Work of the mind, are you there? In terms of exhibition design, the question is not without interest because there is nothing to prevent it from being protected by copyright, on the sole condition that it is original, that it bears the imprint of the personality of its author or his intellectual contribution. However, decisions in this sense are rare and often old: in 1988, the Paris Court of Appeal refused protection for the exhibition of the Schlumpf brothers’ automobile collection, but it was able to grant it in 1997 to Henri Langlois, for the exhibition of his collection at the Musée du Cinéma. Also, a recent decision of the Lyon Court of Appeal (July 2, 2024) deserves the greatest attention in that it affirms that the designer of an exhibition can enjoy copyright on it, regardless of his status as an employee or self-employed person – and which should not be confused with the exhibition rights of artists.
At the heart of this case was an employee of the National Center for Armenian Memory (CNMA), located in Décines-Charpieu in the Lyon metropolitan area, who considered himself the creator of four original exhibitions on the theme of genocide and crimes against humanity. After being dismissed by the Center, this employee realized that his exhibitions continued to be exploited. He then sued the Center for counterfeiting. However, the Lyon judicial court refused to recognize the originality of the four exhibitions, before being censured by the appeal judges. On the contrary, for the latter, “the panels of each of the exhibitions include original texts, a selection of documents from historical research, photographs selected and arranged specifically, and that they have been laid out according to arbitrary and creative choices and according to an overall coherence, revealing the intellectual contribution and the personality of the author”. Accordingly, the four disputed exhibitions, by virtue of their patently original character, were works subject to copyright legislation.
However, was the employee really the author of these exhibitions? It is true that the status of author belongs, unless proven otherwise, to the person or persons under whose name the work is disclosed. Also, the Centre had considered that there would have been an implicit transfer of copyright due to the employment contract concluded with its former employee. However, it is well accepted that the existence of an employment contract or a service contract does not imply an automatic transfer of copyright. In this case, and in the absence of an explicit transfer under copyright law, the Court of Appeal ruled that the employee was indeed the sole holder of the rights to these exhibitions, some of which were carried out before becoming an employee and others as an employee. Faced with these acts of infringement, the centre was ordered to compensate the employee to the tune of 15,000 euros for the damages suffered.
This solution, which targets exhibition designers, whether employees or independent, should be put into perspective with those designed by civil servants. It should be kept in mind that Article L. 131-3-1 of the Intellectual Property Code provides that “ the right to exploit a work created by a State agent in the exercise of his functions or according to instructions received is, upon creation, automatically assigned to the State”. It remains nonetheless that in the case of commercial exploitation – as is the case with an exhibition – there is no automatic transfer of rights but only a right of preference for the public person. In other words, a copyright on the exhibition may be recognized for civil servants, in accordance with Article L. 111-1, paragraph 3, of the same Code.
However, this patrimonial right of copyright would seem to be limited here with regard to moral rights. Thus, following the eviction of Anne Baldassari from the Picasso Museum in 2014, she had warned that in the event of the museum taking over her “hanging concept”an infringement of his moral rights would take place. However, such a right would be symbolic since Article L. 121-7-1 of the said Code provides that the public agent cannot “ oppose the modification of the work decided in the interest of the service by the authority invested with hierarchical power, when this modification does not harm his honor or reputation” or cannot “exercise his right of repentance and withdrawal, unless agreed by the authority invested with hierarchical power”.
In short, the Lyon ruling refines a protective copyright for the designer, commissioner or curator of an exhibition since it follows that he can be doubly remunerated for his missions. material » (exhibition design) and “intellectual” (exploitation of the exhibition), whether he acts independently or as an employee. We can then imagine the interest for the latter and for public or private institutions to properly supervise the promotion of exhibitions upstream and downstream through a contract.
