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Moulinsart Suffers a Set-back in Court Case

#1 · Posted: 7 Jun 2015 23:33
It is being reported by Le Soir that the court in the Hague has found against Moulinsart in a dispute with the Dutch club, Hergé Genootschap (The Hergé Society) over the payment of royalties for the use of images in their magazine.
The decision seems to hinge on the production of a document from 1942, in which it is said that Hergé assigned rights for Tintin to the publisher Casterman, and that these rights are therefore not in the possession of Studios Hergé, which in turn means that they cannot be implemented by Moulinsart.
While this is being greeted as the start of a free-for-all in some quarters, from what I've read the position seems a lot less clear cut.
It is being suggested that the decision will be the start of many subsidiary claims from people who have paid the asked for royalties to Moulinsart.
However, it does not seem to say that the issue is that royalties were asked for, so the idea that images can be suddenly used with impunity does not automatically follow. Casterman is in a strong partnership with Moulinsart and Studios Hergé, which if anything is stronger now than it has been for many decades, with sponsorship of the Hergé Museum, and many interesting projects in the pipeline.
There may be no benefit in attempting to reclaim monies from Moulinsart if Casterman is only going to seek the same compensation (and who knows, they may be more punitive, or demand interest, or other remedies).
There may also be a case to examine in that Casterman's conduct may suggest that they didn't believe that they had gained these rights from Hergé, and if they maintain that that was not their interpretation, could it be possible that the 1942 document might in the end be itself be overturned or found to be void?
It's going to be a field day for the lawyers, and I am sure it is not the last we have heard of this...
#2 · Posted: 8 Jun 2015 08:44
What would be fun is Casterman telling Moulinsart "All the millions that you have earned from Tintin belong to us, so hand them over!" I'd love to see Nick Rodwell's face when that happens!
#3 · Posted: 8 Jun 2015 10:45
I don't share your vindictive nature, nor do I believe it will come to that: it's not actually a great reflection on Casterman's business nous, if having signed a contract in 1942 giving them ownership of the albums, they then spent the next seventy-something years acting as if they didn't.
I'm the first to say that I was quick to think that the fact that the decision had been handed down in The Hague meant it was a pan-European court of final appeal sort of thing, when it is in fact a "local" decision in a Dutch court for a Dutch action. I've got a feeling this decision is going to be reexamined at length, and has further to go...
#4 · Posted: 8 Jun 2015 19:26
I really like Moulinsart, so I hope nothing major happens.
#5 · Posted: 8 Jun 2015 19:57
The case is far from over, as a French lawyer discusses in this interesting article on the Le Figaro website.
It bears repeating that crux of this decision only affects the situation in The Netherlands: it will also undoubtedly be appealed (not being a lawyer, I was uncertain at what level the decision had been handed down, but the French legal expert in the article is saying that the verdict can still be overturned).
There is also by no means any suggestion that copyright no longer pertains in the case of Tintin: that still stands, so images aren't made free to use by this decision; indeed, the French advocate is suggesting (or at least it appears so to me) that Casterman will have a vested in interest in not rocking the boat, as it has more to lose by making unauthorized image use easier than it would gain.

Update: I've not been making much headway through the Dutch of the legal decision, but the paragraphs from the 1942 contact on which it hangs are given in French, which is far clearer, and not the huge surprise which seems to have been heralded:

Art. 1 - Monsieur Georges REMI concède aux Etablissements CASTERMAN le droit exclusif de publication de la série des Albums LES AVENTURES DE TINTIN, QUICK ET FLUPKE, GAMINS DE BRUXELLES et autres parus ou à paraitre, dont il est l'auteur sous le pseudonyme de HERGÉ.
Art. 2 - Le droit de publication concédé s'étend pour toutes éditions en langue francaise et etrangères.

("Art. 1 - Mr. Georges Remi grants to the Casterman company the exclusive right of publication of the series of albums The Adventures of Tintin, Quick and Flupke the Brussels Kids and others, published or to be published, written under his pseudonym of Hergé.
Art. 2 - The publication rights granted extend to all editions in French and foreign languages.")

So the court appears to have decided that these rights cover all use of images in any publication; whereas (my guess would be that) the way Casterman and Moulinsart appear to have operated is Casterman have looked after the albums, and the use of individual images is controlled by Moulinsart.

I can see both sides, but feel that the matter will be ironed out with a bit more legal to-ing and fro-ing.

It certainly doesn't expose some heretofore unknown contract, nor does it really suddenly reveal that Casterman has some new power it never knew it had - it just makes a different emphasis on the wording than that which Moulinsart and Casterman has done.

Update update: I've now read the full contract, and as someone else has pointed out to me it appears that what we have in the 1942 contract is the establishment of a new agreement, or perhaps an emendation of a previous contract, to ensure that as coloured albums become available that Casterman will be the publisher, avoiding the possibility of the new volumes going to a different publisher leaving Casterman with the black-and-white books.
The intention never seems to have been that this was Casterman gaining exclusive power over all use of the art; it also contains a clause (Article 9) explicitly saying that Hergé remains the owner of the works, so in that sense nothing has changed, even following this decision.
Furthermore, in the case of foreign editions, it says that the general principles of the arrangements for Belgian sales (payments per page, royalties, the number of free copies sent to Hergé, etc.) pertain, but will also be open to renegotiation as appropriate; as the Dutch court would surely be bound by the foreign section of the contract, it may be that there are further papers which could alter the provisions of this document.

We must wait and see.

Update to the Update Update: One other little technical point which may or may not be significant, but is at least interesting is that the "1942" contract is in fact dated "the ninth of April, 1142" (le neuf avril mil cent quarante deux) - which must make it one of the longest standing agreements in publishing history, predating Caxton and the printing press in England by more than three hundred years... ;-)
I know it's a typo, but if one has to take one part of a contract at face value, why not all of it?

Supplementary Information for the Update to the Update Update As I had suspected, the copy of the contract doing the rounds is just that, a copy. It's probably even a transcript of the contract, rather than a duplicate taken from the source, so it is possible that the date typo was introduced at that stage, rather than having been present in the original. It explains why there are no signatures and no letterhead or other matter on the paper; at the very least you would have the signatures if this was the source document.
#6 · Posted: 11 Jun 2015 08:18
Without any real surprise, Moulinsart and Casterman have issued a joint statement to the press, which takes the same interpretation of the contractual situation between them that I outlined above, placing the division of rights between them as Casterman dealing with printed books, and Moulinsart retaining rights to other uses.

The press release makes no mention of an appeal of the Dutch court's decision, but I imagine that that will follow in the near future.

The statement in full:

Moulinsart SA and Éditions Casterman were astounded to learn of the decision made by the Court of Appeal at The Hague (Holland) on 26 May 2015. The origin of the case in question is the request made by Moulinsart SA to the Hergé Genootschap association to respect a contract agreed by the association in order to reproduce in its regular publication drawings by Hergé. The Court appears to have fallen into confusion over the "Tintin" rights held respectively by Moulinsart SA and by Éditions Casterman.
The contract between Éditions Casterman and Hergé specifies that Éditions Casterman owns the rights to publish on paper and in all languages The Adventures of Tintin. All other rights including the right to exploit separately extracts from the books and other drawings remain the property of Hergé.
By consequence, only Éditions Casterman hold the rights to publish The Adventures of Tintin on paper; only Moulinsart SA may exploit or authorise the reproduction of drawings and extracts from the books, representing Tintin and all other characters from the universe of Hergé.
For SA Moulinsart,
Viviane Vandeninden
Attachée de presse
#7 · Posted: 15 Jun 2015 09:31
So then it's not too surprising. You'll still have to deal with Moulinsart if you want to use single characters for your *needs*, and you'll only deal with Casterman when you want to do something with the whole book (say, translating it to another language).

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