Thursday 22 February 2018

French Cour de cassation Ruling on Musical Performers' Rights In Audio-Visual Works


                                                                I've changed my mind

On February 16th last, the French Cour de cassation handed down an important ruling relating to performers' rights in the audio-visual sector.

The case involved the rights of musical performers whose performances are subsequently used in audio-visual works.  In this case, the performances were recorded in a studio (not filmed) and then incorporated into the audio-visual work that was then televised.  The studio recording took place in the legal framework of a "feuille de présence" made available by the producer, i.e. each performer signed an attendance sheet that specified that the recording was intended to be used as the soundtrack of an audio-visual work

Some years later, the audiovisual work, including the sound recordings, was marketed as DVDs by the producer.

Taking the position that the marketing of these DVDs required a fresh authorization, SPEDIDAM (a CMO representing performers) brought legal proceedings against the producer.

The trial court held that the issue was to be resolved in light of Section L.212-4 IPC which provides as follows:

"The signature of a contract between a performer and a producer for the production of an audio-visual work constitutes authorization to fix, reproduce and publicly communicate the performance.
Such a conrtact specifies a distinct remuneration for each means of exploitation of the work."

This statutory provision creating a legal presumption in favour of the producer is to be contrasted with Section L.212-3 IPC which provides that the perfomer's authorization is required for such acts with respect to a performer's performance.  SPEDIDAM was arguing that Section L.212-3 IPC (not Section L.212-4 IPC) was applicable.

This trial court's decision was upheld on appeal.  The appellate court took the position that the signature of the attendance sheet was sufficient to constitute an audio-visual production contract and thus make Section L.212-4 IPC applicable (i.e., the presumption applied such that the producer did not require a separate authorization for the DVDs).  For the court, it did not matter that the performances were purely audio, provided that they were made with a view to being incorporated in an audio-visual work.

This positon was initially rejected by the  Cour de cassation in its ruling of 2013.  It held that the attendance sheet could not be characterized as an audio-vusal production contract given that the resultant recording was entirely separable from the audio-visual work.

In accordance with French procedural law, the case was then sent back to a different appellate court which resisted the solution dictated by the Cour de cassation and, like the other lower courts, again held that Section L.212-4 IPC applied.

In its recent ruling, the  Cour de cassation affirmed the appellate ruling and thereby reversed its own 2013 position.  It agreed with the lower courts that the attendance sheet - which clealry indicated the intended use of the sound recording as part of the audio-visual work - constituted an audio-visual production contract within the meaning of Section L.212-4 IPC such that no other authorization was required in order for the producer to market the DVDs.

Link to 2018 ruling here

Link to 2013 ruling here

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