The content of copyright assignments goes from a rigorous formalism to a total lack of formalism, causing the legal certainty of authors and producers to waver. French case law clarifies the current state of the law with a recent decision of the Court of Cassation.

Legal formalism applicable to audiovisual production contracts

Article L.131-3 of the French Intellectual Property Code (CPI) imposes a strict formalism of the transfer of authors’ rights in the context of audiovisual adaptation, requiring a written document and several warranties for the author regarding the extent of the assignment and the conditions of exploitation.

In a decision dated as of November 21 2006 (No. 05-19.294), the French Court of Cassation expressly stated that the formalism of the assignment of rights would only apply to contracts expressly referred to in Article L. 131-2 paragraph 1 of the French intellectual property code, i.e. contracts for representation, publishing and audiovisual production. However, according to the parliamentary work aimed at drafting the said articles, it could seem that the legislator’s intention was to extend the formalism to all contracts impacting the author to better protect him.

In a recent decision date as of February 28, 2024 (No. 22-18.120), the 1st Civil Chamber of the Court of Cassation seems to take advantage of this ambiguity. 

As the company producing and publishing phonograms of the song « Partenaires Particuliers« , had not formalized its written authorization for the association of the song excerpts with the images of the picture «Alibi.com », it maintains that such synchronization consequently constitutes an infringement of the economic rights attached to the song.

However, the French Court of Cassation dismissed the request of the producer, assignee of the rights and of the songwriters and composers and established that formalism did not apply in contracts concluded by the companies holding the copyrights.

A formalism that does not apply to rightsholders

In the Partenaires Particuliers decision, the Court of Cassation recalled that the absence of a written contract does not invalidate the transfer of rights between two companies and that the requirement of formalism only applies to contracts to which the authors are parties.

Thus, it deducts and interprets from the paragraph 2 that contracts “ by which copyright is transferred  » aexclude sub-assignment contracts, whereas it could also have interpreted it to include any contract assigning or granting in any forms authors’ rights. .

The Court states that the provisions of articles L. 131-2 and L.131-3 of the Intellectual Property Code  » govern only the contracts granted by the author in the exercise of his right of exploitation and not those that may conclude the assignees with sub-operators « . In this case, the Court does not even require the existence of a written contract, because it considers that the agreement is attested by informal exchanges with a sub-operator: the producer and publisher of the phonograms.

This solution has been a constant case law since the Perrier  judgment (n° 91.11-241 dated October 13 1993): « the provisions of Article L. 131-3 of the Intellectual Property Code govern only the contracts granted by the author in the exercise of his right of exploitation, and not those that may be concluded by the transferees with sub-operators« .

As the formalism imposed by the French intellectual property code is intended to protect the author, the Court of Cassation maintains that if the author is not a party to the contract, then such formalism has no reason to be imposed. Indeed, assignees are most often legal persons and as such they do not benefit from any special protection.

A debatable solution

However, even if the author is not directly a party to the contract, the contract can have effects on the author.

On the one hand, in the context of a sub-exploitation contract, the remuneration may be proportional or lump sum (Article L.131-4 of the IPC), whereas, except for legal and detailed exceptions, the author’s remuneration must be proportional. Thus, the author may be negatively impacted if a contract concluded by a sub-operator is unfavourable to him and only grants him a lump sum or a derisory proportional remuneration.

On the other hand, an author may choose to carry out his activity with the status of an entrepreneur and create a company of which he will be the sole shareholder and the manager. Accordingly, some members of the French doctrine have argued that this should not deprive an author of the protective provisions on contractual formalism.

In addition, the indifference of formalism in this type of contract raises questions about the lack of consent and proof of transfer of rights. In this case, there were numerous exchanges between the two parties until a disagreement arose concerning the mention intended to appear in the credits of the film. Nonetheless, anyone can break off pre-contractual negotiations and although the late termination of the negotiations may incur the extra-contractual liability of its author, the contract will not be deemed to be concluded.

In terms of author’s rights and because of the formalism imposed, if no contract has been signed, it is commonly considered that consent has not been given, even if the author has tolerated the situation. (Cass. 1st civ. 13 November 2014, 13-22.401 for the synchronization of music in a television series).

En revanche, les dispositions du Code civil applicable à la conclusion des contrats, n’imposent pas de formalisme, ni même l’existence d’un écrit mais seulement le consentement des parties au contrat.

Thus, in the “Partenaires Particuliers” case  , the Paris Court of Appeal affirmed in the decision of March 11, 2022 (No. 20/09922) confirmed by the Court of Cassation that the reservation made regarding the mention to be included in the credits « does not appear serious and likely to call into question its agreement to sign the contract » insofar as the phonogram producer and publisher stated « unequivocally and this until the last moment, that it would sign the contract and that it agreed to the extent of the assignment namely the « number of extracts, the duration of the extracts, the amount of remuneration, […] the limits and conditions of the authorization granted« . To this,  the Court of appeal adds: « even if it had not signed the contract, [it] did give its agreement, […] on the principle and on the terms of his authorization to use the song« .

However, since the company did not formally sign the agreement, it remains questionable to consider that consent has been given and that the agreement has been formed, and this is what led to a long dispute between the producers of the phonogram and the film.

Thus, although the formalism of the Intellectual Property Code is not applied to assignees and subcontractors, the establishment of a written contract in any form whatsoever remains essential to prove the existence and extent of copyright assignments in their favour and to assert their rights.

To fully understand the formalism of copyright assignments we developed above, it is strongly recommended to consult a specialized lawyer, who can help you defend your rights or draft and negotiate their assignments to third-party.