A recent ruling by the Paris High Court highlights the tension that can exist between the right of publicity and artistic freedom.

A renowned Spanish artist used some photographs taken of his former girlfriend to create works of contemporary art. She objected and based her action on article 9 of the Civil Code which protects privacy and the right of publicity. The artist defended in reliance on article 10 of the European Convention on Human Rights protecting freedom of expression.

The most important material question for the Court was whether or not the plaintiff had consented – expressly or impliedly – to the taking of the pictures and their subsequent reproduction and dissemination. Interpreting the plaintiffs behavior the Court concluded the consent with respect to one of the photographs and absence of such in respect of others.

When balancing two rights the Court concluded that a right not to have made public pictures of plaintiff in scenes that relate to her private and initimate life must prevail over defendant’s freedom of expression, be it of an artistic nature.

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