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Sign – Moral right – Right of adaptation – Advertising film

By François Greffe

The inalienability of the right of integrity, a principle of public policy, precludes the writer surrendering to the assignee, on a preliminary and outright basis, sole discretion as to the use, dissemination, adaptation, withdrawal, addition and changes that the latter may decide to make.

After finding that the disputed assignment clause was unenforceable against the songwriter and composer since it carried such a surrender, the court of appeal noted that the disputed adaptation, which was a parody of the lyrics [of a song] over the original music of the work, substantially altered the work and legitimately deduced that, in the absence of any specific, prior authorisation by the songwriter and composer, such an adaptation for advertising purposes infringed their moral right and was unlawful.

Supreme Court. 1st Civ. Division 2 Apr. 2009.

NOTE

The moral right is not an absolute right. It has been considered (Versailles Court of Appeal. 1st Div. 1st Sect. Vasarelli vs. Régie Renault. Unreported) that “the Courts and not the designer himself should assess the infringement of his moral right, and while the assignee of the designer’s economic rights is required to respect the work in which rights have been transferred to him, regard must be had for the nature of the rights assigned and the nature of the work to which the assignment relates”.

The case in question concerned the Renault logo featured on cars and used in particular in advertising. The Versailles Court of Appeal held that “the designer may not assert claims to modifications resulting from the needs of a varied and foreseeable reproduction and which were merely adaptations of the original work and not major modifications that altered the nature or the character, and accordingly, an infringement of the author’s moral right should only be exceptional as regards distinctive signs such as logos or acronyms, the right of adaptation prevailing in such a case” (concerning a logo substantially modifying the original: refer to Paris District Court. 1st Div. 24 July 1998. Gaz. Pal. May 1999. Note P. Greffe. – Paris CA. 4th Div. 12 Dec. 1988. Ann. Prop. Ind. 1989. 173).

In fact, concerning the use of a sign which must inevitably be altered depending on the media to which it is applied, the designer not only assigns his performance and reproduction rights, but also his right of adaptation, which is precisely the right to modify the work.

It therefore lies with the Judge to define the limit between what constitutes use of the right of adaptation and what constitutes an infringement of the designer’s moral right.

And the conclusion of an adaptation agreement does not carry any waiver by the designer of his moral right, but implies a certain degree of freedom for the person adapting the work (Supreme Court [Cour de Cassation], 1st Civ. Div. 12 June 2001. RIDA 2002. 191.267).

François Greffe

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