Unclear student guide not enough to constitute authorisation to use short film still

Every year in May, the Cannes Film Festival takes place. To celebrate the start of this event, this Kat has found a recent judgment issued by the Tribunal judiciaire (TJ) of Lyon [the birthplace of cinema] concerning a case of copyright infringement relating to the still of a short film. But, for once, there was no question of originality.

Facts

Mr T trained as an editor at a film and audiovisual school run by ECAR CAMPUS from 2009 to 2011. In its 2010/2011 student guide, the school's internal regulations stated that “students grant their school permission to use their work exclusively for educational and non-commercial purposes, to promote the school to the general public”. In 2011, Mr T directed and edited a short film entitled “Rêve d'enfants”. In March 2019, Mr T noticed that a still from his short film had been extracted and modified for use on all ECAR CAMPUS's media. Mr T unsuccessfully proposed an out-of-court settlement to his former school. In these circumstances, on 5 June 2019, Mr T brought a claim against ECAR CAMPUS for copyright infringement before the Tribunal judiciaire of Lyon (TJ).

A Kat shooting a movie

Analysis

To rule on this dispute, the TJ divided its judgment into several steps. First, the court quickly confirmed the admissibility of Mr T's claim and his authorship of the allegedly unlawfully reproduced still. Indeed, relying explicitly on article L. 111-2 of the French Code of Intellectual Property (CPI), the court recalled that “a work is deemed to have been created independently of any public disclosure, by the mere fact of its creation, even if unfinished, from the author's conception. Thus, the right does not arise from disclosure”. 

Analysing the body of evidence produced by Mr T (i.e. pictures showing him photographing the young girl featured in the still, an email, an attestation from third parties, a digital copy of the short film), the TJ held that the litigious image was part of “Rêve d’enfants”, created before its exploitation by the school. It also confirmed that Mr T was its author. Such assessment is factual. Authorship can be proven by any means, with preference given to those conferring a definite date of creation. 

The TJ then sought to determine whether the school could rely on a valid authorisation for use within the meaning of articles L. 131-2 and L. 131-3 of the CPI. According to the defendant, such authorisation originated in the passage of its 2010/2011 student guide. In this respect, the Court recalled that “there are either contracts for the assignment of rights or free execution authorisations, which is what the authorisation of use relied on by the defendant should be equated with. This authorisation for use, which does not entail the transfer of rights, must be precise, strictly interpreted and necessarily precarious in nature”. 

After analysing the litigious passage of the student guide as mentioned above, the Court rightfully rejected its application. Such decision is not surprising. The school guide did not meet the strict and cumulative conditions of the aforesaid provision. No time-limit was mentioned.  Its writing was ambiguous, extremely broad and contradictory. 

Notwithstanding the validity of the clause, at no time did the defendant attempt to demonstrate that the image had been taken in a school context. This would have been necessary for the clause to apply to the circumstances at issue.

In the end, in the absence of any valid authorisation for use, the court was able to hold that the reproduction of the image from the short film ‘Rêve d'enfants’ constituted an infringement of Mr T's economic rights. As far as moral rights were concerned, the fact that the image had been cropped, recoloured, and altered by the addition of a banner and the absence of Mr T's name were sufficient to constitute an infringement [IPKat on moral rights here, here or here].

Comment

There is a great deal of case law on this point, which is complex and remains relevant [IPKat on copyright assignment here and here]. This judgement therefore demonstrates the need for strict compliance with the formalities laid down in article L. 131-3 regarding authorisations for use.

From a practical point of view, disputes concerning the transfer of copyright or authorisation for use in school environments are not uncommon, particularly in establishments with an artistic dimension. Students should therefore be cautious when faced with this type of clause. On the other hand, a good advice for schools would be to comply with the rules laid down in the above-mentioned article, by being as clear as possible, mentioning the rights concerned clearly and specifying the place and duration of the authorisation. The goal is to avoid disputes similar to this one.