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Adaptation rights : how to deal with them under french law

 

Examples of films adapted from literary works abound in France : commercial films or author movies such as: "Moka", “A little job”, “Down by love” ... and adapted films represents about 30% of French production. We propose here an overview of the legal issues that a producer must take into account as part of an adaptation project.

 

In the first place, the producer must determine if the literary work is in the public domain or protected by copyright. In France, a work finds into the public domain 70 years from its author’s death, or from the death of the last of its authors, except for cases of extensions as provided by the articles L123-8 to 10 of the French intellectual property code. If the work is not in the public domain it is necessary for the Producer to establish the relevant right holder: publisher, producer and more rarely the author if he chose to retain the adaptation rights.

 

It can also be accurate to wonder if the work is actually protected by the copyright, such question as notably has been raised for letters and private diaries. The jurisprudence is rather favorable to their protection (especially those written by authors or artists). However, judges have also already denied any protection by stating that "the letters are not among the books and documents listed in Article L. 112-2 of code of intellectual property " and based on a lack of originality. (TGI Paris, 1re ch., 5 novembre 1997, RG n° 10-541).

 

Regarding the acquisition of the adaptation rights, it is usual to conclude an option contract on the audiovisual adaptation rights of the literary work. Then, the option price approximately amounts to 10% of the price of the adaptation rights but remains negotiable. In any case, this amount is acquired to the right holder as a compensation for the locking-in of the rights. If the option is exercised, the price may constitute all or part of the guaranteed minimum compensation. Ultimately, the assignment of adaptation rights will incorporate the essential clauses: assigned rights, term, territory, exclusivity, financial dispositions…

 

In general, except in cases of exceptional notoriety, adaptation rights represent 1 to 3% of a film’s budget. As the author of the literary work is deemed to be an author of the adapted work, we note here that proportional remuneration for the copyright holder is mandatory. It is essential to draft a warranty clause regarding at first the ownership of rights by the right holder and secondly the lack of harm to others due to the work (defamation, privacy....). To remain prudent, it is always necessary for the producer ask the copies of documents that attest of the ownership of rights, provided that the audiovisual rights to adapt a literary work must be subject to written agreement separated from the edition agreement.

 

The French intellectual property code provides the author of a work with a right for the respect of his authorship and his work (article L.121-1 CPI). The moral right of the author on his work is inalienable: the author retains it in all situations and transmits it to his heirs. Consequently, in an adaptation project the authorship of the literary work must always appear and it is necessary to ensure not to distort the original work or not to cause it unjustified harmful modifications. It is possible to draft a provision preserving the interest of both parties providing that « Without prejudice to the moral right of the author of the Work, Producer shall have the right to apply all the modifications that he deemed necessary for the audiovisual adaptation of the Work and the production of the Film but that If such modifications, additions or deletions are not approved by the Right Holders, the Right Holders may require the Producer to not mention the authorship of the Work in the Film’s credits and publicity, but may in no case impair or prevent the production and the exploitation of the Film”. Due to the inalienability of moral right such a clause is not 100% sure and does not warrant that a judge rules in favor of the producer in the event of action by the author.

 

Nonetheless, jurisprudence is rather obliging regarding adaptation, and has always been favorable to producers by establishing that the author does not have "the power to come back on agreement compatible with that right when they were discussed and concluded freely; otherwise it would be impossible to discuss the development of any derivative work " (18. CA Paris 1re ch., 23 novembre 1970, RIDA , 3/1971, p. 74). French Supreme Court has even stated that the prohibition of any alteration or modification is "subject to limitations that ther can be made to the moral right due to the specificities and nature of the agreements signed by the author"  (Cass. Civ. 1re, 17 décembre 1991,JCP 1992, 4641 ; Légipresse n° 97-I, p. 137 ;n° 97-III, p. 129).  The Court has recently highlighted that "the conclusion of an adaptation agreement does not mean a waiver of the moral right, but (...) the film adaptation of a literary work implies that some freedom is granted to the adapter ".(Civ. 1re, 12 juin 2001: Bull. civ. I, no 171; Propr. intell., oct. 2001, p. 62, obs. A. Lucas).

 

Nevertheless it is to be recalled that the tendencies and nature of the work must not be altered. In practice, the point of balance between the respect of the preexisting work and the freedom of the adapter will be to comply with the general spirit of the original work: the adapter's task is "to find, without altering the character, a new expression of the substance of a work "(Cass. Civ. 1re, 22 novembre 1966 préc.).  

 

As an example, if there is a distortion of the characteristic features of the main characters, the Court considers that the right to respect of the original work is violated. Paris Court also admitted denaturation about the adaptation of a novel built around an analysis of character and human relationships into a film mainly composed of scenes of violence and physical action (TGI Paris, 18 avr. 1979: RIDA oct. 1979, p. 175.).

 

Finally, the involvement of the author in the project must be considered. Some authors whose weight is important (or their editors) want a say in the scenario, the choice of the director or the cast and other artistic elements of the film; which must be subject to negotiation. These provisions are constraining, but some form of involvement of the author of the literary work can limit the risks during production and / or release of the film.

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