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The use of a fine art work on a product package

Jan. 24, 2020

Almost every one of us has wondered on a possibility of using the famous fine art works on a product package. It is obvious that the subject matter of the copyright is protected during a certain period established by the legislation.

In accordance with Article 7 of the Berne Convention, “(1) The period of the protection granted by this Convention shall be the entire lifetime of the author and fifty years after his death.

(6) The Countries of the Union may establish a period of protection that exceeds the periods stipulated by the preceding Paragraphs.”

The Civil Code of the Russian Federation (hereinafter referred to as “the C.C.R.F.”) has established the period of the exclusive rights to the work as 70 years.

In this article, I would like to suggest that we should consider a situation, when an economic entity intends to use on the product packages the fragments of the fine art works, the period of the exclusive right to which has expired.

In accordance with Paragraph 1 of Article 1227 of the C.C.R.F., “The intellectual rights do not depend on the right of ownership and other material rights to a tangible medium (thing), in which the corresponding result of the intellectual activities or the means of individualization is expressed.”

In accordance with Paragraph 1 of Article 1282 of the C.C.R.F., “After the termination of the exclusive right, the work of science, literature or art, whether published or unpublished, shall pass into the public domain.

After the termination of the exclusive right, the work shall pass into the public domain. The work that has passed into the public domain may be freely used by any person without anyone's consent or permission and without a payment of the author’s remuneration. In this case, the authorship, the author’s name and the inviolability of the work shall be protected (Paragraph 2 of Article 1282 of the C.C.R.F.).

By virtue of Unnumbered Paragraphs 2 and 3 of Article 53 “The Fundamentals of the Russian Federation on Culture” approved by the Supreme Soviet of the Russian Federation 09.10.1992 No. 3612-1 (hereinafter referred to as “The Fundamentals of the Legislation on Culture”), “Enterprises, institutions and organizations may manufacture and sell their products (including the advertising ones) having an image (reproduction) of the items of culture and cultural heritage, the workers of culture, if there is an official permission of the owners and the persons, whose images are used. The fee for using the image shall be established based on an agreement. While using the image without the permission, the norms of the legislation of the Russian Federation shall be applied.”

In accordance with Article 36 of the Federal law “On the Museum Fund of the Russian Federation and the Museums in the Russian Federation” of 26.05.1996 No. 54-FZ (hereinafter referred to as “The Law on Museums”), “The transfer of the rights to the commercial use of the reproductions of the museum items and the museum collections included in the Museum Fund of the Russian Federation and located in the museums in the Russian Federation shall be carried out by the museums in the manner established by the owner of the museum items and the museum collections (Unnumbered Paragraph 2 of the said Law).

The manufacture of the fine, printed, souvenir and other replicated products and consumer goods using the images of the museum items and the museum collections, the buildings of the museums, the items located at the territory of the museums, as well as with the use of their names and symbols shall be carried out with the permission of the directorates of the museums (Paragraph 3 of the said Law).”

In accordance with the Law on Museums, the Museum Fund is a set of the museum items and the museum collections that are permanently located at the territory of the Russian Federation, whose civil circulation shall be allowed only under some certain restrictions.

The inclusion of the museum items and collections in the Museum Fund of the Russian Federation shall be made by the Federal Executive Authority, which is responsible for the state regulation in the field of culture after carrying out an appropriate examination.

The museum items and collections shall be considered to be included in the Museum Fund of the Russian Federation since the date of the registration of the correspondent fact in the State Catalogue of the Museum Fund of the Russian Federation.

The civil circulation of the items that make up the Museum Fund shall be allowed only in compliance with the restrictions established by the Law on Museums. In accordance with Paragraph 2 of the Regulations on the Museum Fund of the Russian Federation, on the State Catalogue of the Museum Fund of the Russian Federation, on Licensing the Activities of the Museums in the Russian Federation, approved by Resolution of the Government of the Russian Federation of 12.02.1998 No. 179 (hereinafter referred to as “The Regulations”), the state part of the Fund includes the museum items and the museum collections that are in the Federal ownership or in the ownership of the subjects of the Russian Federation regardless of the fact, who owns them; as well as the ones acquired after the entry into force of the Law on Museums by the state museums and other state institutions regardless of the form of acquisition.

Paragraph 3 of the above Regulations establishes that the Federal property shall include the museum items and the museum collections that have been in the Federal ownership (the property of the former USSR and RSFSR) before the adoption of the Law on Museums regardless of the sources of arrival, as well as the ones that have been acquired at the expense of the Federal budget (the budgets of the former USSR and RSFSR) and fixed in the operational management or transferred for the use to the museums and other organizations regardless of the form of ownership and departmental affiliation.

According to Paragraph 4 of the said Regulations, it is established that the Ministry of Culture of the Russian Federation shall exercise on behalf of the Russian Federation the property and non-property rights and duties, as well as the state control over the museum items and the museum collections included in the Fund.

The absence of the established procedure for concluding the agreements for granting third parties the rights to the use of the reproductions of the items from the Museum Fund of the Russian Federation for the commercial purposes does not exclude the implementation of the powers of the museum established by the current legislation and cannot be the grounds for an arbitrary use of the reproductions of these items, and cannot exclude the effect of Article 36 of the Law on the Museum Fund of the Russian Federation, that is, restrict in any way the right of the museum.

Taking into account the above norms of the law, it can be concluded that it is necessary to obtain the permission for the purposes of the commercial use of the work located at the Museum Fund of the Russian Federation.

Despite the fact that the museum is not the owner of the exclusive right to the work, the reproduction of a painting may be considered as a violation of the right of the museum as the owner of the painting included in the Museum Fund of the Russian Federation and stored in the museum.

Article 11 of the C.C.R.F. and Article 4 of the Arbitration Procedural Code of the Russian Federation enshrine the judicial defense of the violated or disputed rights and legitimate interests. The defense of the civil rights is carried out by those listed in Article 12 of the C.C.R.F. One of the methods of defense of the civil rights is to restore the situation that has existed before the violation of the right and to prevent the actions that violate the right or create a threat to its violation (Unnumbered Paragraph 3 of Article 12 of the C.C.R.F.).

This method of defense involves a need to prove the legality of the situation that the plaintiff wants to restore, as well as the fact that the previous (pre-existing) situation has been violated by someone and (or) continues to be violated.

Under such circumstances, based on a literal interpretation of one of the methods of defense of the rights listed in Article 12 of the C.C.R.F., namely the suppression of the actions violating the right and the suppression of the actions for the use of the image of the painting, it should be admitted that the implementation of this method of defense means the cessation of the violation having a long-term nature and taking place at the moment of the adjudication.

Taking into account the functions, the goals and the subject of the activities of the museum, which, by virtue of the duties imposed on it, must ensure recording, storing and preserving the museum items and the museum collections, we believe that the museum, being entitled to conclude the civil law agreements with third parties for the commercial use of the reproductions from the Museum Fund of the Russian Federation, is simultaneously endowed with the private and public powers to file a statement of claim to the court on the prohibition of such use, if it takes place without the museum’s consent.

The legislator has imposed on the museum, whose collection contains the corresponding item of the Museum Fund of the Russian Federation, a regulatory function, which purpose is to create the conditions aimed at excluding the possibility of the arbitrary use for the commercial purposes of the reproductions of the items included in the Museum Fund of the Russian Federation by the persons, who can cause damage by such use to the Museum Fund of the Russian Federation by forming negative associations with the fine art works.

If a dispute is initiated, the court may admit the fact that the museum's claim is aimed at suppressing the defendant’s actions to use the reproduction of the painting in the business activities without the museum’s consent that violate the museum’s rights stipulated by Article 36 of the Law on Museums and Article 53 of the Fundamentals of the Legislation on Culture.

The use of the methods of defense of the civil rights, including restoring the situation that has existed before the violation of the right, and the suppression of the actions that violate the right or create a threat to its violation and also the self-protection of the right (Articles 12, 14 of the C.C.R.F.) meet the substance of the violated intangible right and the nature of the consequences of this violation.

Thus, the norms of the C.C.R.F. are not applied to these legal relations, in particular, Article 1252 of the C.C.R.F., but the norms that regulate a particular procedure for the use of the reproductions of the museum items are applied. This position found its support in the judicial practice (Resolution of the Intellectual Property Court of 05.03.2015 in case No. A63-18468/2012, Resolution of the Intellectual Property Court of 09.06.2018 in case No. A40-256706/2016).

In accordance with Article 37 of the Law on Museums,The individuals and the legal entities, the state authorities and the local self-government authorities that are guilty of the violation of the legislation of the Russian Federation on the Museum Fund of the Russian Federation and the Museums in the Russian Federation shall bear an administrative, civil or criminal liability in accordance with the legislation of the Russian Federation.”

In accordance with Article 7.3 of the Code of the Administrative Offences of the Russian Federation, “The violation of the requirements of the legislation on the protection of the cultural heritage items (historical and cultural monuments) of the peoples of the Russian Federation, the violation of the regime of the use of the lands within the borders of the territories of the cultural heritage items or the non-compliance with the restrictions established within the borders of the zones of protection of the cultural heritage items, except for the cases stipulated by Parts 2 and 3 of this Article,

shall entail the imposition of an administrative fine on citizens in the amount ranging from fifteen thousand to two hundred thousand roubles; on officials - from twenty thousand to four hundred thousand roubles; on legal entities - from two hundred thousand to five million roubles.

2. The actions (inaction) stipulated by Part 1 of this Article committed in respect of some certain cultural heritage items of the Federal significance, the list of which shall be established by the Government of the Russian Federation, the especially valuable cultural heritage items of the peoples of the Russian Federation, the cultural heritage items included in the World Heritage List, or at the territories of these items or within the zones of their protection, at the territories of the places of interest, the historical and cultural conservation areas (memorial estates) or within the zones of their protection

shall entail the imposition of an administrative fine on citizens in the amount ranging from twenty thousand to three hundred thousand roubles; on officials - from fifty thousand to five hundred thousand roubles; on legal entities - from one million to twenty million roubles.

3. The actions (inaction) stipulated by Part 1 of this Article committed in respect of the identified cultural heritage items or at their territories

shall entail the imposition of an administrative fine on citizens in the amount ranging from fifteen thousand to one hundred thousand roubles; on officials - from twenty thousand to three hundred thousand roubles; on legal entities - from one hundred thousand to one million roubles.”

The painting that is stored in the museum can be classified as a cultural heritage item. If it is established that the use of the cultural heritage item without the permission is the violation of the law, then the administrative liability is stipulated for such violation.

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Author of article

Aleksandra Pelikh

Aleksandra Pelikh

Head of Department / Senior Lawyer