The seize of fake paintings in France

Artists' committees, most often made up of rights holders and specialists, play an essential role in regulating the art market in the face of counterfeiting, which is defined as the reproduction of a work produced without the consent of its author or successors in title. So much so that their opinions on the authenticity or otherwise of the works presented to them are generally authoritative. Faced with an infringing work, a committee may, in the event of failure of amicable agreements, choose to resort to various means such as carrying out a "seizure-infringement", initiating an action for infringement, or even requesting the confiscation or destruction of the infringing work. This is how in 2012 the Marc Chagall Committee was approached by the Czech owner of an oil on cardboard titled Naked Woman at the fan. Painting is bearing the artist's signature – and similar to the work in ink and gouache on brown wrapping paper from 1910 kept at the Center Pompidou-Musée national d'art moderne – and was presented to the committee to obtain a certificate of authenticity. An indelible mention "Reproduction" legible to the naked eye Believing that this painting was not authentic, the artist's heirs and the committee first obtained the legal possibility of proceeding with the actual seizure of the infringing work located within the committee's premises, then sued the owner for infringement and destruction the disputed oil. In 2017, after an expertise having found the lack of authenticity of the work, the tribunal de grande instance of Paris ordered its delivery to the heirs with a view to its destruction by a bailiff. Contesting this judgment, the owner appealed for the seizure cancellation and the work's return under penalty. Alternatively, in addition to compensation for loss of enjoyment, he requested the lifting of the seizure and the return of the canvas with the mention "REPRODUCTION" on the back. It is this last option that was retained by the Paris Court of Appeal. For the judges, even if the counterfeit was established, the destruction of the work presents "a disproportionate character". According to them, the return of the painting to its owner with the prior affixing by a bailiff of the mention "REPRODUCTION" on the back, legible to the naked eye and indelible, is "sufficient [e] to guarantee an eviction of this painting trade routes". The heirs and the Marc Chagall Committee then appealed to the Court of Cassation, considering in particular that, by not ordering the destruction of the work, the Court would have violated the provisions of the Intellectual Property Code (IPC), since the only mention "REPRODUCTION" would not allow the public to know if it is a lawful reproduction or not, carried out with or without the agreement of the author or his successors in title. Furthermore, they argued that the Court of Appeal had also violated the provisions of the European Convention on Human Rights by favoring the "unlawful right" of the owner of the infringing work over their "lawful rights" .of the author's heirs, disregarding their legitimate interests and the protection of the infringing original work. On November 24, 2021, their appeal was however dismissed by the senior magistrates. On the one hand, the illegitimacy of the right of ownership of the owner maintained by the plaintiffs constitutes a new inadmissible plea. On the other hand, the Court recalled that the modalities of reparation were assessed sovereignly by the trial judges, holding that "it is in the exercise of its sovereign power of appreciation of the methods of repair of the infringement retained that the court of appeal considered in application of the provisions of article L.331-1-4 of the CPI, that the affixing of the words "REPRODUCTION" on the back of the disputed work, visibly and indelibly to the naked eye, was sufficient to guarantee that this painting would be removed from commercial channels". Destruction It should be noted, however, that confiscation or destruction remain appropriate penalties for removing from commercial channels works deemed to be infringing. The Criminal Division of the Court of Cassation also recalled this on November 3, 2021, in a case relating to two infringing drawings attributed to Modigliani, specifying that "these penalties, which are mainly dissuasive, respond [e] nt to the general interest in the fight against counterfeiting and guaranteeing proportionately that the infringing objects will be definitively removed from any commercial circuit so as not to compromise intellectual property rights again". seen in Le Journal des arts, Eleonore Marcilhac Video: Documentary: The fake Van Goghs

The seize of fake paintings in France

Artists' committees, most often made up of rights holders and specialists, play an essential role in regulating the art market in the...