Phonogram producer

A phonogram producer is the natural or legal person who takes the initiative and bears the responsibility for the first fixation of a sequence of sounds (Article L. 213-1 of the French Intellectual Property Code). The producer holds a related right that rewards the production investment, irrespective of any originality and without formality. This right coexists with those of the author of the recorded work and of the performer, so that exploiting a recording requires, in principle, three authorisations.

Producer status

Producer status is assessed against two cumulative criteria, the initiative and the responsibility for the first fixation, meaning the economic risk and the organisation of the recording. A mere service studio or a passive financier does not qualify. A phonogram means any exclusively aural fixation, whatever the medium. The producer of a film soundtrack is not a phonogram producer, as the fixation is that of a sequence of images with sound, which falls to the videogram producer.

The producer’s rights

The producer’s authorisation is required before any reproduction, any making available to the public by sale, exchange or rental, or any communication to the public of the phonogram. The producer’s right carries no moral prerogative, but it is subject to the principle of exhaustion for the distribution of physical copies within the European Economic Area, in accordance with Directive 2001/29/EC.

Statutory licence and equitable remuneration

Where the phonogram has been published for commercial purposes, the producer cannot object to its direct communication in a public place, other than at a show, or to its broadcasting and the simultaneous and unabridged cable distribution of that broadcast (Article L. 214-1 IPC). These uses give rise to equitable remuneration, shared equally between performers and producers and collected by collective management organisations. This statutory licence does not cover on-demand making available, which remains subject to authorisation.

Term and litigation

The producer’s right lasts fifty years from 1 January of the calendar year following the first fixation, and seventy years from publication or first communication to the public where that occurs within that period. Unauthorised exploitation is an infringement falling within the jurisdiction of the judicial courts. Producer status is proved by recording contracts, studio invoices and the notices appearing on the copies.

Key points

The phonogram producer is the person who takes the initiative and bears the responsibility for the first sound fixation. The producer holds an exclusive right of reproduction, distribution and communication to the public, tempered by the statutory licence for broadcasting and for background music in public places. The term reaches seventy years from publication. Before exploiting a recording, identify the producer, check the chain of contracts and make sure that the rights of the author and of the performer have also been secured.

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

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