The French Right of Image: An Amiguous Concept Protecting the Human Persona

Abstract

This resistance to the adoption of a legal right to one's image has been a direct result of France's struggle to balance the conflicting interests that it finds inherent in the recognition of this right.Most of the effort to reconcile this issue has come from the French courts.Thus far, the courts have succeeded into turning what was essentially a negative right, enabling an individual to prohibit unauthorized uses, into a positive right, enabling the individual to receive damages.This Article discusses the French droit a l'image-the right of image-and the scope of protection that it affords against unauthorized uses of one's image.This is a right that can be analogized to the right of publicity.Part I discusses the historical background of the French right of image, its genesis in the French courts, and the modem adoption of image protection in French statutory law.This Part focuses primarily on the ambiguous nature of the right of image as embodying both privacy-based, extrapatrimonial principles, as well as economic-based, patrimonial principles.This Article argues that the scope of legal protection available to persons in France depends largely upon the court's characterization of the right according to these competing interests.Part II analyzes the different sources of legal protection for one's image under French law and the scope of the right provided thereunder, that includes the French Civil Code, Penal Code, and copyright laws.This Part also identifies the elements required to prove a cause of action for infringement of one's right of image.Part III focuses on the availability of legal defenses to a right of image claim.Part IV discusses the transferability and descendibility of the right of image, paying particular attention to the extrapatrimonial and patrimonial characterization of the right.Part V discusses the possible conflicts of laws, as well as discussing the applicable laws a French court might apply to foreign and domestic plaintiffs.Finally, this Article concludes that as advancements in modem communication make it easier to misappropriate one's image, property-based-rather than privacy-based-claims will become more frequent, making it increasingly difficult to asses the true nature of the French right of image.