The transfer of rights in France: understanding in order to better protect and exploit your creations

What is a transfer of rights?

La transfer of rights Corresponds to a legal transfer economic rights from an author to another person or structure (physical or legal). This transfer can be total or partial, free or paid, and it focuses only on property rights (the economic rights of the author), never on moral rights, which are inalienable.

In other words, the transfer operates a change of intellectual owner : the transferee becomes the owner of the rights transmitted, with the possibility of deriving an economic benefit from them (distribution, reproduction, sale, adaptation...).

Example: a freelance designer creates a logo for an SME. If an assignment clause is included in the contract, the company becomes the holder of the right to reproduce and distribute the logo, within the agreed limits (digital media, duration, territory, etc.).

The legal foundations

• Article L131-3 of the Intellectual Property Code : any transfer of copyright must be Written and specify the extent, destination, location and duration of the rights transferred.
• Article L131-1 CPI : the global transfer of future works is prohibited.
• Article L122-6 CPI (for software): regulates the exclusive rights of reproduction, translation, adaptation, etc.

Transfer of rights and licenses: what are the differences?

The two concepts are often confused, but they are based on different logics.

The transfer contract

The transfer contract Transfer the ownership of economic rights to a beneficiary (the assignee). The author (the yielding) completely or partially renounces its prerogatives to exploit the work.

→ The assignee becomes full owner rights transferred.

Consequence: during the term of the contract, the author can no longer personally exploit his work or transfer it to a third party for the rights concerned.

The license agreement

Conversely, the licensing Does not train no transfer of ownership. The author retains ownership of his rights, but Authorize a third party to exploit the work according to defined conditions (duration, territory, use...).

The license can be:

• Exclusive, when only one beneficiary can exploit the work;
• unsophisticated, when granted to several.

Example: a software publisher grants a user license to a client company. The company can use the software, but never owns it.

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The copyright transfer contract: conditions and mandatory information

The transfer must be formalized in writing, under pain of nullity. This contract precisely frames the scope of the transfer.

Indispensable clauses

According to the Intellectual Property Code, the contract must mention:

• The identity of the parties (assignor and assignee);
• The nature of the rights transferred (reproduction, representation, adaptation, distribution...);
• The extent of the transfer (all or part, media concerned, operating methods);
• The destination (purpose or use of the work);
• The territory (France, Europe, the whole world);
• The duration (always limited in time);
• Author's remuneration, proportional or lump-sum.

Concrete example: a communication agency mandates a photographer for a national advertising campaign. The transfer contract will specify that the reproduction and distribution rights are transferred for a period of 3 years on French territory for web and print distribution.

The remuneration of the transferor

The principle is that of a proportionate remuneration to the revenue derived from the exploitation of the work. However, a lump-sum remuneration may be provided in certain specific cases:

• Software work;
• Transfer abroad;
• Publication in the press;
• Basis of calculation impossible to determine.

Example: a graphic designer transfers the rights to use a logo for a single fixed amount, because there is no measurable revenue linked to the distribution of this logo.

The different types of transfers

1. Transfer of copyright

It concerns original creations protected by copyright: literary, artistic, musical, visual works, scripts, software...

2. Transfer of intellectual property

This category includes not only copyright, but also patents, marks, industrial designs and models, or software rights. The contract will specify the rights transferred and the necessary formalities (filing with the INPI, tax information, etc.).

3. Transfer of disputed rights

Less frequent, it corresponds to the transfer of a right of claim that is the subject of a dispute (articles 1597 et seq. of the Civil Code). It makes it possible to avoid the risks of a lawsuit by transferring the right to a third party at a reduced price.

The obligations of the assignee

The transferee must:

• Strictly respect contractual limits;
• Pay the remuneration due;
• Mention the name of the author unless otherwise specified;
• Do not distort the work without authorization (respect for moral rights).

Penalties

Any excess of the scope of transfer (use of a work on unintended media, distribution beyond the agreed duration, etc.) exposes the transferee to the risk of counterfeiting, civilly and criminally sanctioned.

Example of a standard clause

Article X — Transfer of copyright
The Licensor declares to be the owner of the economic rights relating to the work entitled “[Name of the work]”. He hereby assigns to the Assignee, on an exclusive basis and for the whole world, the rights of reproduction, representation, adaptation and distribution of said work for a period of 5 years.
The remuneration due to the Seller is fixed on a fixed basis at the sum of [amount in euros], taking into account the nature of the envisaged exploitation.
The Assignee undertakes to mention the name of the author on any public exploitation of the work.

Precautions for SME managers

To avoid litigation:

• Always check the presence of a written and complete contract;
• Make sure that the work was indeed created by the transferor;
• Define precisely the rights transferred (media, duration, territory);
• Keep the proof the payment of remuneration;
• Mention intellectual property in your CGV or service contracts.

Example: a website ordered from a service provider without an explicit transfer clause remains legally the intellectual property of the developer. The company cannot freely resell or change the code.

The transfer of rights free of charge

An assignment can be gratis, but must still be formalized in writing. It then involves a transfer without financial compensation, but remains legally binding.
This is often the case in collaborative contexts (open source, association, sponsorship).

Example: an amateur photographer transfers free of charge to an association the rights to exploit a photo for its website, for a period of 2 years.

Specific forms: certification and transfer of business

• Certificate of transfer : simplified document confirming the mutual desire of the parties to transfer rights (often used with freelancers or occasional artists).
• Transfer of a right to operate : operation by which the author expressly authorizes a specific exploitation (television broadcasting, advertising use, etc.).

Frequently asked questions (FAQ)

What is an assignment in law?

It is a transfer of debt or rights between two persons, organized mainly by the Civil Code. In terms of intellectual property, it is the transfer of economic rights to a work.

What is the difference between a transfer of rights and a license?

The transfer transfers the ownership, the license grants a right of use. The first is comparable to a sale, the second to a rental.

What is an intellectual property transfer contract?

It is a contract that transfers all or part of the rights to an intangible work (author, patent, trademark or design) to a third party, often accompanied by specific formalities depending on the nature of the law.

Can we make a free transfer?

Yes, as long as you write it down and define all the parameters (duration, territory, use). Free payment does not exempt you from formalizing the transfer.

What are the consequences of a poorly written transfer?

A poorly written or inaccurate transfer may be cancelled or reinterpreted to the detriment of the business. The main risk is a lawsuit for counterfeiting or the impossibility of using the work.

In summary: legal expertise, a strategic asset

The transfer of rights is not a simple formalism: it conditions the legal security of your commercial operation. In digital and creative sectors that are particularly exposed to the risk of counterfeiting, careful drafting and specialized legal support are essential.

Attention: the transfer of rights is a regulated matter. The use of a lawyer specialized in intellectual property is strongly recommended to anticipate and secure the legal, fiscal and economic consequences of the transaction.

Article written by Guillaume Leclerc, lawyer in commercial contracts and commercial litigation in Paris.