Copyright Assignment Agreement

Verified 03 May 2024 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Culture and Communication

From the creation of his work, the author benefits, on condition that it is original, from intellectual property rights which we call copyright. Some of these rights may be assigned, free of charge or against payment, through a copyright assignment contract.

A work is any creation resulting from an intellectual or artistic activity. It can be a book, a musical composition, a drawing, a choreography, a software, etc.

A work is original when imprint of the author's personality, that is, when it reflects its personality and expresses its free and creative choices. The author must have breathed his " personal touch in the work.

Please note

An original work is not not necessarily new. A creation which takes up an earlier idea may be original, provided that it expresses the personality of the author.

This originality can be expressed at different stages of the creative process. In photography, for example:

  • At the preparatory stage, the author can choose the staging, lighting, pose of the person to be photographed, etc.
  • When taking the photograph, the author can choose the framing or the angle of the photograph.
  • Finally, when the shot is printed, the author can choose from a variety of development techniques.

When a work is original, it is protected by copyright from inception and even before completion. The author has no steps to take to benefit from this right.

Copyright is divided into 2 groups: the moral rights and property rights.

Warning  

Only property rights may be the subject of an assignment of copyright. In addition, the global assignment of future works is prohibited.

Moral rights

Moral rights are intended to to protect non-economic interests of the author, i.e. respect for his name, his capacity as author and his work.

The author of the work has the following rights:

  • The right of disclosure allows the author to decide the date and conditions under which the work will be revealed to the public for the first time. It may decide not to make it public.
  • The right to paternity allows the author to put his name (or pseudonym) on each publication of the work. He may decide to remain anonymous.
  • The right to respect for the integrity of the work allows the author to oppose any modification of the work without his permission. The author can ensure that his work is not distorted by an addition, a removal or a retouching.
  • The Right to Withdraw and Repent allows the author to make a “backward machine” and stop any exploitation of his work, without having to justify his choice. In return, it must pay compensation to the beneficiary whose operating rights have been withdrawn.

Moral rights present 3 essential features :

  • They are perpetual : they are not limited in time and are passed on to the heirs upon the death of the author.
  • They are inalienable : they may not be transferred to third parties. A contract which organizes an assignment of moral rights would not be legally valid.
  • They are non-prescriptible : the author is still entitled to his right, even if he has not exercised it for a prolonged period. For example, the author and his successors in title may still object to the modification of the work.

Property rights

Property rights are intended to to protect economic interests of the author.

They allow the author toto authorize or prohibit any form of exploitation of the work, whatever the modalities.

More specifically, the author of the work has the following rights:

  • The right of representation allows the author to authorize or prohibit the communication of his work to the public, directly or indirectly (broadcasting, public recitation or projection, lyrical performance, dramatic performance, etc.)
  • The right of reproduction allows the author to authorize or prohibit the material fixing of his work on any medium which would make it possible to communicate it to the public by an indirect process (printing, drawing, engraving, photography, molding, mechanical, cinematographic or magnetic recording, etc.)

Property rights also include the right toadaptation, the right to translation and, for graphic and plastic artists, the resale right.

The resale right allows graphic and plastic arts authors to to collect a percentage on the resale price of their works. This right applies whenever a resale involves a art market professional as a seller, buyer or intermediary. The resale right may not be assigned to a third party.

Example :

A publisher must obtain the right of reproduction from the author of a painting in order to print a book containing images of the work.

Unlike perpetual moral rights, property rights are limited in duration. In fact, they are extinguished and the work enters in the public domain beyond 70 years from the year following the author's death.

In other words, the work can be exploited freely and free of charge, subject to respect for the moral rights of the heirs.

In addition, property rights are freely transferable (with the exception of resale right). The author can thus authorize the exploitation (representation or reproduction) of his work by a third party, for remuneration.

However, the assignment of the right of reproduction does not imply an assignment of the right of representation. Everything must be specified in the copyright assignment contract.

Example :

The author of a novel gives a publisher the right to reproduce his novel for sale in bookstores. This assignment of the right of reproduction does not imply the assignment of the right of representation. For example, the publisher will not be allowed to communicate the novel to the public online.

Warning  

Any infringement of a moral or pecuniary right constitutes a counterfeiting act punished by 3 years imprisonment and €300,000 of fine.

The author of the work may also engage the civil liability of the infringer and demand payment of damages.

The copyright assignment contract must be drafted in writing and must list exhaustively the rights transferred. Assignment is not valid if the scope of the rights assigned is too broad.

Thus, the contract of assignment must include following mentions :

  • Identity of the parties : first and last names of the author of the work and of the beneficiary of the assignment.
  • Exact description of the works concerned
  • Scope of rights transferred : the contract specifies whether the assignment relates to the right of reproduction (publishing contract), representation (representation contract), translation and/or adaptation. The inclusion of the words "etc." is sufficient for judges to establish that there is no delimitation of the area of exploitation of the rights transferred.
  • Destination : the contract shall specify how often the work may be broadcast and in what form (medium). If the assignment of rights also relates to a digital exploitation of the work (on the Internet), the contract must specify this.
  • Territory : the contract shall specify the geographical area in which the holding is authorized. Rights may be assigned for a particular city or region, country or even "for the whole world" (especially if the work is broadcast on the Internet).
  • Duration : the contract shall specify the period for which the holding is authorized. Assignment may be granted for the entire legal term of copyright protection.
  • Prices and payment terms

It should also always be clarified whether these rights are transferred whether exclusively or not. If the contract is subject to an exclusivity clause, the author may not grant any further assignment of his rights throughout the duration of the exclusivity.

Please note

This formalism is also required in assignment contracts free of charge.

Any holding outside the contractual framework shall be considered as a forgery.

Example :

Publishing more copies than the contract authorizes is an act of forgery. This situation is referred to as ‘the counterfeiting of the contractual partner’.

It is also an act of forgery for a publisher to distribute a book on the Internet without the author's permission.

In the event of a dispute, the judge's interpretation of the contract will be based on the presence or absence of these mandatory particulars. In order to safeguard the interests of each party, it is recommended to entrust the drafting of the assignment document to a legal professional (example: a lawyer).

Please note

The interpretation of an obscure contract will generally be in favor of the artist-author.

The copyright assignment contract allows the author to assign certain rights to his work (right of reproduction, representation, adaptation or translation).

Depending on the rights transferred, the contract of assignment may adopt different shapes best suited to the author's professional field. Thus, it is possible to highlight 3 types of contracts assignment of copyright. These contracts are regulated specifically by law, but they are not the only ones possible.

FYI  

Only property rights may be the subject of an assignment of copyright.

Publishing Contract

The publishing contract allows the author of a work (or his successors in title) to assign the right to to manufacture or to have manufactured copies of the work or make it digital. In other words, the author surrenders his right of reproduction.

In return, the publisher must assume responsibility for the publication and dissemination of the work.

The publishing contract must not be confused with the copyright contract. It is a contract by which the author (or his successors in title) pays the publisher a fee for publishing and distributing the work.

The publishing contract is also not a half-account contract. By this agreement, the author (or his successors in title) agrees to share the profits and operating losses with the publisher in charge of publishing and distributing the work.

Representation contract

The performance contract allows the author of the work (or his successors in title) toauthorize a person to represent this work under the conditions which it shall determine. In other words, the author surrenders his right of representation.

The contract of representation is frequent in the entertainment industry. It grants the choreographer or director permission to present the work to the public.

There is also the general contract of representation. It is a contract by which a professional body of authors gives to a entertainer the possibility of representing, during the term of the contract, the current or future works constituting the repertoire of that body.

This type of contract has been designed for the categories of works that are intended to be widely used, for which authors have recourse to collective management organizations such as the Sacem: titleContent, theAdagp: titleContent and the SACD: titleContent.

Audiovisual production contract

An audiovisual production contract is a contract concluded between one or more co-authors and a producer with a view to the making and exploitation of an audiovisual work (film, documentary, reportage, etc.).

The producer is the natural or legal person who takes the initiative and responsibility for the realization of the work. It is responsible for financing the work and plays a leadership and coordination role.

By co-authors, the author of the script, the author of the adaptation, the author of the spoken text, the author of the musical compositions with or without speech, etc.

The audiovisual production contract shall provide for a list of the elements which have been used for the production of the work and which shall be retained.

The author who surrenders his economic rights usually receives a remuneration paid by the transferee (the transferee). This is specified in the contract.

The author of a work may also assign it for free to a third party, provided that the gratuity is expressly (unambiguously) granted and that the author is able to justify the cause of the gratuity.

Proportional remuneration

In principle, the remuneration of the author shall be proportional to revenue arising from the sale or exploitation of the work by the recipient of the assignment. In practice, the beneficiary must be accountable to the person who exploited the rights thus transferred.

The rate of pay shall be freely determined by the parties provided that the remuneration of the author is seriousness, fairness and equity. The rate can be fixed or variable.

However, where the assignment of rights concerns a work declared to a collective management business (e.g. Sacem: titleContent, Adagp: titleContent, SACD: titleContent(b) minimum percentages of remuneration shall be fixed by the management business.

Please note

The existence of an employment contract does not call into question the need to draw up a contract for the assignment of copyright if the employee creates a work on the occasion of his employment and his employer wishes to exploit it.

Flat-rate remuneration

As an exception, the author's remuneration may be fixed flat-rate in any of the following cases:

  • Proportional remuneration cannot be applied in practice: in particular where the amount of revenue from the exploitation of the rights transferred cannot be identified or where the calculation of this basis of assessment requires excessive resources.
  • The author's contribution does not constitute one of the essential elements the intellectual creation of the work. In the context of a collective work (with the contribution of several co-authors), remuneration for the package is possible.
  • The use of the work presents only one ancillary character in relation to the object exploited: for example, posters and flyers made by graphic designers to promote a play.
  • The work is published in the press.
  • The author or assignee shall be established abroad, under a publishing contract.
  • The assignment relates to the first edition ofspecific works : scientific or technical, anthologies and encyclopedias, illustrations, prayer books in particular.
  • The assignment relates to software.

Rights stemming from works created by public officials in the performance of their duties or according to the instructions received are automatically transferred to the public person who employs them, to the extent that strictly necessary the performance of a public service mission.

For uses that are not strictly necessary for this purpose (e.g. commercial exploitation of the agent’s work), the State has only one preferential right. In other words, the agent should propose the commercial exploitation of the work as a priority to the state.

The public officials are the following:

  • Agents of State
  • Agents of local authorities
  • Staff of public administrative establishments (EPA)
  • Agents of independent administrative authorities
  • Agents of the Banque de France
  • Agents of the Académie Française, the Académie des Entries et Beaux-Lettres, the Académie des Sciences, the Académie des Beaux-Arts and the Académie des Sciences Morales et politique

In the case of software created by an employee in the performance of his duties or on the instructions of his employer, the proprietary rights are automatically assigned to the employer.