Work of joint authorship (œuvre de collaboration)

A work of joint authorship is, under Article L. 113-2 of the French Intellectual Property Code, a work in whose creation several natural persons have taken part. It is characterised by a concerted creation, inspired by a common design, and belongs jointly to its co-authors under Article L. 113-3 IPC. It differs from the collective work, the rights in which arise in the person who discloses it under its name, and from the composite work, which incorporates a pre-existing work without the participation of its author.

The conditions of qualification

Two elements are required. The first is a plurality of authors who are natural persons, each having made an original contribution, which excludes the mere executant, the technical adviser and the financier. The second is a shared inspiration, that is, concerted work towards a single work, even if the contributions are successive and belong to different genres, such as the lyrics and music of a song. Whether or not the contributions can be individualised is immaterial. The statute moreover presumes certain contributors to an audiovisual work, the textbook example of a work of joint authorship, to be co-authors.

The regime of joint ownership

Article L. 113-3 IPC subjects the work to joint ownership, which the co-authors exercise by common agreement. In the event of disagreement, the civil court decides. Any exploitation of the work as a whole therefore requires the consent of each co-author, and an assignment granted by one alone is unenforceable against the others. Where each person’s contribution belongs to a different genre, each co-author may, unless otherwise agreed, exploit his or her personal contribution separately, provided this does not prejudice the exploitation of the joint work. The sharing of revenue is freely agreed and, failing agreement, is in equal shares. The term of protection runs, under Article L. 123-2 IPC, from the death of the last surviving co-author.

Litigation over works of joint authorship

The Court of Cassation holds that a co-author who sues alone for infringement in defence of the economic rights in the joint work must, on pain of inadmissibility, join the other co-authors, unless his or her contribution can be individualised and belongs to a distinct genre. This rule is a frequent cause of failure of poorly prepared actions. Conversely, a late claim to co-authorship by an overlooked contributor is a risk for the exploiting party which has not secured assignments from every participant.

Key points

As soon as several natural persons create a single work together, it belongs to them jointly and may be exploited only with the agreement of each of them. The term of protection is calculated from the death of the last survivor. Before any exploitation or any legal action, all co-authors should be identified, a written assignment obtained from each of them and, in the event of a dispute, all of them joined to the proceedings.

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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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