Using a third party’s creation is not without risk regarding intellectual property rights, so we invite you to clearly identify which rights are likely to apply to the creation you want to reuse.
What are the different rights applying to the creation?
- Copyright (difficult to spot at first glance, unlike the “r” symbol existing in the United States);
- Trademark rights (word mark, figurative or complex mark, semi-figurative mark). A trademark is registered with the INPI. This trademark filing allows for protection in France, or in the European Union if it is a Community trademark, or internationally. It is easy to identify the owner of a trademark by conducting a prior art search on the INPI website;
- Design rights (taking into account graphic elements of two or three dimensions depending on whether it is a drawing or a model);
- Patents (process or product bringing a new technical solution). An invention is only protectable if its inventor or the one exploiting it has filed a patent.
What are the protection durations in France for registered rights?
- For copyright: The author’s moral right is perpetual and continues for the benefit of their successors even if the work has fallen into the public domain. Consequently, anyone wishing to use a protected work must respect its integrity and authorship (citing the name of the work’s author). Exploitation rights are respected throughout the author’s life and continue for 70 years after their death. After this period, the work enters the public domain and can be freely exploited;
- For a trademark: 10 years, indefinitely renewable;
- For designs: 5 years, renewable 4 times (thus 25 years maximum);
- For a patent: 20 years, non-renewable.
What steps should be taken to be able to use a third party’s creation?
If you know the author or the rights holder, you can ask them for permission to use their creation. The authorization must be given in writing and specify the purpose, media, rights assigned, duration, territory of exploitation, and potentially the amount of financial compensation. This usage authorization constitutes a license or an assignment of rights depending on whether the rights are granted for a time or are sold.
If you do not know the author or the rights holder, you can search for the author’s name yourself or, failing that, call upon a lawyer or an industrial property advisor.
Be aware that using a work without asking the author for authorization exposes you to potential sanctions. Indeed, any exploitation of a creation without prior authorization constitutes “infringement.” The author can take the matter to court through an infringement action to obtain compensation for their prejudice.
Generally, the dispute will be resolved amicably (Decree n°2015-282 of March 11, 2015).
Sometimes, a work is subject to a free license. A work under a free license is not royalty-free, but arranged by the author to allow certain uses that normally would not be permitted. This is a copyright exploitation contract.
It is therefore interesting to know if the work is subject to a free license regime and to know the characteristics of this license.
Finally, some uses of the work do not require any authorization from the author. These are copyright exceptions, which can consist of: short quotations, educational or informational exceptions, private copying, and private representation within a family circle…).
