the Article was even referred back to the Commission.
Yet it returned from it without any modifications, and it remains in its original text. There
is no subtlety which could distort it in any way and give to the words it uses any other
meaning than that which they carry: « Independently of the rights which might result
in favour of the spouse from the communal estate settlement », this could never be taken
to mean « to the exclusion of the communal estate settlement ». And for anyone who
is unbiased and willing to go into the meaning and import of these words, this is what
will clearly emerge from such an investigation, without any room for doubt. Art. 1 of the
Law of 1866 and Art. 1401-1498 of the Code Civil are to be applied concurrently. The
rights which a wife derives from these are not the same; they accumulate. The wife who
is a party to a communal estate settlement will receive, by virtue of her pre-nuptial
agreement or the Code Civil, half of the full property in the author’s right, and by virtue
of Art. 1 of the Law of 1866 the enjoyment of the other half for the duration of her life.
The wife who is not a party to a communal estate settlement, who is married under a
dowry settlement, under a system of separation of marital property, or without joint
estate, will receive, by virtue of Art. 1 of the Law of 1866 the simple possession of the
whole.
      Such is the system set up by the Law of 1866. It is as plain as daylight, and I am
Entitled to repeat with Messrs Aubry and Rau (4th, edit. vol. 5., p 284., note 11): « The
Law of 14th July, 1866, which, in its Article 1 formally reserves to the surviving spouse,
apart from the simple possession which it guarantees to her, also any rights which
might result in her favour from the communal estate settlement, does not leave any
room for misunderstandings » And it is difficult to see how the Court of Paris, in the
light of this very Art. 1, could possibly say « that the Law of 1866 has only taken the
communal estate settlement into account insofar as to reserve to the wife, in addition
(to the right that it grants to her), the proceeds from author’s rights that are realized
before the dissolution of this settlement and not these rights themselves ». Your decision
of 16th August, 1880, already refuted this rash claim: « Whereas, so it goes, the
provision of Art. 1 of the Law of 1866 is clear and precise, it obviously follows from this
that the movable nature which is recognized as inherent in the author’s right causes
not only the proceeds from this right to be included in the joint estate but also the
right itself ».
      Now, are we more likely to find in the Law of 9th March, 1891, which modified
the rights of the surviving spouse on the pre-deceased spouse’s inheritance
(D.P. 91.4.17), any indication that would allow us to assume that the legislator had
abandoned all the principles he had previously and so explicitly established, and
that he had wished to remove from the communal estate settlement the author’s
right, which the Decree of 1810 and the Law of 1866 had, on the contrary, explicitly
subordinated to it?
      The criticized decision would like it to be so, but its assertion destroys itself,
because of the “whereas” clauses it contains: « Whereas, it says, the Law of 9th March,
1891, did not either include in the statutory communal estate the property as such in
these (author’s) rights ».
      As if an explicit provision in the new law were necessary for this to be so, whereas,
in fact, according to the earlier legislation the author’s right did fall into the communal
estate settlement, and if the new law had wanted to break new ground, it would surely
have needed not a new provision which included the author’s right in the joint estate,
but, rather, a formal text which excluded it! And as if the silence kept in this respect
were not clear evidence that the previous state of affairs had not been modified!
      What I am saying is so true that the criticized decision has to admit that the
debate in Parliament goes directly against the solution which it proposes: « Whereas
the Law of 9th March, 1891, did not either include in the statutory communal estate
the property as such in these rights, even though the debate in Parliament did for a
long time revolve around the similarity between this Law’s general provisions and the
special Law of 14th July, 1866 ».
      Thus, as the criticized decision itself admits, the question was broached and
debated before the Chambers, and it is not because of negligence that the new Law
has allowed the previous system to remain in place. Indeed, it enshrined it most
deliberately and it did so in the most explicit and least equivocal fashion.
      During the session of 2nd Dec., 1890, M. Bozérian presented an amendment,
which was worded as follows: « Art. 2. The Law of 12th July, 1866, on the rights of
the heirs or legal successors of authors will continue to be applied ». Justifying his
proposal, he said that the point was to reconcile the new law with the Law of 1866,
which gave the surviving spouse some special rights when he/she happened to
receive an inheritance consisting of author’s rights in the literary or artistic field.
What is this right of possession which the Law of 1866 gives to a widow? A right
of usufruct. So with this new law, which gives the surviving spouse a specific right
of usufruct, there will now be two possible usufructs if the inheritance should happen
to include author’s rights. How are these two laws to be reconciled?
      And the Reporter, M. Lacombe, answering in the name of the Commission
(D.P. 91.4.23, col. 1) said: « that where the legislator is drafting a general law which
modifies the Code Civil, the Law of 1866 must still retain all its force; for it is a matter
of principle that general laws


Chapter 1 Page 10

14
FIRST PART

do not derogate anything from special laws; that there is no reason to bring about, with
a new text, a reconciliation between that law and the new law, since the two laws will
be applied simultaneously; that is to say, that, when we are dealing with the inheritance
of an author or artist, as far as the latter’s literary or artistic property is concerned, the
Law of 1866 will be specially applied, whereas, with regard to the rest of the inheritance,
it is the Code Civil which is to regulate the devolution of the inheritance ».
      After this investigation, is there anything left standing of the assertion made by the
Court of Paris?
      Incapable of destroying the texts which speak so loudly and so clearly, the Court,
with the defendant following in its wake, decides to launch forth into some general
reflections about the inconveniences that will arise from certain interests still being shared
by the divorced spouses, or perhaps by the author and the new husband of his former
wife. What complications will there emerge from this joint possession and from this
hostility for the administration of this right, which after all is so tricky to manage? How
can the author, who must retain the right to revise and improve [remanier, améliorer] his
work, « to embellish it with the fruits of his continued labour or increased talent », how
can he make use of this essential prerogative in the face of an unworthy woman, who,
against his will, has become his co-proprietor and who, « billeted in her rights, will
importune by her self-interested obsessions the artist’s conscience after her husband’s
death and torment him in the ideas which he has given to the public, just as she once
tormented him during their marriage ».
      That is very well said, and is perhaps even correct to a certain extent. However,
these are reflections which may be taken into account by the legislator when he is called
upon to lay down the law; but they must not stop the interpreter of the law, the judge
who has to apply the letter of the law such as it exists, and regardless of any inconveniences
that might result from them. It is not our task to put this law on trial. Besides, these
grievances should be addressed not so much to the legislation on literary property as
to that which established the institution of divorce, this open sore of our family life. These
reflections cannot allow us to discard [common] right, to forget or ignore the general
principles of our Code which must always be our guiding notion as long as the latter
have not been repealed by some formal provision. So let us apply the law once again,
and let us do so with all the less hesitation in this case, given that all we are actually
doing is simply to remind the defendant of his own stipulations in his prenuptial
agreement.
      Mr Lecocq knew the law when he married Mrs Cinquin: well informed by his advisers,
he understood it just as well as we do. He knew that he could freely settle his
matrimonial agreements, that the author’s right fell into the communal estate settlement,
but that he could restrict or exclude the application of this rule. And he did exercise the
right which the law granted to him. He stipulated, in Art. 1 of his prenuptial agreement, that
he was getting married « under the system of joint estate, such as it has been established
by the Code Civil, with the following modifications ». And he added, in Art. 3: « The future
husband brings and constitutes as his dowry: 1° his household furniture [meubles meublants],
his jewels, the works which make up his library, all this having a total value of 20,000 francs;
2° the works listed as follows bellow (in 19 sections) of which he composed the music; 3°
6,080 francs of government bonds from the French State. »
      Didn’t he therefore in this way explicitly mark out and specify what he intended to
exclude from the joint estate, that is the nineteen works he had composed before his
marriage and which he carefully listed? And by not saying anything about the works he
would compose during the marriage, didn’t he – implicitly, I admit, but with full knowledge
of the facts and with no room for ambiguity – thereby express his intention of allowing
them to fall into the joint estate? It is certainly appropriate to tell him: Patere legem quam
ipse tulisti [Lat. ‘Submit to the law which you yourself proposed’]. I conclude in favour
of reversing the decision of the Court of Appeal, which has failed to take into account
these facts, just as it has all the principles of the law.

DECISION (after deliberation in the Chamber of Judges.)

THE COURT; - On the sole ground [moyen] of the appeal [pourvoi]: Pursuant to Art. 1498
of the Code Civil; - Whereas the right to use exclusively the proceeds from a literary or
artistic work, which the law reserves, for a limited time, to the author of this work, constitutes
an asset that can be put on the market and is therefore subject, in the absence of any legal
provisions to the contrary, to the Code Civil’s general regulations, insofar as they are
compatible with the specific nature of the said right; - Whereas, according to the terms of
Art. 1498 of the Code Civil, the proceeds of the industry of a married couple, under a system
of communal estate reduced to acquests, form part of the assets of this joint estate; - Whereas
this provision, couched in general terms, does not make any distinction between the revenues
stemming from an industrial or commercial enterprise, and the financial revenues

[2nd column:]

which attach to the exploitation of works of the mind [oeuvres de l’esprit]; and given that
the specific legislation for literary property, far from going against this text, has on the
contrary recognized it as applicable to the subject with which it is concerned; - Indeed,
given that Art. 1 of the Law of 14th July, 1866, which bestows on the surviving spouse the
possession during fifty years of rights which the pre-deceased author did not have at his
disposal, was careful to specify that this bestowal takes place independently of the rights
which might result in favour of the spouse from the communal estate settlement; - Whereas
from the aforementioned principles it follows that upon the dissolution of the joint estate
system that had been reduced to acquests, the total estate to be divided must, in the
absence of any clause to the contrary in the prenuptial agreement, include the monopoly
of exploitation pertaining to the works published by one or the other of the spouses during
the conjugal union, without, though, it being possible for the pooling [mise en commun] of
this emolument to derogate from the right of the author, which is inherent in his very personality,
to subsequently make some modifications to his creation or even to suppress it, provided
that he is not at all acting with the aim of causing vexation to his former spouse, or to
the latter’s representatives; - Whereas it follows from the findings of the criticized decision,
that the man Lecocq and his wife were married under a settlement of communal estate
reduced to acquests; that according to the terms of their prenuptial agreement, which was
drawn up on 30th March, 1876, by Maître Schelcher, the future husband expressly reserved
to himself the property in a certain number of musical works, specified by name, of which he
was the author; - But that the said act did not contain any stipulation regarding works which
the respondent might compose in the future; - Whereas, consequently, the notary appointed
to proceed with the liquidation of the joint estate dissolved by the spouses’ divorce, was
obliged to include in the acquests all the rights of exploitation pertaining to new works which
Lecocq had published or caused to be performed during the marriage; - That this public official,
however, neglected to include these assets in the total estate to be divided, and that the Court
of Paris upheld this exclusion under the pretext that authors’ rights to the proceeds of their
works somehow constitute a special category of goods, to which the Code Civil’s provisions
regarding communal estate would not apply; - By which the criticized decision has breached
the text of the aforementioned law; On these grounds, reverse the decision, and remand the
case to the Court of Rouen.
      On 25th June, 1902. Civil Law Chamber –Messrs Ballot-Beaupré, 1st Pres. – Rau,
Reporter. – Baudouin, Attorney Gen., c. conf. - André Morillot and Boivin-Champeaux,
lawyers.
_______________




Translation by: Annabel Rideau

    

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