Performer status
Author status
Reclassification of employment contracts
Comment
The Paris Court of Appeal has recognised as an author and performer a presenter who was hired to write and present features about young women's emotional lives and to respond to inquiries from viewers in a broadcast on a cable television channel. The court also reclassified several standard fixed-term contracts concluded between the presenter and the programme producer as open-ended employment contracts.
The producer claimed that the presenter's performance was secondary to the two main features of the show, assisted by three other presenters. According to the producer, the four presenters could not be individually identified and could even be confused, as their own personalities did not appear in the show.
The court applied an in concreto assessment of the provided elements and noted in particular that:
- The channel wished to create a specific relationship with the broadcast audience by highlighting the personality, strengths and expertise of each presenter; and
- After five months, a viewer could not confuse the presenter in question with the other presenters.
Therefore, the court held that the character portrayed by the presenter "possessed its own personality which was sufficiently different from the other presenters for viewers to be able to identify it with ease" and "her performance was original since the presenter played a character". The court thus dismissed the producer's argument that the presenter's performance was merely secondary in the overall show, holding that she made an original and personal contribution, and consequently reclassified the presenter's performance as a 'performer'.
After citing the provisions of the Intellectual Property Code concerning the conditions of eligibility for copyright protection, the appeal court – considering whether to grant the presenter compensation for her copyright – held that in this case it was not contested that:
"the employee had written the features she performed during the show; and that her features which dealt with the emotional lives of young women nowadays were original in both their expression and composition".
Reclassification of employment contracts
To justify the temporary employment, the production company claimed that:
- The show could be withdrawn overnight without any particular notice period;
- Since the employee had no television experience, the employer had to pay for training to allow her to acquire the necessary grounding;
- The employee had only a secondary role in the show; and
- The production company that employed her was a small unit with a modest turnover which could not offer her permanent employment or hire her for productions other than the show.
These arguments failed to convince the appeal court, which held that:
- The temporary nature of the show did not justify the use of a fixed-term contract;
- It had not been proved that the employee had been hired only for specific episodes, since it appeared from the exhibits that "the presenter's character for which she was hired had a constant presence in the several recorded episodes and it did not appear in any way that this presenter was merely temporary, particularly in a show which is a safe bet for the channel"; and
- It was clear from the filed documents that at the time that the fixed-term contracts were concluded, the intention of the parties was "on the one hand, for the employer to have at its disposal a presenter for the recording of a show daily broadcasted and without any termination anticipated and on the other hand for the employee to have a stable job as a presenter, as long as the show continued".
In consideration of the foregoing, the appeal court reclassified the five fixed-term contracts concluded for a period of five months as an open-ended contract, and thus reclassified the termination of the employment relationship as an unfair dismissal.
Once again, this decision draws attention to the need to take account of all provisions applicable to creative activities and the provisions of the Labour Code in production contracts.
For further information on this topic please contact Eric Lauvaux or Dorothée Simic at Nomos by telephone (+33 01 43 18 55 00), fax (+33 01 43 18 55 55) or email ([email protected] or [email protected]).