Update February 2022 – initial publication September 20, 2018 at 4:19 p.m.

The challenge :

Is it possible for the purchaser of a creation, work, a work of the mind (cinema, photography, music, montages, video clips, cultural painting, graphics, texts, computer developments, etc.), to protect itself effectively against claims based on non-respect of copyright?

A contractor who orders intellectual services will often seek to have extensive copyright on these services, precisely in order to protect himself against claims from his service provider or from third parties who have not intervened in the contract.

Beyond case law or international texts, the intellectual property code recalls the applicable principles.

The principles : 

The prohibition of the global transfer of future works

A first principle according to which the global transfer of future works is null, will prohibit him from arrogating to himself the whole of the future production of a service provider or a creator.

Article L131-1 of the Intellectual Property Code:

“The aggregate assignment of future works is void.”

In his work order, or in the employment contract with the person whose creation he intends to exploit, he must therefore be as precise as possible in what he is ordering and provide for an assignment of rights once the work has been created, delivery or during payment, for example.

Other rules will encourage him to describe precisely the rights he intends to acquire, determining their territorial scope, their duration, the uses of the work that are planned, on what media, for what audience. 

Article L131-2 

The performance, publishing and audiovisual production contracts defined in this title must be recorded in writing. The same applies to free execution authorizations.

Contracts by which copyright is transferred must be evidenced in writing.

In all other cases, the provisions of Articles 1359 to 1362 of the Civil Code are applicable.

Article L131-3

The transfer of the copyright is subject to the condition that each of the rights transferred is the subject of a separate mention in the deed of transfer and that the field of exploitation of the rights transferred is delimited as to its extent and to its destination, as to place and as to duration.

When special circumstances so require, the contract may be validly concluded by exchange of telegrams, provided that the field of exploitation of the rights transferred is delimited in accordance with the terms of the first paragraph of this article.

Assignments relating to audiovisual adaptation rights must be the subject of a written contract in a document separate from the contract relating to the actual edition of the printed work.

The beneficiary of the transfer undertakes by this contract to seek an exploitation of the transferred right in accordance with the practices of the profession and to pay the author, in the event of adaptation, a remuneration proportional to the receipts collected.

Will he be safe from claims regarding these rights? 

Contact a lawyer specializing in intellectual property law in Paris

The inalienable right of the author to claim authorship of his work

The author is (always) a natural person and differs from the “copyright holder”, in that the latter can be someone other than the author, be a natural or legal person, and be invested with the economic rights of the author, that is to say the rights of exploitation of the work, by acquisition of these rights.

But the author nevertheless remains the author and as such has inalienable prerogatives (the “moral right” of the author), which he can assert in principle. 

In practice, the defense of this principle can be arduous and limited to ultimately quite exceptional cases when the author considers that he is the victim of abuse by the purchaser of the exploitation rights.

This is the meaning of the following provisions:

Article L111-1 of the Intellectual Property Code:

The author of a work of the mind enjoys on this work, by the mere fact of its creation, an exclusive intangible property right and enforceable against all.

This right includes intellectual and moral attributes as well as patrimonial attributes, which are determined by books I and III of this code.

The existence or conclusion of a work or service contract by the author of an intellectual work does not derogate from the enjoyment of the right recognized by the first paragraph, subject to the exceptions provided for in this code. Subject to the same reservations, there is also no derogation from the enjoyment of this same right when the author of the intellectual work is an agent of the State, of a local authority, of an establishment of an administrative nature, an independent administrative authority endowed with legal personality or the Banque de France.

The provisions of Articles L. 121-7-1 and L. 131-3-1 to L. 131-3-3 do not apply to agents who are authors of works whose disclosure is not subject, by virtue of their statute or the rules which govern their functions, with no prior control of the hierarchical authority.

Article L121-1 of the Intellectual Property Code:

The author enjoys the right to respect for his name, his capacity and his work.

This right is attached to his person.

It is perpetual, inalienable and imprescriptible.

It is transmissible mortis causa to the heirs of the author.

The exercise may be conferred on a third party by virtue of testamentary dispositions.

The author may assign some of his rights by contract, he may even renounce seeing his name appear and refrain from any public disclosure, for the benefit of another person, natural or legal, in the context of a so-called work. “collective” to which several authors have contributed voluntarily. 

The work will then be the property of the person under whose name it will be disclosed: for example the name of the entrepreneur instigator of the project, who will be qualified not as “author” but as “holder of copyright ” and “owner”.

Article L113-2 of the Intellectual Property Code, paragraph 3:

Is said to be collective the work created on the initiative of a natural or legal person who publishes it, publishes it and divulges it under his direction and his name and in which the personal contribution of the various authors participating in its elaboration is based on the whole for which it was designed, without it being possible to attribute to each of them a separate right to the whole produced.

Article L113-5 of the Intellectual Property Code:

The collective work is, unless proven otherwise, the property of the natural or legal person under whose name it is disclosed.

This person is vested with the rights of the author.

The author will therefore be able, by proving the predominance of his creation in a work that is nevertheless “collective”, to claim ownership of his contribution and specific profits.

The right for the author to withdraw his work

The author can even withdraw his work from the market and from circulation, despite the transfer of the exploitation right, with the notable exception of the author of software. However, this is an exceptional case and takes place against compensation. This may usefully be provided for in the contract.

 This is the meaning of article L121-4 of the intellectual property code.

Article L121-4 of the Intellectual Property Code:

Notwithstanding the assignment of his exploitation right, the author, even after the publication of his work, enjoys a right of reconsideration or withdrawal vis-à-vis the assignee. However, he can only exercise this right on condition of compensating the assignee beforehand for the damage that this repentance or withdrawal may cause him. When, after exercising his right of reconsideration or withdrawal, the author decides to have his work published, he is bound to offer his exploitation rights as a matter of priority to the assignee he had originally chosen and under the conditions originally determined.

The right of the author to proportional remuneration

The principle of proportional remuneration gives the author the possibility of contesting the price he receives.

It allows him to impose a proportional remuneration in a contract which would abusively limit his remuneration in spite of the resounding success of his work, or in the case of exploitations which would not have been really envisaged in the contract.

Article L131-4 of the Intellectual Property Code:

The assignment by the author of his rights to his work may be total or partial. It must include, for the benefit of the author, a proportional participation in the receipts from the sale or exploitation.

However, the author's remuneration may be assessed on a flat-rate basis in the following cases:

1° The basis for calculating the proportional participation cannot be practically determined;

2° The means of controlling the application of participation are lacking;

3° The cost of the calculation and control operations would be out of proportion to the results to be achieved;

4° The nature or the conditions of the exploitation make it impossible to apply the rule of proportional remuneration, either that the contribution of the author does not constitute one of the essential elements of the intellectual creation of the work, either that the use of the work is only of an incidental nature in relation to the object exploited;

5° In the event of transfer of rights relating to software;

6° In the other cases provided for in this code.

The conversion between the parties, at the request of the author, of the rights resulting from the contracts in force into fixed annuities for durations to be determined between the parties is also lawful.

Article L131-6 of the Intellectual Property Code:

The clause of an assignment which tends to confer the right to exploit the work in a form that is not foreseeable or not foreseen at the date of the contract must be express and stipulate a correlative participation in the profits of exploitation.

Update of 10 Dec. 2022: copyright and platforms, what remuneration?

Content uploaded then downloaded or streamed, via engine or platform, is financed by advertising or data, danum directive 2019 790, article 17
Unlawful source…no private copy exception
ISP l336-2 CPI
Host Engines, art 14 dir e-commerce, com to the public … very favorable jurisp
Advertisers ordered to avoid pirate sites
Contributory platform …dir e-commerce and dir dt of author…host! No lasting deletion, ... denunciation and protest of the authors ... commissioned cspla ...
Art 17 dir 790, in 2019, transposition Fra …l137-1…CPI ..def of platforms…
Regime.. return of responsibility, qd active role, dt conclude licenses, which licit the initial upload, and the download, with exemption: made best efforts, …and dt prevent reappearance! Non-beneficiary Pirate Sites.
Small platforms…resp lightened…
Implementation of automatic filters…PB of freedom of expression. … guidance, recourse Poland…

The tech...
-Numerical hash.. file number
-Watermarking… watermarking, detection tool PB alteration (photo
-Fingerprinting, above all…digital fingerprint of the file, simplified representations of the video, match database of fingerprints and uploading…refusal or acceptance…cf market solutions, we can delegate;
- File metadata, often overwritten by habit of cleaning memory (photo)

CE 15 Nov. 2022, n° 454477:

Adaptations specific to certain contracts

Adaptations are made by law depending on the type of contract envisaged.

Thus the author of software used for these purposes sees his rights ceded by law to the employer (art.L113-9). The law deprives the software author of the right of withdrawal (L121-7).

The Intellectual Property Code provides for provisions specific to the publishing contract, the representation contract, the audiovisual production contract and the commissioning contract for advertising (with a legal assignment of certain exclusive rights), the Pledge Contract of the right to use software, works by journalists, research and referencing of plastic, graphic or photographic works of art, performers, producers, audiovisual communication companies, satellite broadcasting and cable retransmission, to database producers.

The right of the author to the integrity of his work

The so-called “composite” work is provided for by article L113-2 of the intellectual property code in its paragraph 2 according to which “Is said to be composite the new work in which a pre-existing work is incorporated without the collaboration of the author. of the latter.”, and L113-4 according to which “The composite work is the property of the author who produced it, subject to the rights of the author of the pre-existing work.”.

The purchaser of a commissioned work asks his assignor for the transfer of rights to the commissioned work, but also, logically, the transfer of rights to the pre-existing works incorporated therein, in order to be able to exploit the commissioned work without difficulty.

The purchaser, however, by retaining the rights of adaptation and arrangement, and under cover of these rights, may be tempted to use the pre-existing works as they are and to manipulate them in his own way, not in the manner of its assignor.

If one conceives that the purchaser spares, on the work delivered, rights of adaptation, translation, transformation, arrangement or reproduction, quoted by the article L122-4 of the code of the intellectual property – and in particular within the framework of a collective work – one cannot however admit that these rights allow him an autonomous exploitation of a preexisting work incorporated in the delivered work, by a kind of reverse engineering.

It is the respect of the right to the integrity of the delivered work which requires it (article L121-1 of the code of the aforementioned intellectual property).

To what extent can the purchaser protect himself against claims by third parties who have not intervened in the contract, and relating to copyright?

Can the acquirer of rights protect himself against these claims by, for example, imposing on his transferor the burden of compensating him, or redoing the work, or taking the necessary steps for a peaceful use of the work?

The search for compensation may be illusory if, at the time of the claim, the said assignor has disappeared, or if he is not solvent.

Against the purchaser, the third party may claim damages for infringement and require a cessation of operation.

The purchaser, in order to defend himself, will be tempted to invoke his good faith and to accuse his negligent transferor who would therefore have granted him more rights than he himself had on the pre-existing work.

But in terms of civil liability for infringement the argument of good faith is inoperative, which otherwise would encourage many collusions, and a rather easy purge of rights. The principle is recalled, for example, in the judgment of the Court of Cassation of July 10, 2013, appeal 12-19170 “Whereas the Court of Appeal which rightly said that good or bad faith was indifferent to the characterization, before the civil jurisdiction, of the counterfeit,”

In order to attempt to reduce the effects of these risks, the purchaser will therefore take care to provide, in his contract, for liability on the part of the assignor, and will also try to ensure that the assignor has an effective liability insurance policy.

It will also be necessary to provide for a judicial cooperation clause, in order to try to involve the transferor as well as possible in the defense of the interests of the purchaser in the event of legal threat from a third party, and to avoid disputes of the said yielding on how to defend the cause.

Counterfeiting: how to react?

Remuneration for work and payment of royalties, the issues

Judicial reversal on the rights of performers of musical works

The rights of the photographer: the intellectual property lawyer responds

NFTs and copyright

An intellectual property lawyer in Paris informs you and advises you on copyright.

See as well : Assignment of copyright

the copyright aims to protect literary works, sound, audiovisual and musical creations. It also protects graphics and fashion designs. The legal status of copyright allows protect authors and their works.

A copyright acquired without formalities. However, in the event of a dispute, it is advisable to prove the original character of the work. Il should also bring the proof of the date it was created.

You are the author of a work and wish to be advised within the framework of the copyright which applies to this one? You wish to initiate litigation proceedings for counterfeit ? Stone of Roquefeuil, lawyer specializing in intellectual property law at Paris accompanies you.

Copyright: Definition, the intellectual property lawyer assists you in qualifying

the copyright applies to any work, so it is extremely broad. It can be the work of a writer through a book, the work of a music group or a musician through a musical composition. It can also be the work of a photographer by a photograph, etc. Nevertheless, the work must present an original character and thus express the personality of its author.

the Intellectual Property Code (IPC) defined copyright, in the context of literary and artistic property. The copyright on a work confers on its author a patrimonial right and a moral right. The Intellectual Property Code (IPC) therefore provides in its articles L. 121-1 and L. 121-2, with regard to moral rights, the right of its holder to control the disclosure of the work. It also provides for a right to authorship of the work, as well as a right to respect for the work and the right of withdrawal.

Governed by the law of March 11, 1957, copyright is applied automatically from the moment the work has been produced and without any particular formality. On the other hand, the author must be able to provide proof of the originality of his work but also because he owns his work. Proof can be provided by any means, it must however be dated.

 What is the purpose of recording a work?

In the context of litigation, the recording of a work is important. The existence of a deposit or registration of the work makes it easier to prove the authorship and the date of creation of the work. Thus, the author can identify himself as the creator of a work with:

• A bailiff or a notary,
• From the National Institute of Intellectual Property (INPI),
• Of a society of collection and distribution of rights.

the copyright is often confused with copyright. Copyright protects people who invest in intellectual property. It aims to protect works first and not their authors. Copyright, on the other hand, primarily protects the creator.

Protection of your works: What is intellectual property? Intellectual property lawyer clarifies

Copyright provides the author of the work with a guarantee of ownership. The author therefore has rights in the event of authorized and unauthorized use of his creation.

Intellectual property is protected by intellectual property titles. This protection allows the holder to derive recognition or a financial advantage from his creation.

Intellectual property is distinguished by two branches:

• Literary and artistic property (copyright, neighboring rights),
• Industrial property (trademark and patent law in particular).

Article L. 111-1 of the Intellectual Property Code defines copyright in its first two paragraphs: "The author of an intellectual work enjoys this work, by the mere fact of its creation, an exclusive intangible property right enforceable against all. This right has intellectual and moral attributes. As well as heritage attributes, which are determined by Books 1^er and 3 of this code. »

In its decision no. 2006-540 DC of July 27, 2006, the Constitutional Council considered that the intellectual property rights, and in particular copyright and neighboring rights, are subject to property rights. This is one of the human rights enshrined in Article 2 of the Declaration of the Rights of Man and of the Citizen of 1789.

 Copyright grants two types of rights to the author:

Thus, copyright grants two types of rights to the author:

• Patrimonial right, which allows the right holder to receive financial compensation. This for the exploitation of his work by a third party,
• Moral right, which protects the non-economic interests of the author.

the patrimonial right lasts up to 70 years after the death of the author or after disclosure in the event that the work belongs to a legal person (association, company, etc.). In terms of property rights, the author can therefore prohibit or authorize:

• The reproduction of his work in different forms,
• The performance or representation in public of his work, for example for a musical work or a play,
• The recording of a creation, video recording of a film or music on a CD for example,
• The broadcasting of a musical work by radio, cable or satellite,
• The translation of a work into another language,
• The adaptation of a work, for example by transforming a film into a novel, or vice versa.

the moral right, on the other hand, makes it possible to claim the paternity of a work and to oppose any modification which could harm the reputation of the creator.

Patrimonial right: assign one of his patrimonial rights, be assisted by an intellectual property lawyer

Even if French law protects the original work of an author, it is possible for this author to transfer one's property rights. The author can thus by the transfer of his patrimonial right, authorize the representation or the reproduction of his work. The assignment of his rights must be formalized by an assignment contract or a publishing or reproduction contract.

A disposal agreement allows an author to assign part or all of his economic rights to one of his works, exclusively. The holder of the assigned rights can therefore act without infringement once this assignment contract has been signed by the various parties.

The Intellectual Property Code provides for certain mandatory information that must appear in an assignment contract:

• Details of the rights transferred,
• Delimitation of the scope and destination of the rights,
• Territorial delimitation of the transfer,
• The temporal delimitation of the diffusion.

In principle, remuneration proportional to the profits from the sale or exploitation of the work must be paid to the original author. The profit percentage is set freely between the author and the beneficiary of the assignment.

The drafting of a transfer contract without the support of a intellectual property lawyer can be highly damaging for the author or for the transferee of the rights. Indeed, the lawyer will be able to accompany and advise you before the signing of the contract, in order to properly realize the consequences of the transfer and the commitments made.

What are the penalties for copyright infringement? The intellectual property lawyer assists you in Paris

The author victim of plagiarism of his work can lodge a complaint and go to court. The forgery of a creation consists in reproducing a creation, with its essential characteristics, without the agreement of the original author or the holder of the rights.

The Intellectual Property Code means by counterfeiting all acts of unauthorized use of a work. In the case of a partial recovery of this one, it is assessed according to the similarities between the works. Moreover, the mere attempted infringement is not punishable.

The use of a work or its reproduction without the agreement of its author constitutes an illicit act, a counterfeiting offense. Article L. 335-2 of the Intellectual Property Code specifies that: "Any edition of writings, musical composition, drawing, painting or any other production, printed or engraved in whole or in part, in defiance of the laws and regulations relating to the property of the authors, is an infringement and any infringement is an offence. Counterfeiting in France of works published in France or abroad is punishable by three years' imprisonment and a fine of 300,000 euros. The same penalties will apply to the debit, export and import of infringing works. When the offenses provided for in this article have been committed by an organized gang, the penalties are increased to five years' imprisonment and a fine of 500,000 euros. »

The offense of counterfeiting is sanctioned by the payment of damages, the amount of which varies according to the seriousness of the attack which has been caused to the author and his work. The penalty can also be up to 3 years in prison and a fine of 300,000 euros. In civil matters, the allegation of good faith has no interest.

The title of a work is protectable in the same way as a work, the intellectual property lawyer in Paris gives you the first leads

The article of the intellectual property code provides two types of title protection: copyright and unfair competition law:

Article L112-4

The title of an intellectual work, when it presents an original character, is protected like the work itself.

No one can, even if the work is no longer protected under the terms articles L. 123-1 to L. 123-3, use this title to individualize a work of the same genre, under conditions likely to cause confusion.

The title is to be distinguished from the slogan, or the brand, which have different functions.

The name of a music group, the intellectual property lawyer in Paris answers you

If the title of a literary work is indeed a title within the meaning of the aforementioned article L112-4, what about the name of a musical group?

The name of a music group is more reminiscent of a person's name, or a corporate name. But a music group is not necessarily constituted as a "legal person" as is, for example, a commercial company which has its own legal personality, and the name of a group does not necessarily designate the whole of the work produced by the group.

The name of a music group is traditionally considered as the undivided, non-transferable and non-transferable property of its historical members. In case of conflict between these, the judge may reserve their use to those who ensure the continuity of the artistic project.

It is in itself protectable, according to the specific regime of the name, against usurpation or illicit use.

You wish to be advised by a Intellectual Property Lawyer, for advice on copyright in the context of the protection of your work? Do you want to initiate a plagiarism procedure for your work? Stone of Roquefeuil, intellectual property lawyer at Paris, you can assist and represent you in litigation following the violation of your copyrights.

Recourse to a lawyer may be necessary to benefit from advice in the protection of your interests. A intellectual property lawyer can advise you on the protection of your works by copyright.

NFTs and copyright

Get assistance from a law firm specializing in copyright:

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