The destruction of infringing works, an appropriate sanction : turnaround in the Chagall case
In a judgment dated 11 July 2025, the Paris Court of Appeal held that the presentation of a “fake” Chagall to the artist’s authentication committee as well as to an auctioneer constitutes an act of infringement. It therefore ordered the destruction of the disputed painting. In doing so, it departs from the solution adopted at first instance, which had dismissed the claim of infringement and ordered only the affixing of the word “reproduction” on the work. This reversal is accompanied by a clear position of the Court: only the complete destruction of an infringing work can ensure effective protection of copyright and of the art market.
A “FAKE” CHAGALL AT THE HEART OF THE DISPUTE
In 2017, a painting described as “Bouquet and village (flowers on Saint Jeannet, 1968–72), Acrylic on cardboard, 49.8 x 64.9 cm”, signed “Marc Chagall” and attributed to the artist, is presented to the Marc Chagall Committee for authentication. The Committee nevertheless considers that it is a forgery and proposes to destroy it amicably. Faced with the owner’s refusal, the artist’s heirs have the painting seized.
A court-ordered expert appraisal is carried out. It confirms that the painting is not authentic.
The Chagall heirs argue that the painting is infringing and request that it be handed over to them for destruction. In the alternative, they seek the affixing of the word “counterfeit” in a visible and indelible manner on the front and back of the canvas, and the removal of the signature.
THE CHARACTERISATION OF INFRINGEMENT: THE UNAUTHORISED COMMUNICATION OF THE WORK TO THE PUBLIC
Infringement is defined as any act violating the author’s economic rights, i.e. their monopoly of exploitation which includes the right of representation and the right of reproduction (Article L.122-1 of the Intellectual Property Code); or their moral rights, which include the right to respect for the work, the right of disclosure, the right of paternity, and the right of withdrawal or repentance (Articles L.121-1 et seq. of the same Code).
At first instance, the Paris Judicial Court finds that “the creation of the painting was an infringement” of an authentic Chagall known as “Flowers on Saint Jeannet”. The disputed painting indeed reproduces the theme, composition, style and colours of the original work.
However, the judges consider that only possession of the work is alleged against the owner, and not its creation, so that “no act of infringement can be attributed to him”. They hold that mere possession of the disputed painting does not in itself constitute an act infringing copyright, as it cannot be analysed as an unauthorised reproduction, representation, publication or dissemination of a work. They further find that, although the heirs of Marc Chagall argue that the owner submitted the painting to an auctioneer with the intention of selling it, they do not provide proof thereof.
On appeal, the Court likewise finds that “the disputed painting corresponds to an acrylic-on-cardboard forgery of Marc Chagall’s painting ‘Flowers on Saint Jeannet […]’”. But it adopts a different position from that of the lower court regarding the characterisation of infringement.
It recalls that the representation of a work means its communication to the public by any process whatsoever, which may notably include its “public presentation” (Article L.122-2 of the Intellectual Property Code). In this case, the owner of the disputed painting presented it to the Marc Chagall Committee as well as to an auctioneer. This action amounts to an unauthorised communication of the work to the public, which infringes the copyright of Chagall’s heirs and is attributable to the owner.
In this regard, the judges note that this presentation was carried out “manifestly with the intention of selling it”. However, this clarification appears unnecessary: the presentation of the work to third parties, without authorisation from the rights holders, is in itself sufficient to characterise infringement. The owner’s intention is irrelevant. The same applies to his good faith, which the Court moreover notes.
The Court of Appeal therefore holds that infringement is established.
THE DESTRUCTION OF INFRINGING WORKS: A MEASURE FOR THE PROTECTION OF COPYRIGHT AND THE ART MARKET
In the event of a conviction for infringement, judges have the power to order the destruction of infringing goods (Article L.335-6 of the Intellectual Property Code). This measure has the advantage of ensuring that an infringing work can never reappear on the market. But it is radical and may appear to interfere with the owner’s rights, particularly where they are acting in good faith.
In similar cases, judges have therefore been tempted to opt for less severe solutions. In case law, the practice has thus developed of ordering the affixing on the infringing work of the word “reproduction” or “counterfeit” (Cass. Civ. 1st, 24 November 2021, no. 19-19.942, also concerning a “fake” Chagall by coincidence).
In the present case, this measure was adopted at first instance. The judges refused the destruction of the disputed painting, in the absence of an act constituting infringement. They therefore ordered only the affixing of the word “reproduction” in a manner “visible to the naked eye and indelible”, on the reverse of the work. They moreover noted that this measure had been accepted by the owner and considered it sufficient to deprive the disputed painting of any market value and to prevent its sale.
Such a solution appears unsatisfactory and debatable. Admittedly, it takes into account the individual interests of the owner and the limited risk of resale. But the affixing of the word “reproduction” is inappropriate, as it wrongly suggests that it is an authorised copy and not an infringement. Moreover, it does not guarantee the definitive removal of the work from the market, since it may be concealed or even erased.
The Court of Appeal returns to a stricter solution: infringement having, in its view, been established, it orders the destruction of the disputed painting. Above all, the judges expressly state that the destruction “does not present a disproportionate character” and constitutes “the only measure capable of responding to the general imperative of combating infringement and of ensuring that the disputed painting is definitively excluded from any commercial circuit so as not to further compromise the copyright attached to Marc Chagall’s work of which his heirs are the beneficiaries”.
The solution is to be welcomed, especially in relation to a work whose lack of authenticity was not disputed. The total destruction of an infringing work is the only solution guaranteeing its definitive removal from the market. Authors, their heirs, the art market and collectors all stand to gain in security.
This article was published in the journal “L’Objet d’art”.
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