Who: The French Inter-Professional Committee of Foie Gras (CIFOG) and L214 Association
Where: France
When: 13 March 2020
Law stated as at: 20 April 2020
What happened:
The Paris Court of Appeal has dismissed a request from CIFOG to ban a short film lasting 30 seconds on social media, which reproduces an advertisement by CIFOG that promotes foie gras, on the grounds of copyright infringement.
The CIFOG, whose purpose is to promote foie gras, broadcasted the ad depicting people cooking and eating foie gras to highlight the quality of the product. The L214 Association, a French animal-protection association, published the film, which also featured pictures of the rearing conditions of the ducks and an amended version of the CIFOG’s advertising slogan to denounce the manufacturing conditions of foie gras.
The Paris Court of Appeal reversed a lower court’s summary judgment on the grounds that:
The mere fact that CIFOG made financially invested in the ad that the L214 Association has benefitted from cannot, in itself, legitimise a restriction on the freedom of speech.
To strike the proper balance between freedom of speech and copyright, the CIFOG would still have to satisfy the requirements of copyright protection (that is, the work must exhibit originality, reflecting the author’s imprint), which had not been substantiated by the CIFOG.
Finally, assuming that the ad is protected by copyright, the judge could only rule in favour of infringement on condition that the exception of parody, pastiche and caricature and laws of the genre is excluded.
In these circumstances, the Court of Appeal considered that the infringement of intellectual property rights was not manifest to justify the prohibition of the film. The Paris Court of Appeal found that the L214 Association Film should not have been banned by the lower court.
Why this matters:
Without ruling on the protection of copyright over the ad in this case, the Court of Appeal has highlighted the existence of the exception for parody, pastiche, caricature and laws of the genre, which prevails over copyright.
However, the opposite, in the event that an advertisement had reproduced a film, would have been different. This “copyright” exception is rarely admitted by the French courts when the content at stake has an advertising purpose. When granting this exception, French courts usually ensure that the parody, pastiche or caricature does not disparage the company or the trademark concerned and does not have a commercial purpose with a view to creating profit.
Moreover, this exception is only provided as an exception to copyright – in trademark infringement cases, there is no similar exception provided by law. However, French courts have already admitted to be proportionate to the freedom of speech the use of a trademark to criticise the products and services concerned and point out their consequences (for example, for the environment).
