In February 2024, the French Court of Cassation had the opportunity to recall that the synchronization of a song in the form of excerpts in a film does not constitute per se an infringement of the moral rights of the author.

This decision taken in a case opposing the producers of the feature film « Alibi.com » to the authors of the song « Partenaire particulier » as two excerpts of the song are part of the film’s soundtrack, gives us the opportunity to dwell on the moral rights of authors, composers and performers of musical works and the difficulties that it may raise in the context of their synchronization in audiovisual works.

Moral rights of authors, composers and performers

The French Intellectual Property Code provides for the benefit of authors, as well as performers, a moral right over their creations and performances.

Thus, an author enjoys the right to respect for his name, his quality, and his work. This right is attached to his person, perpetual, inalienable and imprescriptible. It is consequently accepted that this right is transferred to the heirs.

The performer has the same right to respect for his name, his quality, and his performance. In this regard, the legislator makes it clear that the moral rights of the performers are transferred to his heirs for the protection of the performance and memory of the deceased.

The right to respect for quality and name requires that the authors, composers, and performers of a piece of music be credited when it is exploited. In the context of original soundtrack of films, it is generally accepted that the music credits appear in the end credits, and this rises little difficulty.

On the other hand, the right to respect for the works and the performances may rise further questioning, since musical works integrated into audiovisual works are generally subject to adjustments and modification to allow their insertion in the soundtrack of the film.

Abundant case law

In the first place, as recalled by the Court of Cassation in its decision of February 28, 2024, « the use of a musical work by synchronization in the soundtrack of an audiovisual work, necessarily in the form of excerpts, cannot be regarded by itself as an infringement of the integrity of the work and the moral rights of the author or performer ».

Thus, an author or performer who invokes an infringement of his moral rights must clearly demonstrate that infringement and cannot simply argue that the work is not reproduced in its entirety.

In this case, the plaintiffs did not demonstrate « an alteration of the melody, rhythm or lyrics of the song due to the selection of excerpts produced in the soundtrack of the film », nor how the duet of the song by the actors of the film constituted disrespect of the song.  

Finally, the Court of Appeal previouslu rejected the argument that the meaning of the song had been distorted by its incorporation into a film described as vulgar by the plaintiffs, insofar as the lyrics of the song were actually based on sexual allusions and the authors had already consented to a devaluation of the work by authorizing its use in a commercial featuring the tune of the song played with a shrill flute and false notes.

The Court recalls here a previous decision taken with regard to Jean Ferrat’s song « Les petits bistrots », used as the soundtrack for the credits of a documentary on Parisian bistros which, although in excerpts, did not break the rhythm or the melody (TGI Paris, 3e ch., 26 nov. 1997 : RIDA 3/1998, p. 284).

However, certain alterations or conditions of exploitation may have characterized breaches of the integrity of musical works.

In this sense, in 1990 in a media case between Mr. Rostropovich and the film production company  of “Boris Godunov,” the court ruled that the overlay of certain noises (spitting, urine, female gasps) on the soundtrack of the opera undermined the artist’s interpretation, as they « distract the viewer’s attention » and « distort the appreciation of Rostropovich’s work ». The court, however, rejected claims based on variations in loudness,considering that these variations in volume were necessitated by media of cinema ( TGI Paris, 10 janv. 1990 : D. 1991, jurispr. p. 206, note B. Edelman).

More recently, the reproduction of a song altered by a hiss and a crackling sound on the sound of the instruments has been considered to infringe the right to respect for the performance, the judgment having even required a ban on the sale of the media under penaltye (TGI Paris, 3e ch., 3e sect., 22 mars 2006, Michèle Mercier c/ Sté Universal Music)

With regard to the cuts and selection of excerpts, it was also held that the use as a soundtrack of an excerpt lasting 1 minute and 49 seconds from a musical work lasting 8 minutes and 3 seconds, undermined the integrity of the work, because due to the cuts m « the crescendo effect specific to the genre of electronic music [is] annihilated« .

Moreover, the sole change of destination of a work may constitute an infringement of moral rights.

Thus, the judges recognized such an infringement for the use of a song by Jean Sablon, intended for a cinematographic film, and reused in a television movie, specifically as the exceptional nature of the singer’s participation in the film was mentioned (CA Paris, pôle 5, 1re ch., 1er juin 2011, Sté France-Télévision c/ PF et a. : RLDI juill. 2011, n° 2419)

In the same way, it was decided that the use of a publicity song in a video with political purposes during an election campaign, without the authorization of the performer, constituted an infringement of the right to respect for the performance, by diverting the nature of the song from its primary purpose of an commercial nature. (CA Paris, 4e ch., 25 mars 2005, n° 04/03331 : JurisData n° 2005-269259).

In view of the above, it appears that the inclusion of music in a film raises the question of the moral rights of authors and artists, beyond the mere acquisition of synchronization rights. This respect requires a contextual analysis, in view of the integrated works and the conditions of their integration and may require the advice of a law firm specialized in the context of the musical clearance of the film.