In France, copyright is an intellectual property right (a branch of literary and artistic property) which arises from the sole fact of the creation of a work of the mind, subject to its originality, and which belongs to its author.
The French law confers a particularly strong protection to the author on his creation, notably because it is not necessary for the author to obtain the registration of his work in order to claim his private rights (contrary to a For example, a trademark must be registered with an Office in order to be validly claimed by its owner.)
Copyright includes two categories of prerogatives:
- The economic rights, that is to say all the rights of exploitation of the work in any form whatsoever (reproduction right, representation right, resale right).
These rights are limited in time, the principle being a duration of 70 years after the death of the author.
- Moral rights, which are perpetual, imprescriptible and inalienable and which include the right to respect for the author’s name and status, as well as the right to respect for the work.
Under this protection, the author is entitled to exercise very close control over the exploitation of his works in any capacity whatsoever, including their distribution and communication to the public, or their reproduction in whole or in part.
The use of a work protected by copyright by a third party without the prior authorization of its author exposes him to the risk of infringement action.
What are the conditions of access to protection?
It results from the sole fact of the creation of an original work.
Therefore, in practice, in order to be able to invoke copyright, it is important to establish the creation and originality of a work of the mind:
- The notion of a work of the mind
This notion is not defined by the texts but the Code of Intellectual Property lists, in the article L.112-2, in a non-exhaustive way, the intellectual works eligible for copyright protection (books and other writings, dramatic works, choreographic works, drawings, musical works, works of applied arts, plans, software, clothing creations…).
Moreover, article L.112-1 of the Intellectual Property Code specifies that ” The provisions of this code protect the rights of authors over all works of the mind, whatever their genre, form of expression, merit or purpose “.
It can be a classical work of art (painting, sculpture etc…) or a digital work(NFT).
- The condition of originality
This condition is not defined in the law either, but it is considered by the constant jurisprudence as being the imprint of the author ‘s personality on the work and especially as one of the essential conditions to access to copyright protection.
In practice, originality is assessed by judges on a case-by-case basis.
It is settled case law that the originality of a work must be assessed as a whole with regard to the various elements that make it up, taken in combination (Cass. civ.1ère, September 12, 2018, n°17-18.390; Cour d’appel de Paris, July 6, 2018, n°17-07.613).
Who owns the rights?
- The principle of ownership for the sole benefit of the natural person author
The principle is that copyright belongs exclusively to the author, a natural person, of the work of the mind.
Article L.113-1 of the Intellectual Property Code states that “the quality of author belongs, unless proven otherwise, to the person or persons under whose name the work is disclosed”.
If a simple presumption of authorship is established by the text, it can be reversed in case of conflict.
It will then be up to the person who claims to be the author of the work to prove this quality by any means.
Also, notwithstanding the absence of formality to access copyright protection, it is to establish upstream dated evidence of the creation of a work. Depending on the case: bailiff’s report , deposit via a time-stamping system, Soleau envelope, etc.
- Presumption of ownership for the benefit of legal persons
In the absence of a claim by the authors, the jurisprudence considers in a constant way that the exploitation of the work by a legal person under its name makes presume, with regard to the third party sought for infringement, that this person is the owner of the author’s intangible property right on the work (Cass. civ. 1ère, November 15, 2010, n° 09-66.160; Cass. civ. 1ère, January 28, 2010, n° 09-11.390).
Thus, a legal entity that exploits a work under its name in an unequivocal manner is presumed to own the economic rights in that work.
It is also common knowledge that this presumption of ownership is a simple presumption that can be overturned by the defendant to the infringement action (TGI Paris, April 4, 2014, n°11-09.489; TGI Paris , November 26, 2010 n°09-01.522):
“Nevertheless, this presumption of ownership of rights, which is a simple presumption and which can be rebutted by the defendant in the infringement action, does not exempt the party who intends to rely on it from proving disclosure or of a specific creation to a certain date and it must establish the correspondence between the disclosed product and the one for which ownership is claimed. “
Thus, in order to benefit from the presumption of ownership, the legal entity claiming it must
- Identify with precision the work it claims and establish that the characteristics of the work it exploits under its name are identical to those it claims;
- Prove the date of creation of the work or its first disclosure.
- Special cases of works created by several authors
Articles L.113-2 and following of the Intellectual Property Code provide three special regimes for works created by several authors:
- The collaborative work, to the creation of which several natural persons have contributed: it is the common property of all the co-authors.
- The composite work, which is the new work to which is incorporated a pre-existing work without the collaboration of the author of the latter: it is the property of the author who made it, subject to the rights of the author of the pre-existing work.
- The collective work, which is the one created on the initiative of a physical or moral person who publishes it, and divulges it under his direction and his name and in which the personal contribution of the various authors taking part in its elaboration merges in the whole in view of which it is conceived, without it being possible to attribute to each one of them a distinct right on the realized whole: it is, except contrary proof, the property of the physical or moral person under the name of which it is revealed.
Point of law
Article L.111-1 of the Intellectual Property Code, paragraphs 1 and 2 provides that :
” The author of a work of the mind enjoys, by the sole fact of its creation, an exclusive intangible property right that is enforceable against all.
This right includes attributes of an intellectual and moral nature as well as attributes of a patrimonial nature (…)”.
Point of jurisprudence
It has been consistently accepted that originality must be established by the person claiming the copyright:
” It is up to [aux demandeurs] who claim copyright protection for works whose originality is disputed to specify the combination of characteristic elements claimed and in what way it bears the stamp of their personality. “(Cour d’appel de Paris, February1 , 2022, n°19-00.012)
Point of jurisprudence
In terms of creation by an employee, case law is constant and considers that ” the existence of an employment contract is not exclusive of the protection by the copyright and the employee is invested with the rights of intangible property instituted for the benefit of the author as long as he has made a creative work by preserving his freedom and without the aesthetic choices made having been imposed to him by the employer. “(Cour d’appel de Paris, March 5, 2021, No. 19-17.254).
Point of jurisprudence
The drawings of the famous designer Castelbajac had been used on chocolate boxes although he had expressly opposed it. The company that initiated this campaign, which was condemned in the first instance, appealed on the grounds that it had not been proven that it was the author.
The “Cour d’appel de Paris” held that the creator :
” justifies the disclosure under his name and on the dates mentioned of the following works, clearly identified:
- Cover of Stylist magazine, which is signed by jean-Charles C and whose date is certain,
- Creation of a postage stamp signed by Jean Charles C (…)
- A drawing featured on the cover of VICTOIRE magazine dated (…) posted on Instagram,
- The fresco drawn on the facade of the South Terminal of Paris-Orly airport “
The Court of Appeal adds that “if some of his drawings or frescoes do not indeed bear the signature of Jean-Charles C, the respondent nevertheless unequivocally justifies that they have been disclosed under his name”. (Cour d’appel de Paris, Sept. 7, 2021, n°19-13.325).
The Bouchara Law firm assists you in particular in :
- Management and promotion of your creations and copyrights;
- The protection and defense of your copyrights;
- Drafting of license agreements or assignment of copyrights;
- The drafting of intellectual property rights assignment clauses in the context of various contracts (employment contract, assignment contract…).