Is the writer an artist like any other?

In a recent case, a famous popular singer (Pierre Perret not to mention him), through a company responsible for representing him in the negotiation and execution of contracts linked to his artistic activity, had concluded, between 2006 and 2015, seven publishing contracts with a publishing house, by using contracts established by the artist's company; and not with the usual models of the publishing house.

In acrobat, there is a bank…

At the end of 2016, the publishing house published the eighth work by Pierre Perret, entitled My life in wine. However, the parties had not formalized any publishing contract in writing. By SMS, then by registered letter with acknowledgment of receipt, the publisher asked Pierre Perret's company to send him the publishing contract relating to the transfer of rights to this book. By mail, Pierre Perret's company finally sent a contract which provided for a transfer of rights for a period of only one year (previous contracts were concluded for periods ranging from two to five years) and stipulated remuneration of 20%. of the public price of the current edition with an advance of 150,000 euros (instead of 100,000 euros in previous contracts).

By email, the publisher refused this contract on the grounds that it contained unrealistic clauses which did not appear in any of the previous contracts and requested a version consistent with previous practice.

In response, Pierre Perret's company criticized the publisher for exploiting the book My life in wine in infringement of the artist's copyright in the absence of a signed written contract, prohibited him from continuing this exploitation and ordered him to pay him the sum of more than one million euros provisionally on his damage. Atmosphere. Finally, Pierre Perret's company sued the publisher for copyright infringement and compensation for their damages.

To defend itself, the publisher (Le Cherche-Midi) argued the existence of an agreement in principle between the parties regarding publication and the requirement only for proof of a written contract. But the best defense being the attack, the publisher was more offensive in advancing that by only transmitting the contract after eight months of operation and in instigating its conclusion under the threat of an action for infringement, the company of Pierre Perret had abused his rights.

To write, you need a written contract…

Firstly, the court recalled the requirements of the legislation, namely that under the terms of article L. 131-2 of the Intellectual Property Code, “ representation, publishing and audiovisual production contracts […] must be recorded in writing. The same is true for free execution permissions. Contracts by which copyright is transferred must be established in writing » ; that under the terms of article L. 132-7 paragraph 1 of the same code, “ personal written consent from the author is required » and, finally, that under the terms of article L. 122-4 of the same Intellectual Property Code, it is provided that “ any representation or reproduction in whole or in part made without the consent of the author or his successors in title is unlawful. The same applies to translation, adaptation or transformation, arrangement or reproduction by any art or process. ».

Secondly, the court considered that by sending a letter with the publishing contract under exorbitant conditions, the artist's company had given its express consent to a right to reproduce the book and the conditions of the transfer of this copyright, namely the rights assigned, the duration and conditions of the assignment within the meaning of article L. 131-3, paragraph 1.

Thirdly, the court looked at the flowery terms of the exchanges between the artist's company and the publishing house on the clauses deviating from the previous practice of the parties: ” These clauses which bother you so much are only the logical consequence of the contractual breaches repeated ab libitum by your company and the editorial group to which it belongs, breaches which are the subject of my grievances and the subjects of my discussions. It is obvious that dotting the i's in this contract in an attempt to have clear and sincere accounts can only annoy you and your acrimony only justifies the need for the clarifications that I have included. (…) I maintain all of the clauses included in the contract sent, a contract for which I intend to be fully respected, which can only avoid a new dispute. »

For the court, these terms demonstrated that the new clauses of the proposed contract for the edition of My life in wine were inserted in retaliation for grievances from the artist's company relating to the execution of contracts relating to two previous works.

Consume in moderation

Consequently, on the basis of these terms, the court considered that “ by demanding the signing of a contract under these new conditions, under the threat of copyright infringement on the sole basis of the absence of a written contract, the artist's company has diverted the provisions of the code of intellectual property relating to the formality of the contract and their purpose » and rejected Pierre Perret of all his requests against his publisher (TJ Paris, 3e ch., 2e sect., 7 avr. 2023, n° 20/00009). Like wine, legal proceedings should be consumed in moderation!