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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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14FIRST 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.
_______________
No Transcription available.
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
Back | Record | Images | Commentaries: [1]
Translation only | Transcription only | Show all | Bundled images as pdf
14
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.
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.
No Transcription available.