Paris. The “free” transfer of copyright is a frequent practice in artistic circles. However, free access should not make us forget the respect of a certain contractual formalism provided for by article L. 131-3 of the Intellectual Property Code. According to the latter, each transfer of copyright must be the subject of a writing specifying the nature of each right transferred (reproduction, representation, etc.), the extent of the rights transferred (supports, formats, etc.) , their destination (field of activity), the territory covered by the transfer and the duration of the transfer.
However, for several years, case law has considered that the gratuitous transfer is analyzed as a donation which is the“act by which the donor actually and irrevocably divests himself of the thing given in favor of the donee who accepts it” (article 894 of the Civil Code). In fact, the rule of article 931 of the Civil Code must apply according to which “all acts relating to inter vivos donations will be executed before notaries in the ordinary form of contracts; and it will remain minute, under penalty of nullity.” It follows from this for judges that transfers of intellectual property rights free of charge must be made before a notary! After confirming this solution for trademarks, designs and patents, the summary judge of the Paris judicial court has just confirmed it for copyright by a recent order of September 11, 2024.
In this case, puppeteers, co-authors of puppets representing personalities from the political, economic and media worlds, criticized an online media outlet for having exploited their creations in videos (from the satirical show “Les Marioles”, editor’s note) without their permission. If an agreement in principle had been reached between the parties, according to which free exploitation of the puppets was authorized in return for a partnership in the context of the disputed videos, the judges considered that, this authorization not having been passed before a notary , this was void and could not be opposed to the puppeteers.
Very unfortunately this vision, now well anchored in the lower courts, would benefit from being nuanced. Indeed, the qualification of “donation” requires us to note, in addition to the gratuitous nature, the liberal intention (animus donandi) which justifies the act, that is to say the desire of the artist-donor to gratify the beneficiary-donee without expecting or receiving compensation. It is a safe bet that this liberal intention is only rarely present since the counterpart is generally the gain in notoriety generated by free reproduction or representation in a magazine or on the Internet. This is how, on July 1, 1998, the Paris Court of Appeal excluded the liberal intention of Pablo Picasso on the reproduction of the drawings from the work Torosy bullfighters (1961), because the latter hoped at the time of its publication a future gain linked to the international distribution of the book which would allow him to increase his notoriety and that of his drawings – and this is only because of the violation of the aforementioned article L. 131-3 that the Court of Cassation finally declared the transfer null and void on January 23, 2001.
Legal uncertainty
As we can guess, this emerging case law is questionable and contested by part of the doctrine, because its perpetuation would lead to great legal and economic uncertainty for past situations. If artists can see it as a way to regain control over their rights and avoid abuses during negotiations likely to result in free transfers not really granted, professionals who use these free transfers risk seeing their economic model collapse. while they participate in the diffusion of creation.
Pending a clarification requested by the Court of Cassation, caution is required when drafting a deed of transfer free of charge, in particular in order to specify the framework within which it falls. Of course, if the liberal intention is obvious, going before the notary would seem to be necessary. To be continued!
