2018/06 > Can the image of a building belonging to the French state be freely used?

This question has just been decided by the Conseil d’Etat in a decision of April 13, 2018, related to photographs of Chambord Castle used by Kronenbourg breweries in the context of an advertising campaign for one of their beers in the 2010’s.

Could the castle, belonging to the public domain of the French state, be reproduced without financial compensation or authorization from the public institution in charge of the Chambord estate?

It has previously been ruled that the commercial exploitation of a photograph of a private building is allowed, without prior authorization or any financial compensation, unless the photo causes abnormal disturbance to the building’s owner or if the owner has copyright on that building.

The Conseil d’Etat has adopted the same position and has rejected an appeal which the public authority of the Chambord estate had filed against the decision of the administrative Court of Appeal of Nantes on December 16, 2015.

Indeed, the Conseil d’Etat ruled that “the occupancy or the use of the public domain is not submitted to any authorization, and cannot, thereafter, be subject to payment of royalties.” So, it rejected the argument that such a commercial operation could in this case be characterized as a private use of the public domain.

It also underlined that, in the absence of a specific legal provision, the administrative authority could not submit the commercial use of a picture of a building belonging to the public domain to a prior authorization system without restraining the freedom of entrepreneurship.

It should however be kept in mind that this decision was decided on facts pertaining prior to law n° 2016-925 of July 7, 2016 relative to freedom of creation, architecture and heritage.

The latter law has set up a specific system for image rights of goods categorized as “national domain”. A first list of six monuments and estates, with their perimeter, eligible in this category of national domain, because of their special link with national history, was submitted by the ministry of Culture and Communication and validated by the Historical Monuments National Commission. They are, namely, the Chambord estate, the castle of Angers, the Palais du Rhin in Strasburg, the estate of Pau, the Louvre and Tuileries estates in Paris (1st), the Palais de l’Elysée in Paris (8th). This list is subject to Decree n° 2017-720 of May 2nd, 2017 fixing the list and the perimeter of those national domains.

Furthermore, in application of article L. 621-42 of the Heritage Code :

“the use for commercial purpose on any support, of a building’s image which is part of the national domains, is submitted to a prior authorization from the administrator of the part of the national domain concerned. This authorization can be achieved by means of a unilateral act or a contract, with or without financial conditions.

The royalty takes into account any benefit of any nature obtained by the owner of the authorization.

The authorization mentioned in the first paragraph is not required when the image is used in the context of the performance of public service tasks or for cultural, artistic, pedagogic, education, research, information or news illustration purposes”.

Consequently, prior authorization and potential financial compensation are now the rule for such buildings.

Questioned through a Priority Constitutional Question, the Conseil Constitutionnel considered that those provisions will not lead to a disproportionate situation in view of the aims of the general interest attached to the protection of the image of the national domains, which present an exceptional link with national history, on the one hand, and to the economic value of the heritage constituted by national domains on the other hand. (Decision,  Cons. const., February 2nd 2018, n° 2017-687 QPC).

However, the law specifies that the prior authorization of the national domain administrator is not required when the image is used for a commercial purpose but also pursues a cultural, artistic, pedagogic, education, research, information, news illustrations purpose or is linked to a public service task.

A Decree in Conseil d’Etat has to define the implementing provisions of this text and, notably, should provide details on the concept of “commercial purpose”. This has not yet been published.