The advertising industry is close to the audiovisual sector but voiceover artist protection may differ on the considered subject. Therefore, if actors and voiceover artists can easily be recognized as performers in an audiovisual work, it is often more complicated in an advertisement, where they are commonly and legally qualified as “complement artists”. But only the performer legal qualification allows a remuneration for the record voice exploitation beyond the salary.
Beyond the performer qualification provided for in Article L 212-1 of French Intellectual Property Code , there is a delicate balance between the two categories of artists in French law, and if criteria were developed as precedents were produced, they are still based on factual situation, which excludes any automatic reasoning. According to a well-established case law, the burden of proof should fall on the one who claims the status of performer (TGI Paris, 30 November 1998; TGI Paris, 3ème ch, 16 September 2003.). Therefore an artist hired into an advertisement has been recognized as a performer because he has proved that he made “ by his voice or by his gesture, a personal artistic rendition” (Soc, 10 February 1998). Similarly, case law recognized that a supporting actress on an advertisement could bring to the work a personal and original contribution, thereby characterizing her performer status “(Civ 1ère, 6 July 1999). The rule is performer status protection. The “complement artists” recognition had also to be the exception and for this reason have to be interpreted strictly. Therefore case law does not only consider the employment contract’s or pay slip’s indications, even if it may provides useful clues (For example: Crim, 9 mars 1993, n°91-84.363). In the absence of a legal definition of the “complement artist”, judges can search on collective agreements any professional use, which might help them in the term definition. In the audiovisual sector, for instance, a professional use provides that the “complement artist” is also defined as soon as the actor has less than thirteen text lines. But this professional use has been logically excluded for the advertising sector, given the short duration of advertising spots (CA Paris, 31 May 1996, JurisData n°1996-023442). In the absence of professional use, about artist status, in the advertising sector, case law had to reach its own “complement artist’s” definition: He “is distinguished from performers in a collective work by the complementary and the ancillary nature of his role, but especially because his personality does not reflected in his performance, unlike the performer who is more involved by his performance which is, therefore, original. It follows that the “complement artist” is interchangeable, generally unidentifiable and not clearly different from other complement artists when the performance is collective” (CA Paris, 18ème ch, 18 February 1993). A much more recent case law has completed this performer identification parameters and, therefore, the negative definition of the “complement artist”: The record of the sentence “talk to each other”, repeat by several people and with several intonations, for a radio program’s advertisement, is not consider as a personal and original performance (CA Paris, pole 6, 5ème ch, 17 mars 2011, JurisData n°2011-006045). Therefore, in order to be recognized as a performer, an applicant must demonstrate that he has an important enough role, that is to say that his role isn’t complementary or accessory. In addition, he has to demonstrate that his personality is reflected in his performance. In this regard, and about voiceover artists hired for an advertisement, the “new” Uncle Ben’s voice hasn’t been recognized as reflecting his author’s personality because it wasn’t different enough from his predecessor’s voice (CA Versailles, 9 October 2008). The artist also had to demonstrate that he isn’t interchangeable or unidentifiable (it wasn’t the case in the aforementioned decision and in the 17 march 2011 decision). To finish the artist had to demonstrate that his performance is based on an original work. In this regard, and about a technic audiovisual documentary, the voiceover artist’s text about technical and historical point of view on Porsche 911 has been consider as an original work, which contributed to the recognition of voiceover artist’s perfomer status.
It follows from this performer status a dual remuneration for comedians hired on advertisements, and each remuneration corresponds to a Code’s application. At first, the comedian earns a fee for the recording of his performance, which is a salary. This first remuneration corresponds to the application of the Article L.7121-9 of the French Labour Code that requires the artist’s physical presence. The recording time being usually less than a day, the fee is often unique. Like any employee, the artist contributes to different funds, and this is the only remuneration that a “complement artist” will receive. But this performance, particularly in the case of an advertisement, will be reproduced and exploited. This will give to the one recognized as a performer neighbouring rights.
Furthermore the performer is also paid for the transfer of exploitation rights on his voice or performance. This new remuneration corresponds to the “neighbouring rights” part of the performer status. A new contract, different from the employment contract, must also to be drafted in order to organized the transfer of this rights. But if neighbouring rights ordinary requires a remuneration proportional to the exploitation of the performance, it is usual, in the advertising industry, to transfer exploitation rights in several lump sum corresponding to each mode of operation, due to the clear practical difficulty to pay the performer on each broadcasting of the advertising spot. This exception can be justified by the Article L.131-4 of the French Code of intellectual property that, although applicable to the author status, can by use by analogy with the performer status. According to the Article L.132-31 of the French Code of intellectual property, this lump sum organized the transfer of right for a renewable period of one year, in the advertising industry, and limited to one territory and to one particular media (radio, TV, internet.etc). Therefore if the advertisement is extended for a new period, a new territory or a new media, the performer will receive an additional remuneration. However, according to an old and constant professional use, if the parties fail to agree on a revised amount, the lump sum will be equal to the half of the amount paid previously. This is always the case in practice and this professional use has been confirmed by expert (CA de Versailles, Garett c/ Léo Burnett, 9 octobre 2008).
Those remunerations follow different rules. At first the fee is subject to social contributions, it is thereby more costly for the producer. According to the statutory employment legislation, the fee is also paid at the end of the month. The additional remunerations are usually paid every year and benefit from a regime, which is more favourable in terms of social contributions. Indeed a circular from the Ministry of Labour on 20 April 2012 holds the lump sum to social contribution on property incomes, which are lower than social contribution on salaries. Anyway, producers will always have a higher interest in non-recognition of the performer status because they will also avoid the whole additional remunerations, but they will risk a conviction, in uncertain situations, if the artist bring legal action to recognise his performer qualification