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  • Writer's pictureMarie-Avril Roux Steinkühler

🇬🇧 - Decision "Dialogue of the Carmelites" – A French tribute to the creative freedom

The final scene of Francis Poulenc's opera on a libretto by Georges Bernanos, a final scene which concentrates all the issue and sense of the work, shows the Carmelites having made a vow of martyrdom under the French Revolution, climbing one by one onto the scaffold and disappearing while singing Salve Regina then Veni Creator; joined by Blanche de la Force, even though she had refused that vow.

Backstage, Komische Oper, Berlin
Backstage, Komische Oper, Berlin © Marie-Avril Roux

But in his staging of the subject of dispute, Dimitri Tcherniakov, accustomed to polemical productions, presents a wooden booth surrounded by the crowd held back by a security tape, in which the nuns are enclosed. At the sound of the recorded religious songs, Blanche de la Force saves them one by one from asphyxiation and locks herself in the cabin, which explodes a few moments later. The sound of the guillotine blade which punctuates each demise in Poulenc’s opera, marks here each rescue.

In a decision on 13 October 2015[1], the Paris Court of Appeals had ruled, contrary to the lower court, that the spirit of the work was misrepresented by Dimitri Tcherniakov's staging presented at the Munich Opera in 2010, even though the libretto and the music were perfectly respected.

Very controversial, this decision much removed from previous case law and accompanied by several penalties, was quashed on 22 June 2017.

Grounds : the findings of the Appeals Court are inconsistent with the misrepresentation held (1).The penalties imposed ignore the application of proportionality control and the search for a fair balance between the fundamental rights at stake (2).

1. The findings of the Appeals Court are inconsistent with the misrepresentation held

In its decision of 13 October 2015, Paris Appeal Court had deemed that Dimitri Tcherniakov's staging had misrepresented “the spirit of the work”. Ironic, because it had previously pointed out that “the disputed staging changed neither the dialogues, absent in this part of pre-existing works, nor the music, even going so far as to reproduce the sound of the guillotine's chop which punctuates each demise in Francis Poulenc's opera”. In other words, the elements of the work were not changed and the integrity of the work was respected.

In the same sense, the Appeals Court admitted that the director “respected the themes of hope, martyrdom, grace, and the transfer of grace and the communion of saints, dear to the authors of the original work”.

And yet, it had ruled that the work had nonetheless been misrepresented. This reasoning finds its justification in copyright law in the distinction between purely material elements and “contextual” elements.

In effect, according to the appeal judges, the staging had led to changes in the sense of the work. By punctuating the release of the nuns instead of punctuating the death as originally planned in the work of Bernanos and Poulenc, the sound of the guillotine as used by Dimitri Tcherniakov constituted a misrepresentation of the original work.

The Court of Cassation correctly penalises not the substance but the inconsistency held by the Court of Appeal. This does not mean however that the Versailles Court of Appeal, before which this case was sent, will not be able to retain the misrepresentation, but the exercise will be very difficult and the motivation will have to be very solid.

However, it would be a mistake for the judge to become a “censor”! French doctrine, supported in this matter by a part of the music critique[2], has a tendency to consider that Dimitri Tcherniakov “took very important liberties with the opera[3]”.And Christophe Caron adds that the Versailles Court of Appeal “should not forget that the authors of operas also enjoy a moral right which must not be systematically sacrificed at the altar of the director’s right. In effect, the opera is not an underpinning that is possible to change with impunity. Its authors do not enjoy a diminished moral right (…)[4] ».

Should the director be at the service of the work, or does he have to be regarded as a new author of a composite work (“oeuvre composite “ in French, derivative work made from the existing first work), or also as a performing artist, free to make his own performance.

2. The penalties announced by the Court of Appeals have no legal basis for lack of prior control of proportionality

In its decision of 13 October 2015, the Court of Appeal announced an extremely severe penalty - which amounts to censorship - by “ordering the Bel Air media company and Land de Bavière, under penalty, to take any measure to cease immediately and in every country the publication in commerce or more generally publishing, including online public communications networks, the disputed video and prohibiting the Mezzo company, under penalty, to broadcast or authorise the broadcasting of the latter in television programs and in all countries”.

The Court of Cassation overruled this decision on the grounds that the Appeals Court did not examine “as it had been invited to, how does the search for the right balance between the director's creative freedom and protection of the composer’s and author's moral rights justify the prohibition”.

It is interesting to note that the Court of Cassation in this case invokes Article 10 paragraph 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms and revives the expectation of the Klasen decision, without, however, giving any indication as to its application.

It could also have considered that the international jurisdiction of the French court cannot be unlimited. As for the pure and simple prohibition announced by the Court of Appeal; a serious and grave measure, it is true in any case that a simple public warning could have been preferred. The public is perhaps able to decide for itself?...

Since this cassation judgment, the initially prohibited marketing of audiovisual recordings of Dimitri Tcherniakov's staging in the form of videos has resumed and the case and parties have been referred to the Versailles Court of Appeals. Case to be continued ...

[1]CA Paris, division 5, ch. 1, 13 Oct.2015, no. 14/08900, Bernanos et al w/ Munich Opera et al

[2] C. Merlin, "Tcherniakov, a radical in court", Le Figaro 4 July.2017

[3]In this sense, see in particular C. Caron ""The Dialogue of the Carmelites” again before the Court of Cassation", Communication Commerce Électronique, September 2017, no. 9, pp 1 - 3 at E. Treppoz, "Comment on the decision of the decision of 22 June 2017", Légipresse, September 2017, no. 352, pp. 439 - 441

[4]C. Caron, " " The Dialogues of the Carmelites" again before the Court of Cassation », Communication Commerce Électronique, September 2017, no. 9, pp. 1 - 3


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