Contrefaçon de synopsis
Sébastien Lachaussée & Elisa Martin-Winkel

Sébastien Lachaussée & Elisa Martin-Winkel

Counterfeiting of synopsis

The development phase of an audiovisual project is crucial and can last for a long period of time. It involves the drawing up of several literary documents, more or less detailed: pitch, synopsis, bibles etc. which are required to circulate.

In this context, it is essential for authors and producers to ensure the legal protection of their projects and to oppose the resumption of their works by third parties.

In order to better understand the protection granted to such preparatory documents, it is necessary to recall a French fundamental principle in matters of intellectual property according to which a free flow of ideas is encouraged and solely the shaping of such ideas is a protected work.

Thus, a simple idea launched in a discussion or in a short written document will not be a work under French IP law and mere common points between two audio-visual projects do not necessarily characterize a counterfeiting act.

When it is possible to think of a counterfeit of a project, it is necessary for its rights holder to establish both that the preparatory document is indeed a protected work and that there is an actual counterfeit of such document.

The understanding of these documents by French judges will differ depending on whether they are drafted for cinematographic or audiovisual works.

  • Difficult protection of preparatory documents for cinematographic works

Current French case law is generally strict when it comes to granting the status of protected work to preparatory documents. Indeed, the refusal to protect general ideas leads to distinguish the « pitches » quickly describing a plot from documents developing real artistic intentions pertaining to the stage directions, cutting, dialogues etc.

Thus the sole idea of a short film in which the main character is looking for an anonymous person whose photograph she finds in a public photo booth, was not considered to be a protected work and « Amélie » is therefore not an infringement of such idea.

Likewise, a screenplay idea about a character’s passion for boxing and the effects of the French/Algerian war on a man is a common theme that can be the subject of any movie without being a counterfeit of such a screenplay idea.

More recently, the request of the producer of the 90s French feature film « Les collègues » to sanction the counterfeiting of such work by a new French movie entitled « Les seigneurs » was also declared inadmissible as its request was based solely on general elements of the plot and characters. The court considered that such description alone did not make it possible to characterize the originality of an audiovisual work.

A last example can be exposed regarding the movie « Hollywoo », in this case law, although many points in common were noted by the judges between an earlier synopsis and the film, the latter chose to qualify all of the elements included as « a common non-protectable theme ».

The decision is rather harsh as it could be argued that said elements are more developed than a simple idea, as they focus on defining not only the characters but also the narrative development of the story.

As for audiovisual series and animation series or movies, case law is more nuanced and more favorable to the authors.

  • Recognized protection of audio-visual synopsis and bibles

French case law admitted the protection under French IP law of TV shows’ synopsis and bible on several occasions.

However, judges are prompt to recall that a synopsis must be both sufficiently detailed and genuinely original. In this sense, a synopsis resuming of a « classic scheme intended to arouse the intellectual curiosity of children, by implementing well known methods » does not constitute an original work.

The French Court of Cassation also judged that a document entitled « synopsis » but solely composed of a summary presentation of a TV documentary by detailing the chronology of historical events, is not original. On this occasion, judges added that « the determination of the authorship of a protected work is exclusively a matter of law » regardless of the declarations made to collective management organizations.

Protection of audio-visual « bibles » is widely recognized to the extent that they precisely establish an artistic framework for the picture or series, characterizing the characters, establishing the settings, the narrative structure, etc.

As early as 1992, judges admitted the status of authors for people who wrote a guide to be respected when making the French TV show « Voisins Voisines ».

In the same sense for animated works, it was considered that a bible was an original work as  » it defines the characteristics of an original audiovisual series »

However, the action for infringement against the French series « Les Lapins Crétins » was rejected because the elements included « present similarities only because they borrow from the common background of the cartoon or comic strip universe« .

  • General conditions to benefit from French IP law production during development stages

The protection of both preparatory documents of a feature film, a series or any audiovisual work, implies that they are sufficiently shaped and detailed. The content must go beyond the mere idea or repetitions of classical figures and focus on establishing the artistic identity of a project, the precise definition of its characters, its narrative arch etc.

Beyond the protection of the primary work, it will be necessary to demonstrate the counterfeiting of it by the secondary work and that the ressemblances do not rely on simple ideas or general themes.

Also, once an infringement action is considered, a case-by-case study is imperative: a first analysis must be made to establish whether the elements in question are protected by the French IP law. If the originality and protection of the primary works seems to be established, a second analysis must be carried out in order to genuinely compare both works.

Finally, it should be noted that to defend his rights, the applicant must provide proof of the anteriority of the elements he wishes to see protected. This is why it is widely advised to officially register documents pertaining to projects being developed. It is notably possible to do so thanks to collective management organizations offering this service.

 In a positive manner, the French Court of Cassation clarified that the applicant does not have to establish that the infringing third party had access to his work but solely the anteriority.

 In view of the above, prior initiating any action for copyright infringement, it is necessary to carry out a study in concreto of the characteristics of each project. To execute such analysis, it is wise to seek advice from a specialist lawyer who will bring a neutral and experienced perspective in order to best advise the authors or producer of the primary work.

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