OD FLASH | Right of publicity: the agreement signed between an employee and their employer may justify its application following the employee’s dismissal

French Supreme Court, Social Division, 23 October 2024, n°22-19.700

According to Article 9 of the Civil Code, everyone has the right to respect for their private life. Among the elements of private life is the right of publicity, which each individual may seek to protect or use through freely consented agreements. Such agreements may be concluded within the framework of an employment relationship.

In this case, an employee was hired as a chemical engineer. She was dismissed and subsequently brought a claim before the labor tribunal to annul her dismissal. She also sought additional compensation for mission inventions and damages for the violation of her right of publicity.

Indeed, the employee had signed an agreement with her employer in which she granted the employer an exclusive right to use her name and image for the promotion of hair and cosmetic products, in exchange for remuneration. She alleged that the employer continued to use her image, especially on product information leaflets, following the termination of her employment contract.

The company appealed the decision. The Court of appeal found that the employee had signed such an agreement and that, under this agreement, she had received the sum of €18,293.80. The judges held that the disputed leaflets had been issued during the execution of the employee’s contract, at a time when the license was in force, and thus dismissed her claims for damages. She lodged an appeal to the French Supreme Court, arguing that the mere fact of infringing her right to oppose the publication of her image after her dismissal entitled her to compensation.

The French Supreme Court upheld the reasoning of the lower courts and dismissed the employee’s appeal. It held that the provisions related to the right of publicity fall under contractual freedom and that “the breach of this provision can only be claimed if the disputed distribution is not connected to the performance of the contract.”

The French Supreme Court therefore confirmed that, as the leaflets in stock had been issued during the execution of the contract and were compensated, and since the image license had ceased to be enforced by the employer after the termination of the employment contract, the violation of the right of publicity was not established. This violation is defined by the High Court as the “capture, retention, reproduction, or use of the employee’s image outside of the execution of the image license amendment.”

The Social Division recently reaffirmed its position that the mere establishment of an infringement on the right to oppose the publication of one’s image gives rise to a right to compensation (French Supreme Court, Social Division, 19 January 2022, No. 20-12.420; 14 February 2024, No. 22-18.014; on this subject, see “Le droit à l’image sur le terrain du droit du travail : contentieux émergents… ,” Ogletree Deakins, La lettre Option Droit & Affaires, 3 April 2024). With this decision, the Court of Cassation illustrates instances of violation of the right of publicity in employment relations and emphasizes that a violation occurs when distribution is not linked to the performance of the contract.