Cour de cassation (Social Chamber), 26 September 2007, n°06/42.575 (obs. Costes L., in RLDI 2008/33, n°1119)
In application of a recording agreement, the two members of a French band called ‘Native’ had granted the exclusive rights to their recorded performances to BMG France, with an obligation to record at least three albums.
The first two records, released in 1993 and 1997, were successful. One of the members of the band recorded a third album alone. Released in 2002, this album was a commercial failure. The artist brought the case before the labour court, competent to handle litigation relating to recording agreements concluded between record companies and performers. The labour court condemned the record company to the payment of 200.000 euros damages for breach of contract, considering that it had not carried out the necessary promotion when the album was released.
The Court of Appeal upheld the decision, on the basis that the record company had not accompanied the release of the album with a ‘new promotion’ and that the record was released in abnormal conditions. BMG France brought the case before the Cour de Cassation, the French Supreme Court for civil and criminal matters.
BMG France claimed that a record company, which has to perform the recording agreement in good faith, has no obligation to guarantee a result regarding the conditions in which the record is released. BMG France argued that the promotion of a record depends on whether the radio and television stations decide to broadcast the record or not. It also argued that the artist had on several occasions refused to record a single that was supposed to back the promotion of the album, thus violating its contractual obligations.
In its decision dated 26 September 2007, the Supreme Court dismissed BMG France’s arguments. The Court ruled that the Court of Appeal had rightly considered that the record company had not justified the carrying out of a new promotion operation for this third album, apart from one programme on the radio and another on television, whereas this contractual obligation was not disputed.
A record company does not have an obligation to guarantee the success of an album, but has to be able to prove that it used all necessary means to promote the album.