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Celebrities’ commercial interests seem well – and even very well – protected in US law. One can even wonder if there is not an excess of protection. Chapter 21 in this volume, authored by David Tan, is entitled: “Who Needs Trademarks When You Have the Right of Publicity?” The critical scope of this question seduces the civil law specialist, who indeed wonders whether US law has not gone too far in protecting celebrities. The civil law specialist is very surprised to learn that in the United States, a celebrity can control the commercial use of their physical postures, of body parts or even of their car! Viewed from the other side of the Atlantic, it seems that in the United States it is easier to acquire a right of publicity than an intellectual property right.
In French copyright law, contrefaçon consists of the infringement of any of the author's rights. As the only basis for a remedy for the violation of French droit d'auteur, contrefaçon originally lacked a broad scope. The expansion of contrefaçon is a relatively recent development, which is now being challenged by offences committed by the general public.
In the past, the general public associated contrefaçon exclusively with the sale of counterfeit goods of luxury brands. The media regularly echoed this narrow interpretation. It is only recently that the contrefaçon of works of authorship has been in the media spotlight. The general public has grown increasingly aware that downloading movies or songs without authorization is illegal. In 2006, a large part of French public opinion demanded the freedom to download, in other words, the end of contrefaçon on the Internet – at least as applied to non-commercial users. In summary, because the public understands contrefaçon to entail the penalty of either a monetary fine or the threat of imprisonment, public opinion considers actions for contrefaçon to impede free access to culture and to marginalize young people. The concept of contrefaçon is clearly undergoing an unprecedented crisis of legitimacy. This phenomenon however appears specific to droit d'auteur. In contrast, the sanctions associated with trade mark and patent infringements are not being challenged; in fact the European Union does not hesitate to describe these infringements as a kind of international organized crime.
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