# Primary Sources on Copyright - Record Viewer
Court of Cassation on sculptures, Paris (1814)

Source: Bibliothèque universitaire de Poitiers (SCD) : Recueil général des lois et des arrêts (Recueil Sirey), 1er série 1791-1830, 4e volume - 1812-1814

Citation:
Court of Cassation on sculptures, Paris (1814), 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

2 translated pages

Chapter 1 Page 1



630      (13 Nov. 1814)                  JURISPRUDENCE OF THE COURT OF CASSATION                  (17 Nov. 1814)
______________________________


[3rd column:]

COUNTERFEIT – SCULPTURE – DEPOSIT
BY LAW.


The counterfeiting of a work of sculpture is
      an offence like the illegal copying of a text or
      an engraving.
(Code pénal, 425.) (3)
The author of a work of sculpture is not
      subject to the requirement to deposit two copies

________

(3) This question arises from the silence or obscurity of the law with
regard to works of sculpture. Neither the law of 19 July 1793, nor the
Code pénal explicitly mention such productions: the
law of 1793, in its art. 7, merely speaks of property in productions
of the mind or of genius within the domain of the fine arts
, and the
Code pénal, in its art. 427, which punishes counterfeiting,
limits itself to including in the things which are to be confiscated
according to the penalty decreed, the moulds or dies of the
counterfeited objects
. – All the same, these statements do not allow
one to doubt that the legislator also intended to protect, against
counterfeiting, works of sculpture, which, with as much right as the works
of literature, painting, engraving, and music – which are named
specifically – ought to figure amongst the productions of the mind
and of genius.
      In this respect, the old regulations had taken care of what was
necessary for placing the works of sculpture under protection from
plagiarism and counterfeiting. For example, one could cite a
sentence de police of 11 July 1702, which prohibits
founders, on pain of a fine of 500 livres, from counter-casting
[contremouler] or giving to other people the works which they
have been given to found by sculptors, and which also prohibits
sculptors from sharing with anyone else the models which they
have made for the founders or which the founders have
communicated to them; – The new


Chapter 1 Page 2



(17 Nov. 1814)                  JURISPRUDENCE OF THE COURT OF CASSATION                  (17 Nov. 1814)      631
______________________________

of his works at the Royal Library.
(L[aw] of 19th July 1793, art. 6.)

                  (Robin v. Romagnesi)
      In 1814, the Paris-based sculptor and statuary,
M. Romagnesi, made a bust of King Louis XVIII
after life: from the original of this bust he made a
mould from which he cast several copies, some
in bronze, others in plaster. To safeguard his
property in the work [ouvrage] and in conformity
with article 6 of the law of 19th July 1793 he
presented the royal library with two copies of his
casts; but their deposit was refused because
there was no precedent of article 6 of the law
of 19th July 1793 having been executed in relation
to objects of sculpture. – Following this refusal,
M. Romagnesi addressed himself to the justice of
the peace in his district & deposited the copies
he had intended for the Royal Library in the office
of his clerk. – The justice of the peace
gave him formal acknowledgement of the deposit.
      Having done this, M. Romagnesi sold casts
to some other sculptors in bronze & to porcelain makers,
reserving for himself the right to cede to other artists
the right to cast them in other materials.
      He soon learned that Mlle Robin had
counter-cast his bust, and had produced from it [the mould]
several plaster casts which she put on sale. He lodged
a complaint about it with the justice; in the wake of this,
searches were carried out in Mlle Robin's workshop
from which emerged reliable proof that this woman, having
obtained one of the casts that M. Romagnesi had made
from his own bust, had used it to counter-cast hers.
      Following the investigation, Mlle Robin was sent
before the Criminal Court of the département of
the Seine, in which M. Romagnesi took action as a
plaintiff [partie civile]. – Mlle Robin

[2nd column:]

maintained that the action brought against her was
neither valid nor justified; it was not valid because
M. Romagnesi had not made the requisite deposit
at the Royal Library according to article 6 of the law
of 19 July 1793; not justified because the remit of the
law & that of the 1810 Code pénal only applied
to those who counterfeited works of literature, music
and painting and drawing in printed reproduction.
      The judgement of 31 August 1814 by which the
Court [resolved]: «Whereas all the laws on this matter
place sculpture in the class of the fine arts; but
sculptors have never been obliged to deposit their works at
the Royal Library; and there is no evidence that they
have ever done so; whereas according to the
terms of art. 425 & 427 of the Code pénal all counterfeits
are ranked in the class of offences; and it emerges from the
statements of both parties, & from the debates & facts of
the case, that Gabrielle Robin, after having procured
the plaster bust... by Romagnesi, had counter-moulded
his work; Gabrielle Robin is declared guilty of the
offence envisaged by art. 425 of the Code pénal; sentenced to
a fine of 200 francs, payable in a lump sum; ordered
the confiscation of all the busts counter-cast either in
part or in whole; - Upheld Romagnesi's case; finding in
his favour, sentences Gabrielle Robin to 100 francs in
damages and interest against the said Romagnesi; sentences her,
moreover, to pay the legal expenses.      »
      Appeal by Mlle Robin before the Court of
Paris; and decreed on 30 September: «Whereas if
art. 425 of the Code pénal does not explicitly
contain the word sculpture, it is implicit, as a fruit
of genius, in the special meaning of the words: or
of all other production
; and it is clear that the intention
of the legislator had been to include the counterfeiting of works

[3rd column:]

of sculpture in the offences specified by art. 426, since,
by art. 427, he ordered the confiscation of moulds
which primarily relate to objects of sculpture; – Thus
adopting the intention of the first judges the appeal
is dismissed, etc.      »
      Judged on appeal [cassation] against Mlle Robin.

                              RULING.

      THE COURT; – Whereas in declaring
the counter-casting of works of sculpture to fall
under the general remit of articles 425 and 427 of
the Code pénal, and that it was susceptible of
application of the penalties specified by
art. 427 of this law, the decree of the Royal Court
of Paris has not breached any law; whereas, with
regard to the second count, the law of 19 July,
1793, only obliged the authors of printed and
engraved works to deposit copies of these works
at the Royal Library, and sculptors have never
been subject to this requirement; and whereas,
consequently, one could not make an exception
of that law in order to advance an argument of
no-case-to-answer in opposition to M. Romagnesi's
demands; – Case rejected etc.
      17th Nov. 1814. – Criminal Division. – Reported by: M.
Audier-Massillon . – Concl., M. Merlin, Attorney-General.

______________

regulations granted in March 1730 to the Guild of Painters and Sculptors of the Académie de
Saint-Luc
of the city, suburbs and precincts of Paris, in which art. 69 states that: «All masters of the guild are
forbidden to copy or cause to have copied, cast or counter-cast the works of one
another, in order to sell them and use them for their projects, without having the written consent of the first author of
the said works.» – One declaration of the Guild of Master Founders on 21 April 1766, approved by sentence
de police
on 16 July of that year and by a Ruling of the Parlement on the 30th of the same
month and the same year, containing similar provisions; – Finally, a Royal declaration of 15 March 1777, for
protecting the artists of the Academy against casting and copying. (See the text of these documents in M.
Gastambide's Traité des contrefaçons, vi, p.356f.)
      The sentence in the Romagnesi case, which we are citing here, is the first which, in the new
system created by the modern legislation, has applied these principles, and it has served as the point of departure for a
number of similar decisions which we will mention further below.
      We should add that in the course of the legal proceedings which he instituted against his counterfeiters,
M. Romagnesi addressed himself to the Council of State, in order to obtain an opinion providing an
interpretation of the law in this matter, and that as a result a Royal ordinance of 10 Sept. 1814, which is not included
in the Bulletin des Lois, but which can be found in the archives of the Council of State, Committee
for the Interior, was issued in these terms:
      «We, etc.; by which our Council of State is understood;
      «Art. 1. Counterfeits in the realm of sculpture, which consist of moulds, counter-casts and engravings, are
forbidden. The provisions of the laws and regulations on counterfeiting in general are declared to also apply in all
respects to the former.
      «Art. 2. Counterfeits consisting of engravings of medals and gemstones are covered by the same prohibition.
      «Art. 3. Whilst the authors are still alive and even after their death, no one may, in the space of time fixed by the
law, take possession of [s'emparer de] their works, unless that person has acquired the right to them
from the authors or their heirs, or from those to whom the former may have ceded their property right.
      «Art. 4. Identical copies of works of sculpture, regardless of whether these copies are made on a larger or a
smaller scale in relation to the prototype, are forbidden unless they have been authorised by the property-holders
[propriétaires].»
      The principle having been settled and recognized thus, some difficulties presented themselves with regard to
establishing what one was supposed to understand by sculpture, and what types of sculptures were
protected by the laws that punished counterfeiting. If one consults a specialist work, the Encyclopédie des
sciences et des arts
, the following definition of a sculptor is given there: «A sculptor is an artist who, by
means of the chisel, shapes statues, carves wood, stone, marble and other materials suitable for making
representations and imitations of various objects of nature. Sculpture is the art which, by means of design and solid
matter, imitates with the chisel, the tangible objects of nature.» – «Thus», M. Gastambide adds, when citing this
definition; «in its most general sense, sculpting means to design with the burin or the great chisel
[ébauchoir], en creux or in relievo, on any material whatsoever. A
statue is a sculpture; a bas-relief, medals are all sculptures. Also
classed as sculptures and protected as such by the laws on the property of authors, are all industrial
products
which display designs in relievo or en creux on solid materials. Amongst such
products we shall cite bronze figures, iron casts, engravings on metals, tin-plates, goldsmith's work, porcelains,
ceramics, crystals and glass-work, stone and paste cards, marble grinding work, plaster figures, sculptures in wood,
mother-of-pearl, ivory, etc.»
      But is it appropriate to distinguish between a sculpture belonging to the fine arts proper, and the
sculptures which are meant for commerce? This distinction is not acceptable, says once again M. Gastambide: «All
paintings, all drawings, regardless of whether they are good or bad, of whether they are the work of an artist or not,
are the exclusive property of their author, on the sole condition that they should have been created by
the person who claims them as his property. Production within the domain of the fine arts (in the law
of 19 July 1793) means simply production analogous to the arts of painting and drawing, but does not
in any way imply a production which, on account of its merit, is considered worthy of being classed
amongst the objects of art.»
      A number of decisions have been pronounced which, more or less directly, confirm these principles or delimit
the scope of their application. See the rulings of the Court of Paris of 22 June 1828 and 23 Jan. 1829, 3 Dec. 1831; 9
February 1832; 6 March 1834; 24 May 1837; 14 June 1838.
      On this subject, see also the works of Messrs. Etienne Blanc, Traité de la contrefaçon, and
Renouard, Traité des droits d'auteur, ii, p.79, as well as our Dict. du cont. comm., vº
Counterfeiting, nº 48. – See, finally, on the above case the conclusions of Merlin,
Rép., vº Counterfeiting, § 16.


Translation by: Katie Scott

    

Our Partners


Copyright statement

You may copy and distribute the translations and commentaries in this resource, or parts of such translations and commentaries, in any medium, for non-commercial purposes as long as the authorship of the commentaries and translations is acknowledged, and you indicate the source as Bently & Kretschmer (eds), Primary Sources on Copyright (1450-1900) (www.copyrighthistory.org).

You may not publish these documents for any commercial purposes, including charging a fee for providing access to these documents via a network. This licence does not affect your statutory rights of fair dealing.

Although the original documents in this database are in the public domain, we are unable to grant you the right to reproduce or duplicate some of these documents in so far as the images or scans are protected by copyright or we have only been able to reproduce them here by giving contractual undertakings. For the status of any particular images, please consult the information relating to copyright in the bibliographic records.


Primary Sources on Copyright (1450-1900), Faculty of Law, University of Cambridge, 10 West Road, Cambridge CB3 9DZ, UK