The signature by performers of the attendance sheet indicating that the recording is intended to be used for the soundtrack of an audiovisual work constitutes a contract within the meaning of article L.212-4 of the French Intellectual Property Code (IPC), implying the assignment of the rights related to copyright to the producer.
In a leading case dated 16 February 2018, the Assemblée Plénière of the Court de Cassation (French Supreme Court) took the opportunity to decide on a long-standing legal debate regarding the rights system for musicians and performers participating in an audiovisual work concerning the interaction between articles L.212-3 and L.212-4 of the IPC (Cass. Plen., 16 February 2018, no. 16-14.292).
As a reminder, article L.212-3 requires a written and special authorisation to be obtained from the performer for the fixation, reproduction and communication to the public of his/her performance. Nevertheless, to ensure the legal security of audiovisual producers, a presumption of assignment of rights is specified for the benefit of the producer of an audiovisual work by article L.212-4 of the same Code: “The signature of a contract between a performer and a producer for the production of an audiovisual work shall imply the authorization to fix, reproduce and communicate to the public the performance of the performer.”
The case at issue was between Spedidam (a company responsible for collecting and distributing performers’ rights) and INA (the French national audiovisual institute – formerly named ORTF). Reproaching INA for having marketed in the form of videograms the recording of a performance of Molière's work "Le Bourgeois Gentilhomme" broadcast in 1986, without obtaining the prior authorisation of the 31 performers of the musical part of the programme, Spedidam brought an action on the basis of article L.212-3 of the IPC in order to obtain additional remuneration for the musicians.
INA meanwhile invoked article L.212-4 of the same Code, arguing that the performers have assigned their rights related to copyright allowing INA to market the work in the form of videograms by signing, at the time they recorded the musical part of the programme, the attendance sheet indicating that the performance was intended for the use as the soundtrack of the audiovisual work "Le Bourgeois Gentilhomme".
Overturning the first appeal decision handed down in favour of INA, the first Civil Chamber of the Court de Cassation laid down the principle that “the contract concluded by each of the performers of a musical composition intended to feature in the soundtrack of an audiovisual work does not constitute a contract concluded for the production of an audiovisual work" (Cass. 1st Civ., 29 May 2013, no. 12-16.583).
Nevertheless, the second Court of Appeal challenged this ruling, arguing that the attendance sheet signed by the performers constituted a contract within the meaning of article L.212-4 of the French Intellectual Property Code. In support of its decision, this Court of Appeal emphasised that the attendance sheet "indicated that the recording was intended to be used for the soundtrack of the audiovisual work specified in the ‘production title’ section by the words ‘Le Bourgeois Gentilhomme’", that the soundtrack was "produced by the dramatic production department" of the ORTF for broadcast on television, and that the musicians "were informed that the recording of their performance was intended for the production of an audiovisual work." The Court of Appeal also stated that "the fact that the musicians do not appear in the image does not exclude their participation in the production of an audiovisual work."
Spedidam then lodged a new appeal before the Assemblée Plénière of the Cour de Cassation.
On 16 February 2018, the Assemblée Plénière dismissed this appeal upholding the second Court of Appeal conclusion that the attendance sheet signed by the performers constituted a contract concluded with the producer pursuant to article L.212-4 of the IPC. Therefore, INA did not have to require an authorisation to use the work in a new form.