The year 2024 is particularly marked by the cinematic adaptation of the novel “The Count of Monte Cristo” starring Pierre Niney. Although the film will unfortunately not be presented at the Oscars, it serves as a perfect example of adapting a literary work into a film. In this adaptation, directors Alexandre de La Patellière and Matthieu Delaporte did not need to negotiate copyright as these rights are limited to the author’s lifetime plus 70 years after their death, thereby excluding the heirs of Dumas from any economic benefit from the film. However, the situation is different for the project of re-adapting “Froth on the Daydream.” The director will, of course, need to obtain a cession of copyright for the adaptation of the literary work.

First and foremost, it is essential to ensure that the author or their heirs have not ceded the rights to their publishing house. Indeed, while the intellectual property code prohibits the transfer of audiovisual rights in the publishing contract (under penalty of nullifying the cession contract), it is quite common, especially for larger publishing houses, to simultaneously sign a contract for the adaptation of the literary work into an audiovisual work.

If no contract has been concluded beforehand, it is advisable to propose a two-part contract, namely:

– A commissioning contract (or option contract);

– A copyright transfer contract.

What is the benefit of using these two contracts? The French intellectual property code provides, under penalty of nullity, that any transfer of copyright on a future work is null and void. When the author of a literary work is approached, the audiovisual work has not yet been created, meaning it is a future work. The contract typically includes the payment of an advance (which will be deducted from the royalties received after the release of the audiovisual work), a deadline for finalizing the work, and possibly a framework and means for realizing the film adaptation.

It is not uncommon for the author of the literary work to be involved in the audiovisual adaptation process. The intellectual property code presumes that the author of the adaptation is a co-author of the audiovisual work. This means that the director of the audiovisual work must ensure they obtain both literary and adaptation rights from the writer if they have participated, and in any case, from the person responsible for the adaptation of the work.

The option contract provides exclusivity for acquisition, usually limited to 12 months. Since 2005, an options register has been established, maintained by the National Center for Cinema and the Moving Image (CNC), to ensure the publicity of film or audiovisual adaptation projects during the interim period before the effective transfer.

In the second part of the commissioning contract, it is advisable to include the transfer contract to avoid potential blockages. With this mechanism, the parties will only need to exercise the option, but they will already have agreed on the terms of the transfer.

The author of the original work retains their moral rights. As a reminder, moral rights consist of the rights of disclosure, attribution, integrity of the work, and withdrawal. The right of disclosure no longer truly applies at this stage. The right of attribution involves the right for their name to be mentioned near the work, or their pseudonym, or for the author to maintain their anonymity. It is fundamental in the transfer contract to specify how the author’s name will be indicated or to clearly state the intention to use anonymity.

The right to integrity implies the obligation for third parties to respect the philosophical approach of the work. This right is, in fact, limited in adaptation cases since the author of the original work can only invoke the right to integrity if the changes made by the creators of the film distort the original work, knowing that case law now places great importance on the principle of freedom of expression.

Thus, in the so-called “Les Misérables” case, case law held that moral rights must yield to the freedom of creation, provided that the second work respects the original work.

The heart of the rights negotiation obviously revolves around remuneration. To determine authors’ rights, we rely on Net Receipts per Producer (RNPP). Thanks to three inter-professional agreements signed on July 6, 2017, including one specifically addressing transparency and remuneration in the relationships between authors and producers of audiovisual works, a common definition of RNPP-A has been established. This aims to harmonize practices in the sector’s contracts. According to Article 3-B), RNPP-A represents the minimum basis for any proportional remuneration due to the author, detailing how to calculate it. They are particularly important for legal remuneration in individually managed exploitation modes, as it is often challenging to determine a public price excluding taxes. This explains the differences with publishing contract practices.

The transfer contract must comply with the formal requirements set by the Intellectual Property Code. It is essential to specify several elements: duration, territory, the exclusivity of rights, and modes of exploitation. Case law is very strict in this regard, and any transfer that does not meet these conditions may be deemed null. Regarding duration, common practices in publishing suggest that the transfer should cover the entire duration of copyright protection, that is, the author’s lifetime plus seventy years after their death. This means authors can indeed negotiate this duration with the publisher, and any potential extension requested by the publisher could lead to a renegotiation of remuneration in favor of the author. Furthermore, if the audiovisual adaptation rights are transferred back to the author, they then have the freedom to negotiate directly with interested producers. This flexibility is further justified by Article L. 131-3 of the Intellectual Property Code, which states that the publisher must commit to exploiting the transferred right in accordance with professional practices. If the publisher does not actively seek this exploitation, the author could recover their rights. As for the territory, geographically limiting the transfer to a publisher can prove complicated, especially in the context of audiovisual projects, where financing and distribution are often international. Finally, it is important to remain vigilant regarding modes of exploitation. Limiting the transfer solely to audiovisual adaptation could deprive the author of many other opportunities. Related exploitations (such as books, board games, video games, spin-offs, or various merchandise) should be excluded unless a separate and substantial financial agreement is established. For example, a comic book adaptation of a film, itself inspired by a pre-existing comic, could be considered.

Our firm remains at your disposal for any questions.