1709 Blog: for all the copyright community

Tuesday, 4 December 2012

Transferring a Copyright Interest Under French Law

A ruling by the French Cour de cassation handed down on May 16th last(see here) provides the occasion to explain some fundamental principles applicable to the transfer of copyright interests under French law.  (The distinction between an assignment and a license is not well-recognized in French copyright law.  What matters is the intent to transfer or convey some copyright interest or prerogative.)

A photographer assigned (or licensed) his rights in a picture with a view to creating a poster incorporating his original photographic work.  He subsequently discovered that the poster had been reproduced on a blog without his consent and brought legal proceedings aganinst the blog's author.

The trial judge held that his action was inadmissible inasmuch as the poster was a derivative work (oeuvre composite) and he had authorized the use of his photographic work for the creation thereof.

The Cour de cassation reversed, holding that the trial court had failed to verify whether the initial assignment/license covered the reproduction of the poster by a third party to illustrate a web site or blog.

The Cour de cassation's reasoning is clearly sound and is based on two cardinal principles of French copyright law:

- firstly (enshrined in Section L.131-3 of the Intellectual Property Code) that any transmission or transfer (whether charcaterized as an assignment or a license) of a copyright interest is subject to the requirement that each right be mentioned separately and that the scope thereof be precisely delineated as to its extent, purpose, place and term;

- secondly (enshrined in Section L.113-4 of the Intellectual Property Code), that any use of a derivative work in which a pre-existing work is embodied is subject to the rights of the author of such pre-existing work.

On a procedural note, it is interesting to point out that the Cour de cassation was ruling on a direct appeal (on matters of law only) from a trial judgment (bypassing an appellate court), a relatively rare phenomenon.

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