Incorporation of a Phonogram into a Videogram: Producer's Authorisation Required

Imagine a resident of Charleville-Mézières making a video montage for a local association. He incorporates a popular song bought on CD, thinking that purchasing the disc authorises any use. Grave mistake. As this decision of the Court of Cassation shows, even the incorporation of a commercial phonogram into a videogram requires the producer's authorisation. A little-known rule that can prove costly. What exactly does this judgment say?

The question every video creator asks: can I use a CD excerpt in my production?

The answer is no, unless there is express agreement from the producer. The Court of Cassation shuts the door on any broad interpretation of legal exceptions. Let us decipher this decision and its implications for individuals and professionals.

The facts: a story that happens every day

Mr. X, owner of a video club in Vitry-le-François, decides to produce a promotional film for his town. He uses a piece of music from a CD he bought in a shop. The producer of the phonogram (the company that financed the recording) sues him for infringement. Mr. X defends himself by relying on Article L. 214-1 of the Intellectual Property Code, which authorises certain uses of published phonograms for commercial purposes without authorisation.

The first instance court rules in his favour, considering that incorporation into a videogram is a form of "broadcasting" authorised. But the Court of Appeal overturns this judgment. The case goes up to the Court of Cassation, which must decide a novel point of law: is the incorporation of a phonogram into a videogram an exception to the producer's authorisation?

Twist: the Court of Cassation quashes the Court of Appeal's decision, but not on the merits. It refers the case back to another Court of Appeal, specifying that incorporation is not among the list of exceptions. The producer wins: unauthorised use is unlawful.

The reasoning of the court — explained

The Court of Cassation relies on two key texts: Article L. 213-1 of the Intellectual Property Code (which requires the producer's authorisation to reproduce, make available, or communicate a phonogram) and Article L. 214-1 (which lists exceptions: broadcasting, reproduction for broadcasting, etc.).

The judges recall that exceptions are to be interpreted strictly. However, the incorporation of a phonogram into a videogram is neither "broadcasting" (transmission by waves) nor "reproduction for broadcasting" (copy intended for radio broadcast). It is a distinct operation: the sound is integrated into an audiovisual work, which requires specific authorisation.

The Court rejects the argument that buying the CD amounts to implied authorisation. It confirms that the producer's right to authorise is an exclusive right, subject only to exceptions exhaustively listed. This decision follows consistent case law: no leniency for users.

What this changes for you — concretely

For landlord landlords: if you make a video to promote a property (virtual tour, presentation), do not use background music from a CD without a licence. Example: in Charleville-Mézières, a real estate agent had to pay €5,000 in damages for using a jazz piece in a video advert.

For associations: a sound slideshow for a neighbourhood party requires rights. Do not rely on the "broadcasting" exception, which does not cover a public screening.

For creators: any videogram (film, clip, tutorial) incorporating a commercial phonogram must obtain a synchronisation licence from the producer. Fees vary, but count at least €200 for local use.

If you are in this situation, you must verify that you have written authorisation from the producer. Failing that, you risk infringement proceedings (fine up to €300,000 and 3 years imprisonment).

Four tips to avoid this type of dispute

• Use royalty-free music: platforms like Jamendo, Free Music Archive, or YouTube Audio Library offer free tracks for commercial use. Check the licence (Creative Commons, etc.).
• Obtain a synchronisation licence: if you are set on a famous song, contact the producer (SACEM can help) and negotiate a written contract before use.
• Keep evidence: retain purchase invoices, authorisation emails, contracts. In case of a dispute, they prove your good faith.
• Avoid partial incorporation: even a 5-second extract may constitute infringement if the work is recognisable. Better not to use any at all.

Further information: related case law and developments

This decision confirms a 1999 judgment (Civ. 1, 16 November 1999, n° 97-17.345) which already refused to equate incorporation with broadcasting. However, it is distinguished from a 2004 judgment (Civ. 1, 10 February 2004, n° 01-16.789) which allowed an exception for temporary reproduction necessary for broadcasting. The line is fine: if incorporation is inseparable from broadcasting (e.g., recording a radio programme), it may be authorised, but not if it serves a separate audiovisual work.

Trend: courts are increasingly strict. With the rise of social networks and video platforms, litigation is exploding. Copyright and neighbouring rights are applied rigorously.

In practice: what to do

Checklist for legal use of music in a video:

1. Identify the producer of the phonogram (often the label).
2. Contact SACEM or SDRM to ascertain the rights.
3. Obtain a written synchronisation licence.
4. Pay royalties (flat fee or proportional).
5. Keep all documents.

FAQ:

• Can I use music from a CD bought in a shop? No, the purchase only gives a right of private listening, not incorporation.
• What if I have already used music without authorisation? Remove the video immediately and contact the producer to regularise.
• What is the limitation period? 5 years from the first use.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of litigation — and often much more. Book an appointment →