Copyright protects the author and his work. This right does not require a deposit; it is acquired automatically by the creator as soon as the work is created.

However, it is not excluded that someone tries to reproduce or disseminate another person's work without their consent. For this reason, in practice, it may be preferable to register one's work for evidential purposes. Depending on the nature of the work, some CMOs (Collective Management Organisations) or private institutions offer dedicated deposit services. For example:

• SACEM, "Société des Auteurs Compositeurs et Editeurs de Musique" (society of music authors and composers);
• SACD, "Société des Auteurs et Compositeurs Dramatiques" (Society of Dramatic Authors and Composers);
•  SGDL, "Société des Gens de Lettres" (society of literary people);
•  SCAM, "Société Civile des Auteurs Multimédia" (Civil Society of Multimedia Autohors);
•  APP, "Agence pour la Protection des Programmes" (Agency for the Protection of Programmes).

As all means of proof are admissible in court, it is still possible to use other means to "make a date", such as filing a "Soleau envelope" with the INPI ("Institut National de la Propriété Industrielle" - National Institute of Industrial Property).

In the case of a relatively accomplished creation, it is nevertheless recommended to register with a specialised organisation, which can take over the management of your rights in the future.

In French copyright, the principle is remuneration proportional to income. This is a provision of public order, from which derogation is only possible in certain cases, exhaustively provided for by law (Article L.131-4 of the CPI).

Apart from the case of transfers of software rights, for which flat-rate payment is always allowed, and apart from the hypotheses of flat-rate payment specific to the publishing contract, these exceptions are of two kinds:

• Material difficulties in fixing the proportional remuneration: The legislator lists 3 cases: (i) impossibility of determining the basis for calculating the proportional remuneration, (ii) impossibility of controlling the application of the principle of proportional remuneration, (iii) excessive cost of calculation and control operations out of proportion with the results to be achieved,

• Incidental contribution of the author: either this contribution does not constitute an essential element of the work, or the use made of this contribution is itself incidental to the object exploited.

In these cases, the flat-rate is allowed. However, care must always be taken in the use of a fixed price, since the judge has a power of control in this respect. An action for revision of the price on the grounds of injury is also available to the author (in the event of injury exceeding 7/12ths).

The fact that you have purchased a work does not give you the right to reproduce or distribute it freely. Indeed, the fact that you have acquired a copy of a work (whether or not it is unique) does not give you any rights over the work itself.

For example, if you buy a DVD, you will own the physical medium but not the rights to the work (i.e. the film).

In France, authors are granted economic rights (« droits patrimoniau d’auteurs ») for a period of 70 years post-mortem. Thus, in order to reproduce or distribute a French work, authorisation will have to be granted either by the author himself (during his lifetime) or by his heirs (if the author has been dead for less than 70 years). After 70 years, the work falls into the public domain and you are free to reproduce or distribute it.

Exceptions to copyright have been established by the legislator, however, allowing restricted use of works in certain circumstances and under predefined conditions:

• exception for private copying or representation in the family circle,
• exception related to the dissemination of information (short quotation, press reviews, panorama exception, educational exception, dissemination of official speeches, conservation, study and research in libraries, museums and archives),
• exception for parody...

The performer is the person who gives life to a work, who performs it. The Intellectual Property Code defines him/her as the person who "represents, sings, recites, declaims, plays or performs in any other way a literary or artistic work, a variety show, circus or puppet show" (Article L. 212-1 of the Intellectual Property Code).

Thus, performers include the interpreter of a song, the actor who plays a role in a film, the dancer who performs a choreography, the clown or the magician who performs an act, etc.

Because they bring the work to life, performers benefit from protection under related rights.

Conversely, the following are logically excluded from performer status:

• those whose role does not consist of performing a work. This will generally be the case for models, sportsmen and women, hosts of TV shows, etc.

• those who, although participating in the performance of the work, have an accessory role that does not allow their personality to shine through. These are supporting artists, to whom extras are assimilated.

In practice, the boundary between the performer and the supporting artist is blurred. As the law does not provide any legal definition of a supporting artist, it is necessary to refer to custom and case law.

Thus, an extra or supporting artist is one whose performance is of an incidental nature:

• Ancillary: the courts assess the ancillary and/or secondary nature of a performance, from a quantitative (i.e. duration of the performance) and qualitative (i.e. contribution to the work) point of view,

• Impersonal: is not a performer but a complementary artist, one whose personality is not apparent in the performance.

• Anonymous: the idea conveyed here is that unlike the actor or performer, the extra is interchangeable.

In practice, the analysis will have to be done in a casuistic manner.

It is strongly recommended that specific guarantees be taken out before a shoot.

Although classic professional liability insurance covers any material or physical damage caused to third parties during a shoot, it will not be of any help in many cases, particularly in the event of unforeseeable events causing the interruption or postponement of a shoot.

Depending on the nature and organisation of your shoot, various insurance policies may be offered, either as part of a comprehensive policy or as specific policies.

As a minimum, the guarantees must cover :

• audiovisual production risks: this will cover the risks linked to the unavailability of people essential to the filming (director, artistic producer, actors, TV host, etc.), the risks linked to the loss or unavailability of the goods and technical means necessary for the production of the film or programme, in particular the digital media or files containing the recordings,

• material risks: this covers any damage and/or loss caused to audiovisual, technical, office automation and/or computer equipment owned, rented or in the custody of the producer. Set elements and costumes may be included or be covered by specific policies covering assembly, dismantling and storage operations,

• on the filming location, in accordance with the rental contracts or contracts for the use of the equipment taken out by the producer.

It is also advisable to take out an option in case additional costs are incurred beyond the initial budget for specific needs.

Insurance should cover the entire period of exposure to risk, including preparation for shooting and post-production operations.

Negotiating your insurance policies is an important step and should not be overlooked. The exclusions in the contracts constitute numerous traps for producers. It is therefore necessary to anticipate the subscription of your insurance policies, as far in advance as possible of filming.

The firm is at your disposal to help you with these questions.

The exploitation of a copyrighted work is in principle subject to the express authorization of its author. There are, however, certain cases in which the author will not be able to prohibit the use of his work by a third party, because other fundamental freedoms, such as freedom of expression, are at stake.  

Among these exceptions is the parody exception (enshrining the right to humor) provided for in Article L.122-5 4° of the Intellectual Property Code in the following terms: “When the work has been disclosed, the author may not prohibit: (…) 4° parody, pastiche and caricature, taking into account the laws of the genre”.  

However, to be valid, the parody must respect certain conditions :  

• It should make people laugh and should be done for humorous purposes. 
• It should not be confused with the parodied work, which requires sufficient distancing between the parody and the parodied work.  
• It must not exist with the intention of harming others.  

Thus, parody must respect a fair balance between: 

• The rights of the author and his successors.  
• The parodist’s freedom of expression. 

The parodied work must respect the moral rights of the author and in particular the right to respect of the work. The violation of the respect of the work may be retained when there is a likelihood of confusion in the mind of the public between the original work and the parodied work.  

In addition, parody may engage the civil liability of its author, in case of harm caused to others such as “excessive” denigration, discrimination, infringement of privacy or personality rights or violation of human dignity.  

An important judgment of 3 September 2014 by the Court of Justice of the European Union (C-201/13) holds that the judge must carry out a proportionality check to assess the infringement of the author’s rights and the legitimacy of the parody. The parody must not lead to a disproportionate prejudice to the interests of the author and his successors. In this case, the author of a comic strip and his successors in title had a “legitimate interest” in taking legal action since their work could be associated with the parody (caricature) and the discriminatory message it conveyed.  

The "Autorité de Régulation de la Communication Audiovisuelle et Numérique" (ARCOM) is the result of the merger between the "Conseil Supérieur de l'Audiovisuel" (CSA) and the "Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur l'Internet" (HADOPI). This new independent public authority is the result of the law of 25 October 2021 (n°2021-1382) on the regulation and protection of access to cultural works on the Internet, which came into force on 1 January 2022.

The missions conferred on ARCOM are those formerly conferred on the CSA and the HADOPI, with a scope of action extended to online platforms, social networks and search engines:

ARCOM's mission is thus to:

• Guarantee freedom of speech and audiovisual communication,
• Allocate frequencies for the broadcasting of television and radio channels by ensuring the economic equilibrium of the sector (technical and economic regulatory power), 
• Ensuring the financing of audiovisual creation, in particular by ensuring compliance with service publishers' obligations to invest in audiovisual and film production,
• Ensure that programmes broadcast respect the pluralism of currents of thought and opinion, respect people and the public, respect regulations on the protection of minors, regulations on advertising, etc.

On the Internet?

On the Internet, ARCOM is responsible for protecting copyright and related rights and for protecting the audiovisual exploitation rights mentioned in Article L.333-10 of the Sports Code (Article L.331-12 of the Intellectual Property Code - CPI).

In this respect, ARCOM intervenes in particular in the context of:

• Awareness and prevention actions for the public,
• Fighting against illegal downloading with, in particular, the graduated response mechanism formerly conferred on HADOPI (articles L.331-20 and R331-6 to R331-17 of the CPI),
• Encouraging the development of legal offers for the use of protected works on the Internet (Articles L.331-17 and L.331-18 of the CPI),
• Regulation of technical protection measures (TPMs) designed to prevent or limit unauthorised use of a work (Article L.331-28),
• Decision-making power in the context of the contradictory procedure for inclusion on the list of sites that "seriously and repeatedly" infringe copyright or related rights (Article L.331-25 of the CPI),
• Fight against mirror sites, reproducing in whole or in part sites that have been blocked by a court order (Articles L.331-27 and R.331-20 of the IPC).

Before registering a sign as a trademark, you must ensure that it is:

• Lawful: the mark must not be contrary to public policy or morality, nor must it be misleading or deceptive, particularly as to the nature, quality or geographical origin of a product or service.

• Available: the mark has not already been registered by a third party for identical or similar goods or services. It does not infringe other pre-existing rights such as: company name, trade name, domain name, protected design, copyright, personality rights of a third party, etc.

• Distinctive: the purpose of a trademark is to identify the goods or services of a natural or legal person from those of the competition. In this respect, it must not be generic or purely descriptive. Indeed, common signs must be usable by all and cannot be reserved for a single operator.

How to ensure the availability of a sign?

It is essential to carry out searches to assess the availability of a sign, prior to any filing.

The aim is to prevent a possible opposition, an application for invalidation of the registration, an action for trademark infringement or even an action on the basis of unfair competition.

The availability search is carried out among pre-existing trademarks. It can be carried out either among identical trademarks or, more thoroughly, among similar trademarks (the search by similarity being naturally more reliable, since infringement can be established in the presence of two similar signs). It is also advisable to conduct a search among company names, trade names, domain names, designs and models and, where applicable, appellations of origin.

The firm is of course at your disposal to assist you in these searches.

Since the "PACTE" law of 22 May 2019, anything that is susceptible of representation can be registered:

- signs that can be represented graphically, of course (word, figurative or three-dimensional trademarks),

- but also signs that can be represented in the form of a digital MP3 or MP4 file (sound marks, movement marks, holograms, etc.).

What about olfactory or gustatory signs? At present, the French office (INPI) considers that these signs are not protectable, since it is very difficult to represent them and therefore to determine the object and scope of the protection sought.

The filing of a trademark gives its owner an initial protection of 10 years. However, the protection is not limited in time, as the trademark is renewable indefinitely (every 10 years).

However, failure to renew exposes the owner to the loss of his trademark rights, so care should be taken in this respect.