French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

The process of creating an advertisement may involve a number of players: advertiser , agency and one or several independent artists. How are the rights to the advertising content created transferred to the advertiser? Several legal texts come into play. 
Article L. 131-3 of the Intellectual Property Code  provides that the “transfer of authors' rights shall be subject to each of the assigned righ …

Right holder

The process of creating an advertisement may involve a number of players: advertiser , agency and one or several independent artists. How are the rights to the advertising content created transferred to the advertiser? Several legal texts come into play. 

Article L. 131-3 of the Intellectual Property Code  provides that the “transfer of authors' rights shall be subject to each of the assigned rights being separately mentioned in the instrument of assignment and the field of exploitation of the assigned rights being defined as to its scope and purpose as to place and duration”. In application of that provision, the courts first considered that the client of an advertising agency could only re-use the graphic creations of the latter on expiry of the contract between them if they had agreed to the transfer of intellectual property rights in conformity with the formal requirements laid down in Article L. 131-3 . The court considered that an “all rights included” transfer clause was void by reason of its generality . However, the Court of Cassation subsequently specified that the provisions of Article L. 131-3 govern only contracts made by the author in the exercise of his exploitation right and not contracts that may be concluded between the assignee with sub-operators: they do not therefore apply to relations between the advertising agent, assignee of the IP right of the author, and its client . In another case, the Court of Cassation clearly limited the scope of application of Article L. 131-3 to contracts of representation, publishing and production contracts in the audiovisual field .

Article L. 132-31 of the Intellectual Property Code defines the rules governing commissioned advertising contracts and poses a presumption of assignment to the producer of the exploitation rights in the work, subject to any clause to the contrary . The automatic transfer of exploitation rights to the producer presupposes that the contract stipulates the remuneration due for each mode of exploitation of the work “in particular according to the geographical area, the duration of the operation, the number of copies made and the nature of the medium used”. The commission must be for the purposes of advertising. Such is not the case of a photograph included in a medium broadcast to a restricted group of employees and which is not accompanied by advertising or promotional messages, or any address or list of points of sale . In addition, according to the case law, the transfer cannot relate to the elements of identification of the company, which become the company's property . This is also the case for a trademark , pictogram  or an advertising icon . On the other hand, the transfer can relate to a slogan created  or photos taken . Similarly, the realization of an advertising commission does not, unless there is evidence to the contrary, entail a transfer of the ownership of the material object  where the contract only covers the transfer of exploitation rights of the work . Again, the Court of Cassation excluded from the scope of application of Article L. 132-31 relations  between the agency and the advertiser: it considered that the transfer to the advertiser of the exploitation rights on works carried out by the author commissioned by the agency may be a matter for assessment by the court of the intention of the parties under the ordinary law governing contractual relations, and not for the presumption raised by Article L. 132-31 of the Intellectual Property Code .

Due to the lack of applicability of the provisions on intellectual property, the transfer of copyright between agencies and advertisers can still be subject to the provisions on standard agreements published on 19 September 1961 by the Ministry of Finance and Economic Affairs, which lays down the usages in relations between advertisers and advertising agencies. According to paragraph IV of that text “the exploitation by the agent for the account of the advertiser and all its creative work i.e. graphic, literary or artistic [work] or the payment thereof, implies the automatic assignment to the advertiser of all rights of reproduction resulting in particular from the literary and artistic property, as defined by the legislation in force”. The automatic transfer enshrined in the standard agreement has long been regarded as contra legem as it is in direct contravention with the provisions of Article 31 of the Law of 11 March 1957, codified in Article L. 131-3 of the Intellectual Property Code, which provides a framework of strict formal requirements for such transfers. The standard agreement provisions were nevertheless applied by the courts and even allowed Article L. 131-3 to be disregarded provided that the parties to the advertising contracts had at least tacitly referred to them . Since the Court of Cassation departed from the earlier case law by excluding the applicability of Article L. 131-3 , the application of the standard agreement is no longer in doubt provided that reference is made to it. If this is not the case, the parties can always prove the transfer under Articles 1341 to 1348 of the Civil Code (now Articles 1363 et seq.) .

Where the assignment of rights is established, the advertiser is still required to comply with the duration or geographic area of exploitation agreed upon: exceeding the authorized boundaries may give rise to infringement proceedings  and damages. This is the case notably when the advertiser exploits the creation after the termination of relations with the agency when the transfer of rights only covers the contractual period  or uses the advertising creation in the USA when the parties intended the transfer to be limited to Europe .

CA Aix-en-Provence, 12 September 2012, LawLex201500001060JBJ, holding nevertheless that an advertiser may not claim the classification of collective work about a logotype created by its agency due solely to the fact that it had required its trade name and its registered word mark be included in whole or in part.

Former Article 31 of Law No 57-298 of 11 March 1957.

T. com. Nanterre, 13 June 1995, LawLex200300001411JBJ.

CA Paris, 27 May 2011, LawLex201500001087JBJ.

CA Paris, 7 July 1995, LawLex200300001373JBJ.

Cass. 1re civ., 20 March 2001, LawLex201500001065JBJ.

In conformity with Article L. 111-3 of the Intellectual Property Code, "The intangible property defined by Article L. 111-1 shall be independent of the ownership in the physical object. Acquisition of such object shall not vest in the acquirer of the object any of the rights afforded by this Code [...]. These rights shall subsist in the person of the author or of his successors in title who, nevertheless, may not require the proprietor of the physical object to make such object available to them for the exercise of those rights [...]". 

Cass. 1re civ., 14 May 1996, LawLex200600001665JBJ.

Cass. 1re civ., 8 December 2009, LawLex201500001088JBJ, see also CA Paris, 22 September 2015, LawLex201500001150JBJ. Cass. com., 16 November 2016, LawLex201600001918JBJ.

Cass. 1re civ., 13 October 1993, LawLex200300002906JBJ, but see Cass. 1re civ., 17 July 1990, LawLex200300002903JBJ. 

Cass. 1re civ., 13 October 1993, LawLex200300002906JBJ, cited above.

Cass. 1re civ., 21 November 2006, LawLex201500001066JBJ.

Cass. com., 6 November 1990, LawLex200300002904JBJ.

CA Paris, 20 February 2002, LawLex200300001207JBJ.

CA Paris, 20 January 1994, LawLex200300003177JBJ; Cass. 1re civ., 8 June 1999, LawLex200300002907JBJ; CA Aix-en-Provence, 12 September 2012, LawLex201500001060JBJ, cited above; CA Paris, 31 January 2017, LawLex201700000256JBJ.

CA Paris, 13 May 2016, LawLex201600001019JBJ.

Cass. 1re civ., 9 October 1991, LawLex200300002905JBJ. Cf. Cass. 1re civ., 4 February 1986, LawLex201500001062JBJ, Article L. 131-1 of the Intellectual Property Code, which prohibits global transfers of future works, is not infringed by a clause providing for the automatic assignment of rights in literary and artistic property over the course of and to the extent of the exploitation or the eventual payment for the commissioned work.

Cass. 1re civ., 13 October 1993, LawLex200300002906JBJ.

"In the case of a commissioned work used for advertising, the contract between the producer and the author leads, unless otherwise stipulated, to the transfer to the producer of the exploitation rights in the work".

Cass. 1re civ., 25 February 2003, LawLex201500001077JBJ.

But see CA Aix-en-Provence, 12 September 2012, LawLex201500001060JBJ, recognizing the agency's copyright of the logotype created for the account of the advertiser. 

CA Paris, 7 July 1995, LawLex200300001373JBJ. But see Cass. com., 26 May 2009, LawLex201200000858JBJ, holding that the trademark registration by an advertising agency is carried out without fraud or bad faith when the parties agreed that the intellectual property rights would initially be vested in the latter, who in the interests of his potential client, has previously ensured the protection thereof.

French Consumer Law

41. Right holder

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

41. Right holder

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise