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Artistic property – Advertising illustration – Protection – Commissioned work for advertising – Article L. 132-31 of the French Intellectual Property Code (CPI).

By Pierre Greffe

An advertising illustration combining graphic and photographic elements may be protected under Section I of the French Intellectual Property Code [Code de la propriété intellectuelle (CPI)].

A publishing company would not, in this instance, invoke Article L. 132-31 of the CPI, which institutes a system specific to the commissioning of an advertising work. While the aforementioned article does provide that, in the case of a commissioned work used for advertising, the contract between the producer (the advertiser) and the designer (the advertising agency) assigns the rights to the work to the producer, it makes such assignment contingent upon the existence of stipulations specifying separate compensation payable (to the designer) for each type of use of the work depending, in particular, on the geographical area, the length of use, the number of copies and the type of medium.

An examination of the order form, i.e. the ADVERTISING ORDER, shows that it cannot have assigned the rights to the work to the advertiser since, by stipulating a global price, it does not meet the aforementioned requirements concerning the payment of the designer.

Paris Court of Appeal. Section 5 – Division 1. 27 May 2009.

NOTE

The question is whether the special provisions of the Intellectual Property Code (Articles L. 132-31 et seq.) on the assignment of works commissioned for advertising are still applicable today.

Article L. 132-31 of the CPI contains a second paragraph which stipulates that: “an agreement between the organisations representing designers and the organisations representing producers in advertising defines the basic components of the compensation paid for the different uses of works, and paragraph 3 specifies that “the term of the agreement is between one and five years”.

An agreement was reached between the trade union organisations in question and gave rise to a Ministerial Decree (notice of 2 May 1987).

Now, that notice has not been renewed, as the trade union organisations failed to meet again after the first five-year period expiring in May 1993 (See F. & P. Greffe. La Publicité et la Loi. 11th ed. 2009. particularly no. 410 et seq.).

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