Ballad in the mall: the violence of a scene does not give rise to an integrity claim in relation to the background music

A Kat thinking about synchronisation

The past few years have been marked by major copyright disputes involving musical works [IPKat here, here or here]. A recent ruling of the Paris Court of First Instance (Tribunal judiciaire) provides a further illustration. This time the dispute focused on the impact on moral rights of synchronising a musical work with a TV show about drug cartels.

Facts

Mr M. is the composer of the musical work ‘Ballade pour Adeline’. American company Narcos obtained the right to synchronise this work for an episode of the series Narcos - Mexico, of which it is the producer, granted by the company Regent. Regent believed that it held the right to synchronise this work under a sub-publishing contract with Delphine productions. Mr M. noticed that his music had been synchronised in a murder scene shown in episode 10 of season 2 of Narcos - Mexico. Believing that this synchronisation infringed his copyright, Mr M. sent a cease-and-desist letter to the three companies. In April 2022, a settlement was reached concerning his economic rights. The composer however brought an action for infringement of his moral rights before the Tribunal Judiciaire of Paris.

Analysis

To decide the case, the court divided its reasoning into several steps. It should be noted that, as the originality of the musical work was not contested, the court came directly to hear the claims concerning the various infringements of Mr M's moral rights. In this respect, it is important to remember that under Article 6bis of the Berne Convention, the rights of attribution and of integrity must be protected by national legislations. Such is the case in France [More on this subject here].

Firstly, the court made a point of clarifying the subject matter of the dispute, i.e., an alleged infringement of the composer's moral rights, in order to avoid any confusion fuelled by the parties' submissions.

Relying explicitly on article L. 121-1 of the CPI, the court recalled the various characteristics and attributes of moral rights in France, namely that they are personal, perpetual, inalienable and imprescriptible, and that the author has the right to respect for their name, status and work. This list should come as no surprise. French moral rights allow authors to oppose any infringement of the integrity of their work, whether physical or spiritual (‘esprit de l’oeuvre’). This very point is the subject of the most important developments in this judgment.

A poster of Narcos - Mexico

The court, rejecting the composer's arguments, decided that the association of 'Ballade pour Adeline' with a scene described as violent did not constitute an infringement of the spirit of the work. In reaching this solution, the court recalled that the burden of proving such infringement was with the author who considered himself the victim of the infringement, requiring proof of the incompatibility between "the use of the work to illustrate the depiction of violence" and "the spirit of the work". Such position is in compliance with established case law [e.g., here].

Such a demonstration is factual. This is where the author failed. In this respect, the court explained that ‘although the lightness of the musical theme, the context of its creation in honour of the author's daughter, and its recurrent use (...) both in children's piano lessons and in a context intended to be romantic, these indications 'do not in themselves convey a unique or exclusive spirit', i.e., for example, the illustration of 'tenderness' or 'love'’. This non-exclusivity of the spirit of the work is emphasized by the fact that the author had already consented to the association of his music as a sample for songs with violent lyrics and with cinematographic works containing scenes of violence, as pointed out by the defendants.

However, the court clarified its assessment by stating that ‘a violent scene may undermine the respect due to the work by the concrete way in which it represents violence or the message it conveys’. Here, the composer failed to demonstrate that the episode or series promotes or encourages violence. This is truer as the ballad is described as used simply as background music, detached from the subject of the scene, already present before the violent scene.

While the judgment may appear severe and even open to criticism in certain respects, it should not be forgotten that moral rights are not absolute. If the composer had explicitly stated during his career his opposition to any association of his work with violence, and that he had never accepted such associations, the outcome of the present dispute would probably not have been the same. Numerous cases involving infringement of the spirit of the work bear witness to this [e.g., here]. Consistency is therefore required. This is what the court seemed to suggest when it stated that ‘the work was conceived or at least developed with the author's agreement in a spirit that is not exclusively tenderness, love or purity, and which does not prohibit in principle the association with shocking depictions of violence’.

Carrying on its analysis, the court laconically ruled out any infringement of the integrity of the work due to its fragmentation on the grounds that the composer had contractually agreed to the use of "fragments of the work". In this respect, it should be remembered that synchronisation itself very often implies that the synchronised work will be used in the form of extracts, and not in its entirety, which cannot in principle be regarded as an infringement of the integrity of the work [e.g., here]. It should be noted that the Court of Cassation recently reiterated that, for a simple fragmented reproduction, authorisation from the company that has entered a publishing contract with the author may be sufficient [IPKat here].

In all this, the Court upheld Mr M.'s arguments and found that the total absence of his name and authorship constituted an infringement of his right of attribution.