The recording contract concluded between a phonographic producer and a performer: reminder of the legal provisions introduced by the "Creation" Law of July 7, 2016.
The Law of July 7, 2016, known as the "Creation Law", introduced new provisions into the Intellectual Property Code applicable to contracts between a phonogram producer and a performer.
Contracts signed on or after November1, 2016 are now required to include an express and clearly defined neighboring rights assignment clause (I). In addition to the requirement for a certain formalism, the Creation Act also clarifies the performer's remuneration (II).
- An express, regulated transfer of neighbouring rights
The French Creation Act extended to performers the protection long enjoyed by authors, through the requirement of a certain formalism in the drafting of rights transfer contracts.
The French Intellectual Property Code now states that the conclusion of an employment contract between a phonographic producer and a performer does not automatically transfer the latter's neighboring rights to the producer (L 212-10).
A record producer wishing to exploit a performer's performance must now ensure that an express and detailed transfer of rights clause is included in the contract.
This practice is not new, since it was customary to insert such clauses in contracts between record producers and performers. The Creation Act gives legal recognition to this practice, stipulating that: "The transfer of performers' rights mentioned in this code is subject to the condition that each of the rights transferred is mentioned separately in the contract concluded with the phonogram producer, and that the scope of exploitation of these rights is delimited as to its extent and destination, as to its place and duration ".
In practice, the performer's economic rights should be listed in the rights assignment clause, i.e. more specifically the right to fix, reproduce and communicate to the public his or her performance.
Article L 212 -11 also stipulates that the contract must expressly mention "future" modes of exploitation ("in a form not foreseeable or not foreseen at the date of signature") ceded by the performer in return for a correlative share in the revenues, in the event of direct payment by the producer of a remuneration proportional to the exploitation revenues.
In addition to the express and detailed assignment of the performer's economic rights, the French Intellectual Property Code also requires that "rights other than those mentioned in the present code" be expressly and separately mentioned in the contract (L 212-11). This refers to the performer's personality rights (image, name, voice, etc.), which are frequently included in artist contracts to enable the promotion of recordings and the marketing of merchandising products.
Here again, the Intellectual Property Code confirms a practice of assigning personality rights that is already widespread in artist contracts. In any event, these legal provisions must now be complied with in full: if they are not respected, the performer may legitimately take legal action to have the transfer of rights declared null and void.
- Clarification of performer remuneration :
The French Intellectual Property Code now makes a distinction according to the nature of the remuneration paid by the phonographic producer to the performer.
The performer is therefore entitled to :
- A salary to remunerate the performance of the recording (cf. minimum fixed by the National Collective Agreement of June 30, 2008 IDCC 2770);
- A minimum remuneration paid in the form of a salary in return for the fixing of his service ; `.
This is a new feature resulting from the French Creation Act, since it was customary to pay performers a global remuneration in return for the transfer of all their neighboring rights. The Loi Création now imposes a specific minimum remuneration for fixation, but to date no clarification has been made to the Collective Agreement for Phonographic Publishing on this point.
- Separate remuneration (royalties) for each mode of exploitation of the phonogram;
All-inclusive packages are therefore prohibited. Article L 212-13 specifies that making a phonogram available in physical form and making it available in electronic form constitute distinct modes of exploitation. The remuneration of the performer for exploitations accessible via streaming and downloading must therefore be separate from that for exploitations in the form of physical supports.
A guarantee of minimum remuneration for streaming is also provided by the Creation Act for the benefit of performers. The terms of this remuneration will have to be established by a collective labor agreement, but to date no consensus has been reached between the artists' and producers' unions (the agreement that had been reached on July 7, 2017 has been denounced by the signatory artists' unions). Failing agreement, a commission is expected to rule on the matter.
Article L 212-11 also clarifies the advance paid by a producer to a performer on remuneration from future uses of recordings. This advance cannot be offset against sums paid to the performer for private copying and equitable remuneration by the collective management organization to which he or she belongs. This article puts an end to the practice of including in contracts a clause specifying that the sums paid by the collective management organizations to the performer compensate for the advance granted by the producer.
