Assignment of copyrights
The transfer of copyright is an agreement by which the copyright owner, called the assignor, transfers the ownership of his rights to a third party, called the assignee. The latter will then be vested with all the rights relating to the creation that has been assigned to him, with the exception of the author’s moral rights (see below).
The transfer of copyright is valid only if the conditions for the protection of the work are met: namely, the work is original in that it bears the imprint of the personality of its creator.
Thus, only a natural person can be a copyright owner, which excludes legal persons who do not have the capacity to enter into an agreement of assignment of a creation.
In France, a country that is particularly protective of intellectual works, authors have exclusive rights, subject to originality, from the time of their creation and throughout their lives, without having to obtain registration of their works, as is the case for a trademark or a design.
However, it is recommended to have the existence of his works established by a bailiff, such a statement allowing to give a certain date to the creation of the work (proof of the anteriority of the work to a possible infringement of third parties) and to determine its content (proof of the materiality of the work).
A Soleau envelope deposit is also irrefutable proof of the date of the rights, if they are established.
If the proof of the quality of author is free, the bailiff’s report will thus allow the author to defend more easily his exclusive right that he holds on his work facing the diffusion of his works to the public for which he would not have given his authorization.
- The economic rights of the author, that is to say all the rights of exploitation of the work in any form whatsoever (right of reproduction, right of representation, right of continuation, right of diffusion etc…).
These rights are limited in time, the principle being a duration of 70 years after the death of the author.
Such rights allow the author to oppose any copy, use or sale of his work to the public without his prior authorization.
- Moral rights, which are perpetual, imprescriptible and inalienable and include the right to respect for the author’s name and status, as well as the right to respect for the work.
The transfer of copyright must be in writing, as it is rarely automatic.
It must therefore comply with a certain formalism laid down by Article L.131-3 of the Intellectual Property Code, which states that :
“The transfer of the author’s rights shall be subject to the condition that each of the assigned rights is mentioned separately in the act of transfer and that the field of exploitation of the assigned rights is delimited as to its extent and destination, as to the place and as to the duration.”
However, there are some exceptions, particularly in the case of audiovisual production agreements or advertising agreements.
In addition to these exceptions, in terms of software, it is provided that unless otherwise provided for in the articles of association or stipulations, the economic rights on the software and its documentation created by one or more employees in the performance of their duties or according to the instructions of their employer are vested in the employer who is the only one entitled to exercise them (Article L.113-9 of the Intellectual Property Code).
Under these conditions, and apart from certain exceptions, the client who has paid the agreed sum does not automatically become the assignee of the rights.
Only an express assignment clause allows him to be invested with the copyright.
Thus, the agreement relating to the transfer of copyrights must mention in particular:
- Each right transferred must be mentioned separately (reproduction, representation, etc..);
- The duration of the assignment must be specified;
- Geographical area of the assignment;
- Areas of operation;
- The various supports of exploitation of the creation.
The assignment of copyright is frequently concluded for a fee but can also be provided for free in certain cases.
Therefore, there are several types of agreements for the transfer of copyrights, including :
- Assignment on a product signed with stylists, freelancers, collection directors;
- Assignment on a logo;
- Assignment for photographs ;
- Assignment on a store concept ;
The transfer by the author of his rights on his work is strictly framed by the content of the agreement concluded. It can be total or partial.
The transfer will concern the transferable rights and in particular the economic rights of the work, since the moral rights are non-transferable and any clause to the contrary would be void.
It is recommended to be assisted by a counselor (IPC) or lawyers specialized in literary and artistic property who will bring you an exhaustive legal support adapted to your needs.
A copyright assignment operation requires the mobilization of many complex notions, based on various legal documents (agreements, certificates, attestations, evaluation of rights, etc.).
Update on the prohibition of the global transfer of future works
The law states that: “The global transfer of future works is void” (article L. 131-1 of the Intellectual Property Code).
Originally, the legislator wanted to protect the author against the temptation to quickly and uninformedly transfer rights to works that he had not yet created.
Since then, it has been regularly considered that these provisions create an imbalance to the detriment of the operator and that they are generally not appropriate.
According to article L. 111-1, paragraph 3 of the Intellectual Property Code, the employment agreement does not entail the transfer to the employer of the employee’s copyrights on the creations made within the framework of his employment agreement.
Thus, within the framework of work agreements or freelance agreements, a commitment to transfer the rights once the works have been produced is regularly provided for with the draft transfer agreement attached.
However, this implies that the authors must sign the transfer of the works once they have been produced.
Update on SACEM’s role in musical works
The Société des Auteurs, Compositeurs et Éditeurs de Musique (SACEM), founded in 1851, has as its main mission to collect royalties on musical works and to pay them to authors, composers and publishers.
Update on neighbouring rights
Neighboring rights are exclusive rights attributed to performers, producers of phonograms and videograms, audiovisual communication companies, publishing companies and press agencies.
They are exercised independently of the copyright on the works.
The Bouchara Law firm assists you in particular in :
- Negotiation and drafting of agreements for the transfer of copyrights;
- Valuation of the securities sold;
- Subsequent formalities;
- The management of your copyrights (in particular the drafting of agreements of exploitation, license, negotiations concerning the remuneration etc.);
- The filing of your intellectual property titles (trademarks, designs).