Court of Cassation on artistic property (1842)

Source: Bibliothèque universitaire de Poitiers (SCD) : Dalloz, Jurisprudence générale. Recueil Périodique et critique de jurisprudence, de legislation et de doctrine, 1842.1.297

Court of Cassation on artistic property (1842), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer,

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Chapter 1 Page 8

304                                          FIRST PART


[2nd column:]

DECISION (after deliberation in the council chamber)

      THE COURT; - Regarding the 1st argument: - Whereas, by law, according to
the provisions of the Code Civil, a sale that is executed without any contractual reservations
conveys to the purchaser the full and absolute property in the sold item, together with all its
accessories, with all the rights and advantages which pertain to, or depend, on that item;
      And the sale of a painting, and the consequences which this sale is meant to give rise
to, should not be exempt from the application of these principles, unless a special and
exceptional law had happened to formally decree otherwise, since, by its very nature, a
painting and the advantages which may pertain to its possession are susceptible of the
most complete appropriation;
      Whereas the right of reproducing a painting by engraving must be counted amongst the
rights and entitlements which are conveyed to the purchaser in a sale that is carried out
without any contractual reservations;
      Whereas the law of 19 July 1793, which is invoked by the appellants, limits itself,
as far as painters are concerned, to guaranteeing to those who cause paintings and
drawings to be engraved, to their heirs and assignees, the property in their works and
the right to reproduce them, placing this right of reproduction under the protection of
a temporarily exclusive privilege; but this same law, applicable only to cases where a
painter, still being the owner of his painting, undertakes to reproduce it by means of
engraving, did not intend in any way to create, with regard to this right of reproduction,
a separate property for the painter's benefit which would be independent of the property
in the painting itself and which would always be retained by him even if he transfers,
without any relevant contractual restriction, the painting to which the exercise of this
right pertains;
      Regarding the 2nd and 3rd arguments: - Whereas these two arguments merge with
the preceding one and are subject to the same solution, because both of them raise
the same question as to whether M. Gros, after having sold without any contractual
reservation his painting in 1809, and the additions to it in 1833, could subsequently
convey in exchange for money [transmettre utilement] to M. Vallot the right to
reproduce this painting and the additions to it by engraving; and so, in this respect,
the contested decision is sufficiently well-founded; - Reject [the appeal]

      On 27 May 1842 – Joint Chambers – M. Portalis, 1st Pres. – M. Mesnard, Reporter,
M. Dupin, Attorney General, c.conf. – Messrs Nachet and Scribe, lawyers.


Translation by: Freya Baetens (p.8)


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