Composite or derivative work (œuvre composite)

A composite work is, in the words of Article L. 113-2 of the French Intellectual Property Code, a new work into which a pre-existing work is incorporated without the collaboration of the author of the latter. It is also called a derivative work. Article L. 113-4 IPC vests its ownership in the author who created it, subject to the rights of the author of the pre-existing work. Translations, adaptations, musical arrangements, anthologies and remixes are its usual forms, which Article L. 112-3 IPC expressly protects.

The conditions of qualification

The qualification requires the incorporation of a first work, in whole or in part, into a second work, without concertation with the author of the first. It is the absence of collaboration that distinguishes the composite work from the work of joint authorship. The incorporation may be material, by reusing elements of form, or intellectual, by adapting one genre to another, from novel to film for instance. The second work must itself be original: a slavish reproduction of the first work is a mere copy and never a composite work. The originality of the derivative work is assessed in its author’s own contribution, whether choices of translation, rewriting or the selection and arrangement of material.

The dual regime of rights

The author of the composite work holds full copyright in his or her creation, with its own term of protection. He or she nonetheless remains dependent on the rights of the first author for as long as the pre-existing work is protected. The incorporation, which engages the reproduction right and the adaptation right, requires the prior authorisation of that author or of his or her successors in title, and every subsequent exploitation of the composite work presupposes that this authorisation covers it. Where the first work has fallen into the public domain, its exploitation is free as regards economic rights, but the perpetual moral right continues to stand in the way of distortions.

Limits and the boundary with infringement

A composite work created without authorisation is infringing, even if it is original and of high quality. Its author therefore cannot exploit it, but retains a right in his or her own contribution and may object to its reproduction by a third party, including the first author. The court examines whether the similarities concern protected elements of the first work or only ideas, a theme or a style, which remain free. Parody, pastiche and caricature, as well as short quotation, allow certain borrowings without authorisation, within the strict limits laid down by statute.

Key points

A composite work is a work in its own right, protected for its author’s original contribution, but it remains dependent on the rights of the author of the incorporated work for as long as that work is protected. Without written authorisation covering the adaptation and the intended exploitations, it is infringing. That authorisation should be secured before any derivative creation, and the spirit of the first work respected, even once it has fallen into the public domain.

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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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