FRANCE Law and Practice Contributed by: Vanessa Bouchara, Adèle Maier and Louise Lacroix, Cabinet Bouchara
them harm or prejudice. This is not easy to prove, but it could be established, notably when a trade mark reproduces the name of a celebrity without their authorisation. The scope of trade mark rights is not limited by copy - rights. However, similarly to surnames, a trade mark could be revoked if it infringes a third party’s copy - rights. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works French law provides a non-exhaustive list of protected works, covering graphic works, photographic works, creations of seasonal clothing and accessories, as well as literary works, dramatic works, musical works, cinematographic works, works of fine art such as paintings and sculptures, plans, maps and sketches. However, this list is not comprehensive, so an uncat - egorised work of art can be protected if it meets the general requirement of originality. Industrial designs are also entitled to copyright protection provided they are original under French copyright law. The protection is not limited to fixed works per se. However, in order to be protected, the work must have actually been completed/created. Mere concepts and ideas are not protectable as such. 3.2 Essential Elements of Copyright Protection Article L112-2 of the Intellectual Property Code pro - vides a non-exhaustive list of protectable works under French law. Under French Law, a work must be origi - nal in order to benefit from copyright protection. Protection is automatically awarded to original works upon the creation of the work, without any formality. There is therefore no public list or registry of protected works in France. Originality under French copyright law is assessed by the courts and is understood to cover a work that
bears the imprint (the expression) of the author’s per - sonality. This criterion applies to all kinds of work – the type or form of the work is irrelevant, as is the “merit” of the author or the purpose of the work. 3.3 Copyright Authorship In France, the author is a natural person (companies cannot be considered “authors” under French law, even though they may own the copyright) who is gen - erally identified by their name. To address the limitation of natural persons as authors, French law provides that unless proven otherwise, authorship belongs to the person or persons under whose name the work is disclosed, and it can be a company. There is a presumption of copyright owner - ship, in the absence of a claim by the author, in favour of the person who makes unequivocal use/disclosure of the original work under their name. In case of authorship contestation, the only way to establish authorship is by submitting the assignment agreement between the parties, which has to meet a number of specific conditions (precise determina - tion of scope, territory, duration of the assignment, for example). Hence, except for software and other specific and limited exceptions, there is no work-for- hire doctrine per se in France. However, there are specific rules for collective works (ie, works created at the initiative of a natural or legal person who edits, publishes and discloses the work under its direction and name, and where the personal contribution of the various authors involved in its crea - tion is merged into the overall work): the employer can be considered as the rights-holder if the work has been created at their initiative and under their control, if it is impossible to allocate separate rights to each contributor. Finally, French law allows joint authorship when the work is “collaborative”; ie, a work created through the contribution of several natural persons (eg, a song). Each author is considered a “co-author”, and the creation gives rise to joint ownership of the work. The copyrights on a collaborative work are governed
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