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"The decision rendered by the French Court on 4 May 2012: a new development in the case relating to the reproduction of The Wave by Camille Claudel", article published in the IBA newsletter dated September 2012, by Valérie LEVY

Article published in the International Bar Association Legal Practice Division Newsletter "Art, Cultural Institutions and Heritage Law", Vol 10 n°1, September 2012, by Valérie LEVY

The decision rendered by the French Supreme Court on 4 May 20121 constitutes a new development in the judicial saga opposing Camille Claudel’s heirs, this time about a posthumous bronze cast made from the original sculpture called The Wave.


This sculpture which is, according to the artist, part of the series ‘sketches from nature’, represents a breaking wave about to sweep over three bathers bent on their knees.
This piece of art is notable because of the delicate association of the green onyx-marble of the wave and the bronze of the bathers, see www.musee-rodin.fr/fr/collections/ sculptures/la-vague-ou-les-baigneuses.

In a settlement entered into on 6 July 1995, Camille Claudel’s heirs organised the exploitation of the patrimonial rights and the moral rights of the artist on The Wave. As a result, Reine-Marie Paris, the granddaughter of Camille Claudel’s brother (Paul Claudel, the famous writer), became the holder of the former, the others of the latter. In her capacity as holder of the reproduction rights of The Wave, Reine-Marie Paris authorised eight limited edition bronze casts – not made from the artist’s master plaster or waxes but from the original sculpture (surmoulages) and referred to these copies as ‘original editions’.

Considering that such reproductions were violating the moral rights of the artist, the other Claudel heirs sued Reine-Marie Paris. They obtained a preliminary injunction for counterfeiting and seized edition 3/8, which was exhibited in an art gallery in Paris, in order to prevent its sale. They also filed a claim before the French civil courts in order to obtain the confiscation to their benefit of such edition, as well as compensation for the damage suffered in their capacity as holders of the moral rights of Camille Claudel.

The French Supreme Court decision

As the Court of Appeal dismissed their claim in a decision dated 27 October 2010, an appeal before the French Supreme Court was lodged, mainly on two grounds relating to moral rights.
The first question submitted to the Supreme Court was whether a so-called ‘original edition’ of The Wave could be cast entirely in bronze whereas the original work was a mix of onyx, marble and bronze.

According to the Court of Appeal, the translation of the original work into a new material did not constitute a violation of its integrity since there was no evidence that, in her lifetime, Camille Claudel would have been opposed to an edition of her sculpture made entirely in bronze. To the contrary, it appeared that prior to the completion of the work, the artist had conceived a plaster mould. For the Court, this fact proved that the artist had considered the production of The Wave in bronze even though the plaster mould had never been used and was later destroyed.
In addition, the Court of Appeal outlined that bronze constitutes a material commonly used for art reproductions.

In its decision dated 12 May 2012, the French Supreme Court approved the lower judges’ reasoning and considered that the artist’s will had not been violated.

This decision is questionable when one considers how important the choice of material is for a sculptor. It is all the more relevant for Camille Claudel that the mix of onyx, marble and bronze chosen for The Wave rather than just bronze was a way to distinguish her work from Rodin’s.

The second issue submitted to the Supreme Court related to the qualification of the litigious bronze cast made directly from the final version of the sculpture: could it be qualified as an ‘original edition’?

Surprisingly, the Court of Appeal answered positively and considered that a surmoulage could be described as an ‘original’ since it is a limited edition and the original characteristics of the sculpture are not altered.

In line with existing case law, the Supreme Court overruled the decision on this specific issue on the basis that, even though the number of copies made by Reine-Marie Paris was lower than 12 (as required by the French art legislation for original editions of sculptures), such copies had not been produced from a plaster mould made personally by the artist2.

In short, under French law, posthumous bronze casts made from an artist’s master mould can be called original (provided they are limited to a maximum of 12 editions), but not if they constitute a surmoulage.

This is certainly true for works created before the adoption of Law No 2006-961, 1 August 2006, transposing into the French Intellectual Property Code the Directive No 2001/84/EC of the European Parliament and of the Council on the resale right for the benefit of the authors of original works of art dated 27 September 2001.

The question remains open, however, for any posthumous work of art produced thereafter.

According to the new Article L122-8 of the French Intellectual Property Code, an original work of art is defined as ‘a work made in limited edition by the artist personally or under his control’.
Does it mean that French courts will henceforward consider that ‘dead men don’t sculpt’3 and, therefore, that any posthumous work of art can no longer be considered as an ‘original edition’?
Let’s wait and see.

1 Cass Civ 1st 4 May 2012, No 11-10763.
2 See previous decision, Cass Civ 1st 18 March 1986, No 84-13749.
3 See <http://garyarseneau.blogspot.fr/2011/07/dead-dont-sculpt-non-disclosed-rodin.html >.