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Being in Love or Being Lovers of the Bastille – Both can Coexist

By Nicolas Savary
Being in Love or Being Lovers of the Bastille – Both can Coexist

In this Insight we explore the requirement of originality for a copyright work in a song title and the scope of protection thereof in Love's Labour's Lost. Happy Bastille Day.

An artist who composed the song “Les amoureux de la Bastille”, filed for protection of the musical work together with its song title before the SNAC (national union for authors and composers) in 2007 and before the SACEM (national company regrouping composers, authors and editors in the field of music) in 2011. The artist later composed the song “Nous sommes” and filed this before both the SNAC and the SACEM in 2011.

In 2012, the French stage musical “1789: Les amants de la Bastille” was launched. The show tells the story of the French Revolution of 1789 and the turbulent love story between a young revolutionary man from the French countryside and a young woman who was the daughter of a police officer based at La Bastille prison.

The producers of the musical filed two French trade marks (n°3888496 and 3817535) for the sign “1789, les amants de la Bastille”.

The artist felt aggrieved and alleged that “Les amoureux de la Bastille” was copied and infringed by the name “les amants de la Bastille”. He also alleged that such acts amounted to unfair competition. He asked that the producers cease use, withdraw protection for the works and surrender the French trade marks. The artist also asked that all references to the song’s title “Nous sommes” be withdrawn from the show.

The artist considered that the title “Les amoureux de la Bastille” was sufficiently original to justify protection under French law based on the fact that he had met a young woman on Place de la Bastille and that this is their love story, as detailed in the song.

The originality of the song’s title was contested by the producers of the musical. They alleged that such title was already used for a photograph of the famous French street photographer Willy Ronis in 1957 depicting two persons in love on top of the column placed in the middle of Place de la Bastille. The producers also claimed that such title was banal due to being merely descriptive of two lovers on Place de la Bastille. They contended as a consequence that the title “Les amoureux de la Bastille” could not benefit from the protection granted by article L 112-4 of the French Intellectual Property Code according to which “the title of an oeuvre of the spirit, as long as it presents an original character, is protected as the oeuvre itself” and everyone should be allowed to use it.

In its decision of 19 June 2012 [subsequently confirmed by the Court of Appeal on 6 September 2013], the Court of First Instance of Paris (Tribunal de Grande Instance de Paris) considered that the originality of the title should be inherent and not linked to a personal story. The Court of Appeal also confirmed that the title of five words with a common grammatical presentation was purely descriptive. Even when the terms are combined, they only represent two persons with feelings of love and a geographical place, without any personal aspect that could have been added by the artist. They were also conscious that said title, in an identical form, had already been used to illustrate the photograph of Mr Ronis and that said title did not materially depart from this.

Consequently, as the title was not deemed original, it should not benefit from the protection granted by article L 112-4 of the French Intellectual Property Code and there could be no infringement. Moreover, the Court also stated that there could be no unfair competition where the two signs do not designate the same kind of oeuvre: “Les amoureux de la Bastille” designates a song’s title while “1789, les amants de la Bastille" designates the name of a musical (which is a live show). Finally, the Court added that the stories depicted in the song and in the musical took place at different periods in time and that while the name Bastille in the musical referred to a prison the name Bastille in the artist’s song referred to a public place in Paris.

As to the song “Nous sommes” that was allegedly infringed by the musical, the Court stated that there is no such song in the musical and therefore no infringement.

What is the lesson that can be learned from this affair? It would have been far more beneficial if the artist had sought to protect the song title as a trade mark.

Please do not hesitate to contact our Trade Marks and Designs Team should you have any questions or require any assistance in connection with the subject matter of this article.