Assignment of copyright

An assignment of copyright is the contract by which the author transfers to a third party all or part of his or her economic rights in a work, for consideration or free of charge. It is governed by Articles L. 131-1 to L. 131-9 of the French Intellectual Property Code, which lay down formal requirements protecting the author as the party deemed to be the weaker one. Moral rights, being inalienable, remain outside the scope of any assignment.

Formal requirements

Article L. 131-2 IPC requires that contracts transferring copyright be recorded in writing. Article L. 131-3 IPC requires that each of the rights assigned be separately mentioned in the instrument and that the field of exploitation of the assigned rights be delimited as to its scope and purpose, as to territory and as to duration. An assignment drafted in general terms, referring to “all rights” without further detail, has no effect beyond what is expressly stipulated, the Court of Cassation construing assignments restrictively in the author’s favour. Article L. 131-1 IPC renders void the blanket assignment of future works, which does not prevent the assignment of a specified future work or a limited right of first refusal. Article L. 131-6 IPC makes the assignment of rights for unforeseeable forms of exploitation subject to an express clause coupled with a corresponding share in the profits.

The author’s remuneration

The assignment must provide the author with a proportional share of the proceeds from the sale or exploitation, a lump sum being permitted only in the cases exhaustively listed in Article L. 131-4 IPC, among them the assignment of rights in software. The transposition of Directive (EU) 2019/790 strengthened this regime with a transparency obligation on the revenue derived from exploitation and with a mechanism for adjusting remuneration that proves disproportionately low compared with subsequent revenue. Article L. 131-5 IPC also retains the action for revision where a lump-sum remuneration results in a loss exceeding seven twelfths.

Pitfalls in practice

An employment contract carries no automatic assignment of the rights of an employed author, except for software and under the special regime of the collective work. Assignment clauses must therefore appear in the contract or in a separate instrument, and cover each mode of exploitation. According to case law, the formal requirements of Articles L. 131-2 and L. 131-3 IPC apply to contracts concluded with the author in person, assignments between successive assignees being governed by ordinary contract law. When a creation is commissioned from an agency or a service provider, the chain of assignments must be verified back to the individual creator.

Key points

An assignment of copyright requires a written instrument, a separate listing of the rights assigned, a delimitation of scope, purpose, territory and duration, and proportional remuneration save for exceptions. The blanket assignment of future works is void. Before exploiting a creation that was commissioned or made by an employee, check that a compliant clause exists and complete the chain of title back to the individual author.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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