Clarification des droits : une étape nécessaire
Sébastien Lachaussée & Elisa Martin-Winkel

Sébastien Lachaussée & Elisa Martin-Winkel

Rights clearance : a necessary step for audiovisual production

Beyond the acquisition of the rights of scriptwriters and directors or audiovisual or cinematographic adaptation rights, the production and exploitation of a picture implies to clarify the rights of all elements included in the movie.

It is therefore essential to determine all of the elements included in the film that are protected by copyright or any other rights. It is easy here to think about the music used in the film, but many other elements must be considered which we will detail below.

  • Image and privacy rights

French and European legal systems clearly establish the right of individuals to privacy and to the attributes of their personality (image, voice etc.).

Accordingly, the rights of all persons represented or heard in a film must be carefully considered notably within the framework of production of documentary films, but also within the framework of biographical, historical fictions or more generally adapted from real facts. It will be necessary to conclude with these people assignment agreement pertaining to their personality attributes, allowing the exploitation of the film in which they appear.

De manière plus large, il est nécessaire de considérer le droit à la vie privée des personnes représentées, lequel est More broadly, it is necessary to consider the right to privacy of the persons represented, which is also guaranteed by Article 9 of the French Civil Code and article 8 of the European Convention on Human Rights.

It is settled case law that invasion of privacy requires that the persons in question are alive, identified or identifiable.

In this respect, the notoriety of people has a great influence. Notoriety will indeed facilitate identification, including those of secondary characters, regardless of the possible modification of their names.

The right to privacy must be put in perspective with other fundamental rights such as the right to information and freedom of expression, although this is mainly applicable with documentaries.

Indeed, French Court of Cassation considers that « respect of privacy is imposed more forcefully on the author of fictional work than on a journalist fulfilling his mission of information » (Cass. 1st civ. 9 July 2003, Chandernagor and Figaro c / Vallet, Legraverend). Also, in the context of a fictional film, it is difficult to hope that the right to privacy will be excluded.

Finally, case law already added temperament to privacy right in particular when the facts in question have been previously disclosed. However, this applies on a case-by-case basis, and more particularly in the context of public facts, which do not relate to the privacy of individuals. An analysis is required here in view of the specificities of each project.

It will be necessary to determine the people whose authorization is required, the measures to take in order to avoid a risk of confusion between real and fictional facts, or the need not to integrate certain characters or facts into the film.

  • Documentary sources and archives

When developing and writing a screenplay, different sources can be used, including books and news articles.

It is necessary to be cautious when resorting to literary sources. Jurisprudence regularly blame authors who exploited original characteristic elements of a work which they used to make their own creation, including in the context of biographical works.

In cinematographic matters, in the case of the scenario for the French film « Séraphine », French judges established that in « nine specific cases for which, in addition to the recovery of biographical elements invented by Alain Vircondelet, there is a similarity in the formulation used, sometimes verbatim, which exclude the simple reminiscence  » and to add that » by reproducing nine passages of this work in the first version of the scenario of the film without prior authorization, the company TS Productions and Mr. Martin Provost committed counterfeiting acts ”.

On the other hand, case law constantly pointed out that a use of historical elements is lawful, under appreciable conditions depending on the individual cases. This supposes to check the use of elements of formatting specific to the pre-existing literary work.

It is thus useful to analyze in detail the main documentary sources used and the scenario of the film, in order to determine in concreto the existing risks in terms of counterfeiting and the necessity to obtain the corresponding rights or to modify the scenario accordingly.

Finally, it should be noted that , although old archive image are not necessarily free of rights. It is therefore mandatory to carry out a meticulous check and to look fot the possible rightholders of these images or films (authors, producers, distributors etc.). Their use is subject, where appropriate, to their prior authorization and an assignment of rights must be negotiated.

  • Use of pre-existing works

Article L. 122-1 of the French intellectual property code makes it very clear that the exploitation right of the author includes the representation and reproduction rights. Also, except to meet the exceptions of such intellectual property code, the representation or reproduction of a work requires the authorization of its author.

One spontaneously thinks of musical works, which will require synchronization agreements, but we must also consider plastic and graphic works.

On this subject, French jurisprudence established a famous exception; the « théorie de l’accessoire » (theory of the accessory) which makes it possible to represent a work as long as it is not represented for itself but solely constitutes an element of decoration or background (Paris, 12 Sept. 2008). However, the case law remains severe with regard to the application of such exception.

It is therefore advisable to study on a case-by-case basis which work may benefit from the exception, which is never fully acquired. Otherwise, it will be a require to obtain the authorization of the rights holders for the use of their works or to renounce to the use of such work.

It should also be highlighted that « recreating » paintings, photographs or film constitutes a reproduction within the meaning of the French intellectual property code and therefore constitutes forgery in lack of agreement from the rights holders. If it is possible to resort to paint or take photographs « in the manner of » , the new work must be clearly distinguished from existing works and it requires to be extremely careful.

Finally, if the panorama exception, applying to works on the public domain, entered into force and caused a lot of discussion, it is reserved for individuals and therefore does not apply in the area of audiovisual and cinematographic production . We can, however, quickly consider the French exemption for brief quotations.

  • Exemption for brief quotation

The exception of analysis and short quotation as established by article L. 122-5 of the French Code of intellectual property requires fulfilling some conditions.

It is first of all imperative to understand that this exception soes not apply where a work is integrally reproduced , regardless of the size of such reproduction. For the latter, a producer shall consider the development carried out above for the integration of pre-existing works.

In addition, the quotation shall the condition of brevity of the quoted extract and this with regard to both the quoted work and the quoting work (in this case the film or audiovisual work).

It is for this reason that the exception of short quotation is very difficult to apply in matters of musical works. It can, however, be applied for video exerpts, in particular for their inclusion in documentaries.

Indeed, the brief quotation is lawful if it is justified by the critical, polemical, educational, scientific or informative nature of the work in which it is quoted. In this sense, the production of a documentary seems to meet the stated condition, while this will be more difficult or impossible in the context of a fictional work.

In a general manner, a case-by-case study is imperative to assess the brevity of the citation as the purpose of it.

In view of the above developments, in order to avoid any unnecessary risk, the use of pre-existing works requires a thorough study of the characteristics of the project in concreto and, where appropriate, to arbitrate between the acquisition of the corresponding necessary rights or the modification of the project in order to avoid to clarify such rights – if possible. To carry out such analysis and establish teh relevant contracts, it is therefore judicious to take advice from a specialized lawyer in order to study the characteristics of the project and best meet the needs of production.

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