When the divorcing wife destroys the mural painted on the dining room wall by her husband

AT approaching Valentine’s Day, the following case reminds us that if, in a couple, love disappears one day, the ex-spouses cannot, nevertheless, cause mutual harm to each other: Mme X, in divorce proceedings, had no right to destroy a mural, which her husband had painted in their dining room, eleven years earlier, and which represented their family.

It was shortly after the divorce judgment that Pascal X discovered, by chance, the disappearance of his fresco. His wife, who, since the non-conciliation order, had sole enjoyment of the marital home, had it covered with layers of paint.

She explains to him, a posteriori, that she wanted to sell their home quickly, and that the real estate agent thought ” share “ on the presence of this decoration. She adds that she was embarrassed by the image which represented her, undressed (and for which she had however formerly posed).

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Mr. X considers that she has infringed his moral copyright, and is claiming 20,000 euros from him. As she refuses to give them to him, he takes her to court. He invokes in particular article L111-1 of the intellectual property code, according to which “the author of a work of the mind enjoys over this work, by the mere fact of its creation,… a right of ownership…”.

Faces replaced

Mme X replies when his fresco was not a “work of the mind” eligible for copyright protection because it did not meet the necessary criterion of“originality” : a work is « original »according to the case law of the Court of Cassation, if it “reflects the personality of its author” (89-11.204) or that it is marked with sound “footprint” (71-14.469).

However, Mr. X had only done ” to copy “ three Art Nouveau objects: two posters by Alfons Mucha (1860-1939), for Moët & Chandon champagne and Lefèvre-Utile biscuits, on the sides; a wall painting by Jan Preisler (1872-1918), representing a couple, in the center. He had just replaced the faces of the characters with those of his family (his wife, himself and their daughters). For meme X, this simple substitution cannot constitute a “creative contribution”, likely to do “bring out the personality” of its author.

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The Bordeaux Court of Appeal, which rules on November 7, 2022, is less severe: it judges that this representation of the X family “can only be considered original”. It is indeed, according to her, a “personalized representation”Who “belongs only to its author”, which has moreover “modified decorative elements and even the orientation of the painting on the right in order to obtain a coherent whole”.

The court therefore condemns Mr.me X to “repair the harm” suffered by her husband. But it only allocates to this one… 500 euros.

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Why such a discrepancy with the amount claimed, when Mr. X justifies having sold a fresco of the same format for 5,000 euros, in 2017? In this type of case (10/15258 or 15/14561, for example), the judges take into account the ” fame “ of the artist. Pascal X, amateur painter, not having any, they nevertheless sanctioned the destruction of the work, which “symbolically represented his family”.

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