Marketing and communications departments are responsible for managing a vast amount of content. Websites, blogs, videos, social networks or newsletters are often associated with image licenses (copyright). Infringement of these rights can have significant financial consequences. What are the rules governing this right? How do you negotiate with authors? In this interview with Elodie Soulié and Clémence Glé, legal experts at I MEDIATE CLEARANCE , we look at these and other questions.

As we begin this interview, could you give us a brief introduction to your agency?

I MEDIATE CLEARANCE offers a clearance service for all intellectual property used in films, series, music videos, documentaries, audiovisual projects or commercials. This may include elements protected by trademark, copyright, image or name rights.

You refer to the term "clearance", what does it mean exactly?

It's an Anglo-Saxon term derived from the verb "clear", to clean. There is no real equivalent in French vocabulary. The principle is to "clear" an audiovisual production of all legal problems. With this approach, which relies on professionals, risks are minimized and everyone can concentrate on their core business.

Can you explain the principle of intellectual property?

Intellectual property covers 2 aspects: copyright and industrial property.copyright is essentially concerned with musical, cinematographic and artistic works (photos, paintings, sculpture, fashion creations, etc.), software and literature. It comprises 2 aspects: economic rights and moral rights, while industrial property covers everything to do with trademarks and patents.

Getting back to copyright, what exactly is it?

As mentioned above, copyright has 2 specific features. Economic rights give the author the exclusive right to authorize or prohibit the use of his work. Rights run for the life of the author, plus a period of 70 years after the author's death. During this period, applications for authorization and remuneration must be made to the beneficiaries. On expiry of the monopoly, i.e. 70 years from January 1st following the author's death, the work falls into the public domain. On the other hand, moral rights, which under French law never die, are a completely different matter. This means always associating the author's name with the work, and never undermining it.

How is copyright granted?

The author automatically holds principle rights to his original work as soon as it is created, without any formalities or steps. However, he must be able to prove that he is the original author of the work. There are a number of ways of proving the date of creation: using a soleau envelope, registering with a notary or bailiff, or registering with a society of authors. However, ideas are not protected under copyright law; the only thing that counts is their materialization in a work.

What about trademark law?

Trademarks are also protected by intellectual property law. The question of their use needs to be considered on a case-by-case basis. In some situations, authorization is not required if the use is perfectly incidental and not disparaging. In other cases, however, authorization will be required, particularly for advertising purposes.

What about image rights?

The right to one's image, name and privacy are also protected. There is, however, one exception concerning the duty to inform. For example, if a person is photographed or filmed at a demonstration or other public event, he or she cannot assert his or her right to image or privacy. On the other hand, if the media are used 10 years later in a different context, the person's consent must be sought. This takes us out of the information context and the initial event.

How to manage copyright contractually?

First comes the negotiation phase to secure the transfer of rights. Once the negotiations have been completed and the rights have been obtained, the next step is to draw up a formal contract. This will specify the geographical scope (worldwide, or a specific area in the case of advertising films), the duration and the means of exploitation (cinema, television, Internet, etc.). It should be noted that this list is non-exhaustive, in order to take into account any new media that may emerge in the future.

Are there any special features for social networks?

Social networks are governed by the same rules as "classic" media. Youtube and Facebook are particularly vigilant in this respect, and don't hesitate to remove videos when they contain protected content. Nevertheless, many photographs and other protected elements are posted and can slip through the net, so there may be a gap between law and practice. In any case, the principle remains the same: we are not dealing with an exception to copyright that would allow us to dispense with authorization.

What are these exceptions to copyright?

Exceptions to the author's economic rights include the family circle (interpreted in the strict sense), private copying, caricature, parody, etc. (Article L 122-5 of the French Intellectual Property Code).if a user parodies a brand or personality, he or she can then invoke the parody exception, and in this case not have to request authorization.To do so, certain conditions must be met: - the intention is to make people laugh; - the intention is not to harm the author of the original work; - there is no risk of confusion in the viewer's mind between the parodied work and the parodic work; - the viewer must clearly understand that the work is a parody. Thank you Elodie and Clémence for this exchange. In our next article, we'll show you how a DAM platform can help you manage copyright effectively and avoid costly mistakes for your organization.

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