Infringement of a musical work: the French Supreme Court upholds Calogero's conviction for his song "Si seulement je pouvais lui manquer" ("If only he could miss me")

A songwriter brought an infringement action against Calogero, claiming that the track "Si seulement je pouvais lui manquer" partially infringed his work entitled "Les chansons d'artistes" , registered with SACEM in 2002 .

In a ruling dated November 3, 2016, the French Supreme Court rejected the appeal against the appeal ruling recognizing the acts of infringement.

The forensic report had noted melodic, harmonic and rhythmic similarities between the two songs, and it was estimated that the title took up 15% of the plaintiff's entire work and 63% of its chorus.

The appeal ruling had stated that "it is incumbent on the person who, being sued for infringement, maintains that the similarities noted between the work of which he declares to be the author and that which is opposed to him, result from a chance meeting or from reminiscences stemming from a common source of inspiration, to justify this by producing all useful elements".

In this case, the Court of Appeal had noted that the plaintiff's work had been submitted to professional circles, and in particular to Universal Music, so that its disclosure was certain.

The infringer argued that this disclosure was very limited, and that the Court of Appeal had placed an impossible burden of proof on him by requiring him to demonstrate that he had not had access to the plaintiff's work.

The Court of Cassation rejected the appeal and upheld the appeal ruling, which found that the defendants "had not established that it would have been impossible for them to have had access to the song 'Les Chansons d'artistes', and that the works in question were not based on common reminiscences".

As for compensation for economic loss, the Cour de cassation also approved the decision of the appeal judges who, "after having assessed the number and importance of the infringing passages, notably in the composition of the choruses of the offending work, were able to estimate that the defendant's personal loss amounted to the total of the reproduction rights, performance rights and mechanical rights that he would have received for the exploitation of the musical part of the work 'Si seulement je pouvais lui manquer'".