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Proportional Participation

By Pierre Greffe

The principle of proportional participation (CPI, Art L. 131-4) which aims to give the designer a share in the success of his work is, according to the Paris Court of Appeal ruling of 30 April 2009, a principle of public policy.

Paris CA, 4th Div., Sect. B, 30 April 2009

The economy of a clause consisting in vesting unlimited rights in a third party for publications, without compensating the designer, is clearly a violation of the public policy provisions of Article L. 131-4 of the CPI which stipulates that “the designer’s assignment of his rights ……shall comprise a proportional participation by the designer in the revenue from the sale or exploitation (…).

NOTE

According to case law, the provisions of Article L. 131-4 of the CPI (Art. 35 of the law of 11 March 1957) had been adopted in the interests of the designer and were outside the scope of public policy protection. The consequence is that firstly, only the designer may invoke the relative nullity of an assignment of his rights and, secondly, the designer may cure the nullity by ratification.

Case law has been consistent since the first decision pronounced on this question by the Supreme Court (Supreme Court 1st Civ. Div. 6 Feb. 1973. Bull. Civ. 1973. I. no. 47). It is further held that the nullity enacted by Article 35 of the law of 11 March 1957 is only in the interest of the designer and is only relative. The designer may therefore cure it by ratification (Paris CA. 4 May 1983. Ann. Prop. Ind. 1983. 222). Only designers, to the exclusion of all third parties, are entitled to invoke the nullity of an assignment of their rights that has not been done in accordance with the provisions of Article 35 of the law of 11 March 1957 (Paris CA. 20 Dec. 1989. PIBD 1990. III. 275. no. 476). The essential provisions of Article L. 131-4 of the CPI were adopted solely in the economic interests of designers, such that any violation thereof only gives rise to relative nullity (Supreme Court. 1st  Civ. Div. 11 Feb. 1997. D. 1997. Inf. Rap. 65. See the appealed ruling Paris CA. 25 Oct. 1994. D. 1995. Somm. 288. Obs. Colombet. – Supreme Court. Civ. 13 Feb. 2007. PIBD 2007. 800. III. 290).

Accordingly, third parties to an instrument of assignment may not assert that the provisions of Article L. 131-4 of the CPI adopted solely in the economic interest of the designer and concerning only the designer’s relations with his contracting party, have not been complied with (see in particular Paris CA. 19 Nov. 1999. PIBD 2000. 694. III. 144. – Paris CA. 15 Jan. 1999. PIBD 1999. 674. III. 187 – Paris District Court. 16 Feb. 2001. PIBD 2001. 7205. III. 418. – Supreme Court. 1st Civ. Div. 13 Feb. 2007. PIBD 2007. 800. III. 290).

Lastly, Article 122-7 of the CPI stipulates that “the right of performance and the right of reproduction may be transferred for or without payment”.

François GREFFE

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