Do the French have their own « Haelan » case? The droit à l’image as an emerging intellectual property right

IP at the Edge

No need to wait for the answer: French caselaw has no equivalent to the Haelan decision (Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc, 202 F.2d 866 (2d Cir. 1953)). No court has yet clearly asserted that celebrities “would feel sorely deprived” if they could no longer exploit their fame. As a result, there is no decision laying the foundation for an exclusive right in the market value of celebrity identity. Instead, there are innumerable decisions that in fact apply such a right, without ever explaining why, because French judges are very reluctant to articulate principles and lay down rules. Article 5 of the Civil Code, moreover, formally prohibits French judges from doing so. Nonetheless, a judge-made phenomenon very similar to the “right of publicity” (including its normative shortcomings) can be observed in France. It is therefore worth endeavoring a comparison between French and US publicity rights.

Contribution de David Lefranc parue in Rochelle Cooper Dreyfuss and Jane C. Ginsburg (dir.), Intellectual Property at the Edge. The Contested Contours of IP, Cambridge University Press, 2014