Can we now do what we want with paintings by Henri Matisse, portraits by Frida Kahlo or writings by Colette? Not so simple. However, since January 1, their works are now in the public domain. In France, as in other countries of the European Union, copyright protects any work up to 70 years after the death of the author. This duration varies depending on the regions of the world concerned. “After the expiration of this period, anyone can exploit the work in question free of charge”reminds franceinfo Bérénice Ferrand, associate lawyer at the Squair firm, practicing in copyright law.
A work can then be freely used, reproduced or adapted without requesting the consent of the rights holders or paying them remuneration. Reproduction consists, for example, of a publisher “to make different copies of a work, or for a vinyl manufacturer, to copy the original work to design several vinyls”, she illustrates. It is also now possible to “communicate to the public, disseminate them and exploit them commercially”.
But certain rights do not fall into the public domain, this is particularly the case for moral rights. “Ils cannot be the subject of marketing, are not prescribed in time, are inalienable and perpetual”, advance Bérénice Ferrand. Let us cite in particular the right of paternity, which requires mentioning the name of the author when using his work. We must also ensure that the integrity of the work is respected: “You cannot fragment it, modify it, without the authorization of the author or his beneficiaries”, she specifies.
Putting a reproduction of a painting by Henri Matisse online, whether for commercial use or not, was illegal until December 31. But since then, it has been possible to reuse these works to reproduce them and communicate them to the public, potentially even earning an income from them, within the limits of respect for moral rights. “That is to say, we will have to credit Henri Matisse and his heirs, and we will have to respect the integrity of the work, adds the lawyer. So you’re not going to be able to do anything with it.”
“You cannot undermine Henri Matisse’s philosophy of life.”
Bérénice Ferrand, lawyer practicing in copyright lawat franceinfo
Can we then print a reproduction of a painting by Henri Matisse on a t-shirt without risking legal action? “You can do it, unless the rights holders consider that this commodification of the work undermines respect for the integrity of the work and that perhaps, the fact of flocking a t-shirt with a painting of the painter could harm his philosophy of life and his personal convictions”, analyzes Bérénice Ferrand.
This aspect is perhaps the most contentious, so it is justice which decides. Frida Kahlo is in this respect quite emblematic on the question of rights, as her legacy has been the subject of legal battles. The lawyer recalls the example of a trial in 2018 on the partnership between the Frida Kahlo Corporation, a company which claims all the rights linked to the name and identity of the Mexican artist, and the Mattel company, which creates the Barbie dolls. The rights holders banned the production of a doll inspired by Frida Kahlo.
And the fact that his works are now in the public domain in France does not really change the situation. There could even be other disputes: “The heirs of Frida Kahlo exploited two aspects. The copyrights for the 50 or 70 years, depending on the territories concerned, after the death of the artist, and once these rights expired, they registered the trademark Frida Kahlo, observes Béfénice Ferrand. And you should know that a brand, subject to being renewed every 10 years, is in reality perpetual. The notion of public domain therefore becomes more vague, or even disappears regarding the brand.”
The Frida Kahlo Corporation oversees partnerships around the world that could be established with companies that create derivative products. From the moment these rights have expired in Europe, in principle, it is no longer necessary to request authorization from this company. “The problem is that you are still required by moral right to cite Frida Kahlo’s name when you reproduce and communicate her work to the public.”
“And when you mention Frida Kahlo’s name, you’re stuck with trademark law, since her name has become a protected trademark that will remain so as long as it’s renewed.”
Bérénice Ferrand, lawyer practicing in copyright lawat franceinfo
“You are obliged to call the Frida Kahlo Corporation to obtain a license and therefore authorization to reproduce the mark, continues the lawyer. They found a way to go beyond the public domain to force all potential users of Frida Kahlo’s works to continue to request authorization from them, in return for payment of royalties.”
The case of Frida Kahlo being clearer, let’s return to Henri Matisse for the rest of the exercise. Given that his works are now in the public domain, is it possible to use AI to create images based on his world? Theoretically, yes. But a simple test on ChatGPT and its image creation tool, DALL-E, falls short. When he was asked to generate an image inspired by a painting by the painter, he refused, citing a legal risk, although he recognized that the artist had indeed entered the public domain.
However, the tool can generate visuals inspired by Van Gogh or Claude Monet, for example, which are also in the public domain. ChatGPT justifies itself by arguing that “the works of Van Gogh, such as Starry Nightare very often used as references in educational and creative works. Image generation tools tend to accept these inspirations as long as they are presented as ‘inspired by’ and not a direct copy.” For the artificial intelligence tool, “the difference has less to do with legal status than with an interpretation of the risks and sensitivities associated with artists”, Henri Matisse being considered according to ChatGPT as having “a unique style” who is “more closely associated with representational rights”.
If a compulsive ChatGPT user wanted to fall back on another artist to create a business around the exploitation of works that have fallen into the public domain, can he do so? “If we consider that there is no violation of moral rights and that there are no more exploitation rights, this cannot be challenged on the ground of copyright.” If there is no registered trademark, it cannot be attacked on this ground either, according to her.
But it is possible to invoke an economic notion which is not part of the field of intellectual property: unfair competition, and particularly parasitism. “This consists of taking undue advantage of the technical, human, financial and creative efforts of a person, without spending a penny, that is to say for free. It is a notion which will certainly be very manipulated in the years to come. makes artificial intelligence”, she concludes.
