Saturday, 14 August 2010

The Long Lasting Exclusivity in Recording Agreements

Cour de cassation (1st Civil Chamber), 11 February 2010, RDLI n° 61, S. Pessina Dassonville

The radio broadcaster Europe 1 had made live recordings of the late French artists Barbara and Joe Dassin for a show. At the time of the recordings, the artists were bound by exclusive recording agreements (with Universal Music and Sony BMG), which provided that they were not allowed to record with any other record producer during the term of the agreement.

Therefore, except if otherwise provided for by contract (with the record producers), Europe 1 could only have non-exclusive right limited to the primary destination of the said recordings: that is to say broadcasting.

Europe 1 however authorised licensees to exploit these recordings in the form of records. The exclusive producers therefore successively asked the court to condemn Europe 1 and the companies that exploited the recordings under a licence, not on the grounds of copyright infringement (Universal Music and Sony BMG do not have any intellectual property rights in the recordings produced by Europe 1), but on the grounds of unfair competition (i.e. tort).