Using the creation of a third party is not without risk with regard to intellectual property rights, so we invite you to clearly identify which rights are likely to affect the creation you want to reuse.
What are the different rights to creation?
- Copyright (difficult to spot at first glance, unlike the existing “r” in the United States);
- Trademark rights (word mark, figurative or complex mark, semi-figurative mark). A trademark is registered with the INPI. This trademark deposit allows to protect the brand in France, or in the European Union if the brand is community, or international. It is easy to identify the owner of a brand by doing an anticipation search on the INPI website;
- Design rights (taking into account graphic elements of two or three dimensions depending on whether they are a design or a model);
- The patent (process or product bringing a new technical solution). An invention is only protectable if its inventor or the one who exploits it to file a patent.
What are the protection periods in France for registered rights?
- For copyright: the author’s moral right is perpetual and lasts for the benefit of his rights even if the work has fallen into the public domain. Therefore, any person wishing to use a protected work must respect his or her integrity and paternity (name the author of the work). The exploitation rights are respected throughout the life of the author and lasts for 70 years after his death. After this period, the work enters the public domain and can be freely exploited;
- For a brand: 10 years, renewable indefinitely;
- For designs: 5 years, renewable 4 times (i.e. 25 years maximum);
- For a patent: 20 years, non-renewable.
What steps do you have to make to use the creation of a third party?
If you know the author or the rightholder, you can ask him for permission to use his creation. The authorisation must be given in writing and specify the destination, the supports, the rights assigned, the duration, the territory of exploitation and possibly the amount of the financial compensation. This authorization of use constitutes a license of law or an assignment of rights according to whether the rights are granted for a time or are sold.
If you do not know the author or the owner of the rights, you can search for the author’s name or otherwise, call on a lawyer or an industrial property attorney.
Be aware that using a work without asking the author for permission will expose you to possible penalties. Indeed, any exploitation of a creation without having been previously authorised constitutes an “infringement”. The author may seize the Court by way of infringement action in order to obtain compensation for his damage.
Generally, the dispute will be resolved amicably (Decree No. 2015-282 of March 11, 2015).
Sometimes a work is subject to a free license. The free-licensed work is not royalty-free, but arranged by the author, in such a way as to allow certain uses which, in normal times, would not be permitted. It is a contract for the exploitation of copyright.
It is therefore interesting to know if the work is subject to a free licensing regime and to know the characteristics of this license.
Finally, some uses of the work do not require permission from the author. These are exceptions to copyright, which may consist of: short quotation, educational or informational exception, private copying and private representation in a family circle…).