New employers in the creative industries – guidelines to help you find your way
August 26, 2014
Updated on November 12, 2015
Creative projects often involve hiring, and using the work of, individual contributors (actors, engineers, journalists, composers, etc.).
Independently from the protection that may be awarded to the result of their work pursuant to the intellectual property laws, such individual contributors are first entitled to legal protection in their capacity as employees.
It is vital when conceiving and budgeting a creative project in France to have a full understanding of this protection, wherever originated (labor laws, regulations, collective bargaining agreements..).
Regrettably, given the important number of provisions of different levels and scopes likely to apply to each profession, and the (sometimes confusing) impact of additional provisions pertaining to the intellectual property field, this is not always an easy task.
We attempt to bring some clarifications below.
Preliminary clarifications regarding the context:
It is not uncommon in France for individuals to provide services and/or works for creative projects on an independent basis, i.e. outside any employment relationship.
However, employment agreements ensure a fair treatment for the employees during their term and the security of unemployment benefits afterwards, and the French lawmakers and administration are particularly protective of the members of the various professions in the creative industries struggling against economic precarity and abuses.
As a result, in certain cases the owners of creative projects (or their subcontractors) have no other option but to offer employment agreements to the various individual contributors.
This is the case for individuals pertaining to professions for which the laws have established specific presumptions of employment , as well as, more generally, for individuals called to work under conditions that characterize an actual employment relationship .
Offering employment agreements means that the negotiation of their specific terms will have to start from, and include, the most favorable advantages for the employees provided at the upper levels under the applicable labor laws, regulations and collective bargaining agreements (condensed to “cba(s)” hereafter), as we will see in more detail below.
Additionally, if the legal prerequisites are met, the result of the work provided by some of the collaborators , in their capacity as employees or not, may be protected by intellectual property rights that the beneficiary would need to acquire. The transfer of intellectual property rights would then obey to a different set of rules as set by the intellectual property laws and, where applicable, subsidiary union agreements .
When it comes to intellectual creation by employees it is commonly admitted that labor laws govern the working conditions and environment (e.g. type of contract – fixed term or permanent, working hours, safety, base salary for the time and effort spent providing the work, etc.) whereas intellectual property laws deal with the intellectual property rights in the work result (i.e. questions such as ownership, assignment of rights, compensation owed to the employee for the exploitation of the work/rights). In order to benefit from both the services and work results of their employees, employers should generally verify their obligations in each of these fields.
Sometimes, depending on the type of work provided by the employee, the delimitation between labor law and intellectual property law can fade .
We can easily see how the imbrication of the rules pertaining to these fields could be a source of confusion for employers.
It is beyond the forces and pretentions of this entry to provide a full picture of the applicable rules and agreements in both employment and intellectual property fields, in all entertainment sectors and for all creative or artistic professions.
Instead, we will: first, outline the approach and analysis an employer should use to identify the relevant labor rules for its business, and next, list and provide short comments on the most important cbas in force in the creative industries throughout France, to facilitate further orientation.
1/ FINDING THE RELEVANT EMPLOYMENT RULES
As a reminder, in France employees’ rights are protected under multiple tiers of texts with general or specific purpose: some of legal origin (such as the Labor Code and associated regulations) and other of contractual origin (such as the cbas entered at various levels: sector/profession/cross-profession or company/establishment level, and respectively national, regional or local level, and ultimately the individuals’ employment agreements).
– when entering into individual employment agreements, an employer needs to observe at minimum not only its duties per the provisions of legal origin – which are usually fairly straightforward, but also those arising under the specific cba(s) as may be applicable to its business – which are more difficult to ascertain, and
– in any case, the employer may choose to grant additional benefits  and undertake additional obligations in the employment agreements negotiated with each employee. So first, the company needs to identify the rules and understand the articulations between them.
1.1 The legal provisions
Most of the labor related legal (and regulatory) provisions are located in the Labor Code and we will not discuss them in this entry.
One category of provisions calls however for particular attention for the entertainment sectors: the one relating to the type of agreement to be offered to the collaborators: must this be a permanent contract, or can it be a fixed term contract?
The Labor Code sets in its section L1221-2 the general principle of the permanent contract, which is “the normal and general form of employment relationship”. Fixed term contracts are only authorized in certain cases and must remain exceptional. A specific type of fixed term contracts, authorized per section L1242-2, paragraph 3° of the Labor code, is the “contrat à durée determine d’usage” (abbreviated “CDDU”), that can be used in certain sectors where it is of constant usage not to propose permanent contracts to fill jobs which are temporary by nature. This contract is very popular in the entertainment sectors where the activities/projects are usually of short term or discontinuous.
However there are numerous abuses where jobs that have a permanent nature are occupied under CDDU. In such cases, not only the employees can obtain in court for their contract to be transformed into a permanent contract and/or money damages, but the employer incurs criminal sanctions (EUR3,750 fine, and in case of recurring infringement, EUR7,500 fine and 6 month prison term – sections L1248-1 and following of the Labor code).
Although the paragraph of the Labor code creating the CDDU exception refers to cbas negotiated between employers and employees to define the sectors where fixed term contracts are of constant usage, and although most cbas in the entertainment sectors set rules and limitations for the CDDUs, the provisions in such cbas should be received with caution. Indeed, when the contract is challenged before a court, the latter will not settle with verifying the compliance of the contract with the cba, but will rather analyze the factual elements and the actual necessity for the employer to use the exception of the CDDU.
1.2 The collective bargaining agreements
In order to identify the cba(s) applicable to its business an employer needs to verify:
(a) If there is a cba that has been extended by order (arrêté d’extension / élargissement) of the Ministry of Labor to the profession or sector representing the employer’s principal business activity, in its geographical area.
If this is the case, then the extended provisions of such cba (and of its amendments or attachments, if they have been extended according to the same procedure) automatically apply to the employer.
We stress that the criterion to take into account is the actual predominant business activity. The APE  code attributed by the INSEE  to the employer upon its initial registration with the CFE (Centre de Formalités des Entreprises) is only supplied for reference purposes and can be challenged by the employees or their representatives .
Due to this criterion of the principal business activity, the employer is subjected as regards its collective employment relationships with its employees to a single extended cba at the sector or profession level  and such cba benefits in principle to all of its employees. For example, an architecture office will have to observe the extended cba applicable to architecture services regarding all of its employees, irrespective of their job title or the existence of a different cba governing their profession (architects, accountants, workers, etc.) . However, there are exceptions to this principle: in certain sectors specific cbas are entered for specific categories of employees (e.g. separate cbas for management and for workers; or a specific cba for actors in the television sector) – in such cases the employer is obviously authorized to operate distinctions per such cbas.
Similarly, the cbas signed and extended to certain sectors (e.g. theatrical film production and audiovisual production) provide that the employer is subjected, in its relationship with the personnel that it hires to perform work outside its main activity, to the cba best corresponding to such work.
It is therefore important to read carefully the cbas as to understand the full extent of these exceptions and of their potential limitations (such as the necessity of reciprocal provisions in the alternate cba) in order to avoid the risk of falling under a voluntary commitment to abide by other cbas in addition to those automatically applicable (see paragraph b) below).
The cba drafting and extension process should ensure they are coherent: on the one hand each cba needs to contain a precise definition of its professional and geographical scope (section L2222-1 of the Labor code) and on the other hand, prior to extending a new cba, the Labor ministry is responsible for verifying its coherence with the existing ones . Should there be any doubt, the employer should request guidance from the local representatives of the department of labor.
It should be noted that the principle of automatic application does not mean that the cba or the order of extension become irrefutable. Indeed, in order to be extensible, a cba needs to fulfill certain conditions in terms of content and mandatory clauses (section L261-22 of the Labor code), and in terms of representativeness/relevance of the trade unions and employers’ organisations having negotiated its terms (section L2261-19 of the same code). Besides, to be valid between the signatories, the content of the cba needs to be lawful, i.e. compatible with the provisions of the laws, regulations and cbas of higher rank, and the summary examination performed by the Labor ministry in view of the extension does not have the effect of legally validating the cba or curing its potential legal flaws .
All these requirements are possible grounds to challenge the ministerial order of extension before the supreme administrative court (Conseil d’État) , or the cba before the judicial courts , and not just in theory.
As a recent example, at the request of five organisms representing a majority of film producers, the Conseil d’État has partially  suspended on September 6, 2013, by summary judgment, the application of a ministerial order dated July 1st 2013 extending to the entire sector the national cba of theatrical film production of 19 January 2012. The main ground for suspension was the claimed lack of representativeness for the entire sector of film producers of the sole association having signed the cba on their side , casting a serious doubt on the lawfulness of the extension order.
In light of these precisions it is preferable for an employer in need to know if, and what part of, an extended cba applies to its business to verify all information available relating to it.
(b) If the employer has directly or indirectly signed, or adhered to a cba, or has voluntarily committed to apply its provisions.
In such case, the employer is bound by such cba in addition to the cba applicable per paragraph (a), if any.
Cbas under this paragraph can be either cbas of any level (company/establishment , sector/profession/cross-profession or higher) that have not been subject to extension to non-signatories, or cbas that have been extended per paragraph (a) to a sector or profession that does not match the employer’s principal business activity.
In any case, a cba in this paragraph b) does not become binding upon the employer unless and until the latter
– becomes a contracting party by signing it or later adhering to it (directly or via an organism mandated to represent its interests – e.g. a syndicate) , or
– voluntarily submits to its provisions; such submission can be express or implied (e.g. through constant usage) but needs to be in any case unambiguous .
As an example, the Supreme Court considers unambiguous (and irrevocable) the employer’s will to submit to a cba to which it is not a contracting party whenever it (mistakenly) makes reference in one or more employment agreement(s) or employee payslip(s) to a cba other than the one normally applicable to its business pursuant to paragraph (a) above . However, in such case, the Supreme Court considers that the employer’s business remains governed by the cba applicable pursuant to paragraph (a) but that the employee(s) to which the employer has voluntarily committed to apply another cba may choose to evoke the latter.
As we have seen, an employer will be subjected at the same time to a set of laws and regulations, to the individual agreements that it enters with its employees, as well as to one or more cbas at different levels as may result from the combined verification under paragraphs a) and b).
1.3 How do all these texts coordinate?
The overall intent is for the most favorable terms for the employee to be contained in the most narrow / specific texts, meaning that cbas contain more favorable provisions than the laws and regulations, and employment agreements contain more favorable provisions than cbas. However, there are exceptions. In practice a lower level (i.e. more specific) cba is not always required to contain more favorable provisions than the corresponding higher-level cba , so there are cases where a cba can be more favorable than another in certain aspects and less favorable in other aspects.
In any event of overlapping provisions, the principle is that the advantages having the exact same scope and purpose cannot be cumulated  and only the one most favorable to the employees must be granted.
To decide of the most favorable advantage, the employers need to proceed to a global analysis of the advantage provided in each document and select the provision/text more favorable to all of the employees concerned . The Supreme Court has however specified on several occasions involving overlaps between provisions of different cbas that cumulating the advantages with the same scope and purpose was possible if specifically provided . We don’t see any reason for this exception not to apply to intersections with the provisions at the other levels.
2/ COLLECTIVE BARGAINING AGREEMENTS IN THE CREATIVE INDUSTRIES
This part is, as much as possible, structured per sectors listed in alphabetical order, and only focuses on the cbas that have been extended by ministerial order  (unless specifically provided, by “ministerial order” or “order” we mean an arrêté of the Ministry of Labor).
In some cases we position the subject further by referring to the existing union agreements extended pursuant to the provisions of the Intellectual Property Code (hereafter, “IPC”).
Note: we are quoting the French name of each cba and the link to access its content on Legifrance (the official free legal information website), however in reason of the generally numerous amendments, only some of which having been extended, it is advisable to seek more comprehensive information.
– the employers in the advertising business – categories listed under entries no. 77-10 (advertising creative and intermediaries) and no. 77-11 (advertising sales)of the 1973 French classification of activities and products (NAP) established by INSEE, and
– their employees – executives, creative staff, technical staff, workers.
Questioned about the extent of “advertising business” within the meaning of the cba, the Supreme Court has adopted conflicting positions throughout time: (i) the activity consisting of the distribution of adverts in people’s mailboxes must be distinguished from those of creation, intermediation and selling of advertising as defined in the two categories of the NAP classification mentioned above, only ones to be automatically covered by the cba ; (ii) however when a company has for main activity the distribution of free newspapers and adverts, it can be deduced that such company participates to the corresponding advertising campaigns and therefore is included in the scope of class 77-10 of NAP and of the advertising cba .
Note regarding intellectual property rights
> Authors of works of advertising (other than joint works of authorship) (writers, designers, photographers, etc.) – they are vested with author rights (economic and moral rights) in the work product; to use the work product the company needs to acquire the economic rights . Two case scenarios – employed and freelance authors: whereas employment contracts need to specifically provide the assignment of the rights to the employer (see however section L.132-24 of the IPC for audiovisual works) and the compensation due for such assignment, detailed for each type of exploitation of the work – which compensation will be treaded as a salary and subjected to social charges , the contract with a freelancer for the commissioned work of advertising is presumed (in the absence of provisions to the contrary) to operate the transfer of rights, in exchange for compensation to be also detailed for each type of exploitation  but which is subject to reduced social charges managed by the AGESSA. In both cases, the authors of advertising works are usually paid fixed sums in exchange for their rights  and there are currently no mandatory minimum amounts .
> Actors and performers (not including extras) – they have related (neighboring) rights in the result of their work, that need to be specifically assigned (see however section L.212-4 of the IPC for audiovisual works) subject to distinct remuneration in addition to the salary payable for their time and efforts . Such compensation is usually a fixed amount, delineated for each type of exploitation. The advertising cba has been entered before the 1985 law came to award to artists the specific protection of neighboring rights and therefore provides no specific compensation for such rights. But specific minima are provided in the more recent cbas as may apply to certain works of advertisement (advertising films – paragraph 2.4 a) below, television programs – 2.10 b)) and in the actor union agreements. In all events (and for all works, not just advertising), such compensation is considered a form of salary subject to social charges as apply to employers/employees if at least one of the two following conditions is filled: the material presence of the performer is still required to some extent, and/or the amount of the compensation is determined in correlation to the base salary paid for the work provided, and not to the exploitation of the work results. Payments awarded with neither of the two conditions above being filled are considered royalties, subject to reduced social charges, except that for audiovisual works (within the meaning of IP Code, i.e. incorporating theatrical and animation films) this privilege can only apply to the amounts exceeding the minimum amounts established in the relevant cbas . In practice the cbas generally provide for an increased base salary to compensate the related rights, which automatically triggers their qualification as salary.
It applies to architects and general contractors in the architecture businesses (i.e. those defined in the law n°77-2 of January 3, 1977 relating to architecture, including the type of companies referenced under class no° 74-2 A in the 2003 version of the French classification of activities (NAF) established by INSEE) and to their employees. Its initial scope has been prolonged by ministerial order dated Dec. 8, 2004 to the sector of general contractors in the construction business.
The cba is completed by specific agreements establishing the minimum wages in each of the 27 administrative regions . Revisions of the cba have been operated by a first amendment dated 28 June 2012 but the latter has not been extended to the entire sector and is only mandatory for the signatories.
– sectors: production of audiovisual works for entertainment, education or information purposes (including without limitation the production of television films and television programs, and corporate and advertising films – classes 92.1 A, 92.2B, and 92.1 B per the NAF 2003 classification). The cba does not apply to the sectors of production of animation films (see paragraph 2.4 c) below) or theatrical films (see paragraph 2.4 a).
– employers: the individuals or companies having as main activity to initiate, and undertake at their own risk and liability the production of audiovisual material;
– employees: all the employees of the producers, under all types of contract (fixed term, including in some cases the “CDDU”, or permanent). Are specifically included employees under CDDU hired for the sound production of music videos. However, are excluded the artists and performers employed in the audiovisual sector (see paragraph 2.10 b), as well as the musicians (for which a particular cba is still to be negotiated).
Ever since its conclusion this cba operated a wage distinction for the technicians hired for television films depending on the film budget. Higher budget films allowed for higher salaries to be paid to the concerned technicians. Despite successive alterations of the cba by way of two amendments entered into on February 12, 2007, then on November 15, 2007, both extended by ministerial orders, this distinction persisted. The technicians’ union SNTPCT has constantly challenged what it considered to be an inequality of treatment for equivalent work. The Paris court of appeals has finally cancelled on December 4, 2014 the most recent amendment of November 15, 2007 for infringement of the principle « equal work equal pay ». Logically, the Conseil d’État, that had stayed the proceedings on 23 July, 2010 awaiting for the judicial courts’ decision on the amendment’s lawfulness, should now cancel the corresponding ministerial order of extension dated May 21, 2008. In our view, as a result of the cancellation of the second amendment, all producers should observe the cba in its previous version resulting from the February 12, 2007 amendment (extended on July 24, 2007) – subject to the establishing compensation for each technician based on objective and verifiable criteria.
Notes regarding intellectual property rights
> Authors of audiovisual works – there are two types of authors in the audiovisual work: the authors of the work itself , and the authors of additional proprietary elements used in the work, if any (the work results of some of the technical staff could fall under this category). In accordance with section L132-4 of the ICP, the first assign their rights in exchange for a share in the revenues derived from the work – which is the rule for authors under French law, and the second, in exchange for fixed sums . In any case the remuneration needs to be detailed for each type of exploitation and there are no minimum amounts provided in the union agreements. However, specifically regarding scriptwriters commissioned for audiovisual works of fiction , a union agreement entered on December 20, 2012 provides certain protective measures concerning their remuneration, such as a limitation of the sums initially paid to them that can be considered as a minimum guarantee and recouped against their revenue share (the usual practice before was to recoup the entire amount). Such measures have been extended by an order of the Ministry of Culture dated May 6, 2013 in accordance with section L132-25 of the IPC. >
Actors and performers (excluding extras) hired for audiovisual works– pursuant to section L. 212-4 of the IPC, by entering into agreements with the producer of an audiovisual work, actors are presumed to authorize the former to affix their performance and exploit the audiovisual work (as such). The contract needs to establish a distinct compensation for each type of exploitation of the work. The minimum amounts for such compensation are provided in the cba under section 2.10 b) and, for dubbing services, they are determined by concurrent provisions in the union agreement DAD-R for dubbing services and the applicable cba (i.e. for 2013-2014, the exhibit dated February 5th, 2013, extended by order dated July 22, 2013, which is part of the technical services cba under paragraph 2.7 c) below). It is interesting to compare these two agreements, which provide arrangements “à la carte” with some or no rights included in the base salary and the possibility for the employer to purchase one or more rights for limited periods of time, with the cba for theatrical films, which sets minimum fixed amounts incorporating the salary for the work, as well as the compensation for the use of the work product without time restrictions.
The currently extended version of the cba is the one resulting from the ministerial order of extension dated March 31, 2015, with the exception, however, of its title III – subtitle II relating to extras, which remains applicable only between the signatories of the amendment of July 1st 2013 (its extension has been cancelled by the Conseil d’État on May 7, 2015).
It applies to the production of theatrical feature films and short films, but also of advertising films, which did not benefit from adapted provisions under the advertising cba.
The employers concerned by this cba are the French companies producing such films (such as, without limitation, those designated under NAF 2008 classes 5911C and 5911B); the foreign companies producing all or parts of such films in France, and the French production companies making available to foreign producers the staff and equipment necessary for their shooting of such films in France.
The employees concerned are all employees hired by the employers above pursuant to French laws, regardless of the place where the work is provided (subject, for shootings outside France, to local mandatory regulations); it should be noted that employees hired under contracts submitted to foreign laws and temporarily sent to work in France benefit for such period of time, of the most favorable terms in the cba pertaining to the matters referred to by section L1262-4 of the Labor Code (including wages).
It should be noted that the existing version is not complete and several categories of activities and employees have been left aside for later negotiation. This is the case for: technical staff hired for short films (title I, section 1), actors hired for short films and advertising films and musicians hired for theatrical films (title III, section 1.I.1), extras hired for advertising films (title III, section 2.I.1), and permanent staff in all sectors within the scope of the cba (title I, section 2). Furthermore, although the declared intent of title II is to encompass the employment of technical staff hired for advertising films, its content does not follow up, leading to think that, with maximum three exceptions, such staff does not benefit from the minimum salaries provided in the cba. Indeed, the definitions and job titles in section 2 of title II, as well as the minimum base salaries provided in the corresponding exhibit 1 concern almost exclusively the theatrical film crew as each of title has the word “cinéma” appended at the end. Only the advertising film director (“réalisateur de films publicitaires”, as opposed to “réalisateur cinéma”) benefits from specific provisions, and potentially the foley artist and foley artist assistant, whose job titles are not reduced to “cinéma”.
Interactions with the other cbas  – whenever the employers designated above hire employees to:
– produce an audiovisual film, the relationship with the employees pertaining to the film crew is governed by the cba of audiovisual production (section 2.1 above) and with those pertaining to the cast, by the cba of artists/performers hired for tv programs (section 2.10 b) below),
– produce an animation film, the employment relationship is governed by the cba relating to the production of animation films,
– (i) for the technical staff : provide a technical service (outside the production of a film by the employer), or produce an audiovisual program not intended for commercial exploitation and in which the employer does not own the title, and (ii) for the actors/performers : provide dubbing services, then the employment relationship is governed by the cba relating to the technical services. 
The negotiation of this cba between the guilds representing technicians and artists and the associations of producers has been long and painful. After being extended to all production companies and then challenged before the Conseil d’État by the non-signatory associations of producers and after partial suspension by the Conseil d’État of the order of extension in September 2013, the negotiations have continued and an amendment has been signed on October 8, 2013 (and subsequently extended). The associations of producers that had initially refused to sign the cba have subsequently adhered to the amended version.
After the Conseil d’Etat has cancelled on February 24, 2015 the ministerial order of extension of July 1st, 2013 for lack of representativeness by the API of the film producers, the labor ministry has rapidly enacted on March 31, 2015 a new extension of the cba and of its two amendments, to which more unions had adhered in the meantime. The syndicate of the advertising producers APFP currently challenges this measure before the Conseil d’État as it considers that the text in force is not sufficiently adapted to the specificities of the advertising sector. The APFP has nonetheless signed the cba as well as its amendments. Pending a new decision of the Conseil d’État, these provisions are mandatory for all advertising producers.
Negotiations are however not over as certain provisions of the cba remain to be further specified in particular regarding short films and advertisement films.
The main particularity of this cba is that it contains, on an experimental basis, derogatory measures for small budget feature films. The independent film producers have struggled to defend this advantage in order to help preserving the cultural diversity within the French film industry, a hard task in a context where French laws and cbas impose non-negligible minimum wages for cast and crew. This transitory mechanism allows producers of feature films with an initial budget of up to EUR3M (incidentals and producer’s share of investment on top), and of documentaries with an initial budget of up to EUR0.6M (same remarks), subject to additional requirements, to choose to pay to their higher paid crew and actors for such films salaries below the thresholds provided in the cba, if they are granting them in the same time a share in the net receipts of the film to compensate the risk they agree to take by working on the project.
Note regarding intellectual property rights:
> As regards French intellectual property laws, theatrical films are included in the category of audiovisual works, so the remarks relative to the assignment of rights under section 2.3 are entirely applicable to such films.
> Authors of theatrical feature films: A union agreement dated December 16, 2010 (partially extended by an order of the ministry of culture dated February 7, 2011) provides standard definitions such as “producer’s net receipts”, or “cost of the film”, with the aim of increasing transparency within the sector of theatrical film and harmonizing the calculation of revenue shares for film authors.
> Actorsand performers (excluding extras): the compensation to which they are entitled in consideration for their neighboring rights is established in the cba as a portion of the base salary (i.e. 67% of the base salary remunerates their work and the right to affix their performance, and the remaining 33% remunerates the film related rights, including ancillary rights). They also receive, pursuant to a union agreement dated June 7, 1990, extended by order of the Ministry of Culture of October 17, 1990, an additional compensation to be divided among them, in the form of a revenue share of 2% in the film receipts payable by the producer to the ADAMI after recoupment of the production costs. Of course, individual negotiations may result in more favorable terms. See note 35 for the qualification of royalties.
b) Theatrical (other than animation) film distribution:
The employers subjected to this cba are those having as main activity the production of animated films and programs (intended for theatrical but also tv, video, internet and mobile phone distribution) and animated corporate and advertisement films. “Production” should be understood as including creation, development, financing and manufacturing, meaning that subcontractors providing as main activity technical services for the production of animation films are bound by the cba.
Note regarding intellectual property rights:
> As regards French intellectual property laws, animation films are included in the category of audiovisual works, so the remarks relative to the assignment of rights under section 2.3 are entirely applicable to such films.
Note: Pursuant to a legal presumption, models necessarily work under an employment agreement. Modeling agencies holding a license delivered by the prefecture are the only ones entitled to place models for a fee, but clients are also permitted to contract directly with models as their employers. The advantage of using a licensed modeling agency is that, as direct employer of the model, it handles all formalities and this is particularly interesting when the model is a minor under 16: in such case, whereas the employer contracting directly with his/her parents or legal guardians would typically need to obtain a prior authorization from the prefecture for each project involving the minor (section R. 7124-1 of the Labor code), the modeling agencies specially approved by the prefecture to employ minors are exempted from such authorization.
The cba contains provisions relating to both relationships, between the model and the agency, and between the agency and the client. The minimum wages are established by agreements entered into each year in furtherance of the cba.
In 2015, the minimum gross salaries are those provided in the agreement of March 25, 2015, extended by ministerial order dated August 18, 2015 .
The cba also reminds the principles according to which, when mandated by the model (separately from the employment agreement), the agency sells, on his/her behalf, authorizations to use his/her image/likeness. Although no actual numbers are given, the cba contains a list of criteria to be taken into account when determining the price for such authorizations. See note 35 for the potential qualification of royalties of such amounts.
A particular attention should be accorded to the actual work entrusted to the model, and the result of such work: indeed, if the model is actually performing a work instead of merely presenting a product he/she is vested with neighbouring rights in his/her capacity as performer, which the client will need to explicitly acquire (instead of the mere image/likeness rights) in accordance with the intellectual property laws.
– employers: individuals or companies having as main business activity the production, publishing and distribution (other than retail and wholesale) of sound and video recordings of music and/or humor
– employees: all categories (permanent staff, technicians, principal and non-principal artists / musicians).
The cba establishes for each and all categories of employees minimum salaries for the work provided (the current minimum wages extended at national level are those established by the agreement of 14 December 2012 – ministerial order dated May 24, 2013).
In addition, the cba addresses to a certain extent the issue of neighboring rights vested in some of the artists for their performance and that the employer needs to acquire in order to lawfully exploit the work product. According to its Exhibit III, title III, certain non-principal artists (mainly including session musicians) may assign to the employer their neighboring rights via detailed assignment clauses inserted directly in the employment agreement. While the compensation due to such artists for certain rights/exploitations is considered to be included in their base salary (it is the case for the rights to affix the performance and exploit the resulting phonogram commercially – except through rentals but including streaming and downloading),other rights (rental of tangible copies of the phonogram, synchronization, etc.) are assigned in consideration of additional compensation of two kinds: (i) fixed base compensation for which the cba provides minimum levels established as a percentage of the base salary (and which is considered as salary), and (ii) a share in the net revenues collected for record producers by their collective management organisms (and which is considered as royalties).
These provisions do not apply to principal artists (defined in the Title I of the cba as those having entered an exclusive contract with the producer, or whose absence is of such nature as may render impossible the recording planned by the employer, mainly including singers and soloists), as they have more leverage in the negotiations with the employer and usually transmit their rights in exchange for a share in the retail price of the records, or in the producer’s net revenues. Their compensation is not treated as a salary but rather as royalties – section L7121-8 of the Labor code and instruction of 2012 of the Labor Ministry referred in note 35.
Note: This cba has been negotiated for over six years and its extension to the entire sector, although greeted by the trade unions and employers’ organizations, has been, and continues to be violently contested by one of the artists’ collective management organisms, SPEDIDAM. SPEDIDAM represents the interests of “non-principal” artists . In this capacity, it has attempted on several occasions to have the exhibit III, Title III of the cba (sections 21 and following) annulled.
For SPEDIDAM, the mechanism of assignment of rights instated in respect of non-principal artists – most of which have minimum or no leverage to negotiate with the producers a reservation of rights or higher compensations – meant sentencing them to a systematic and forced assignment of all of their neighboring rights in exchange for minimum salaries.
While such position may be defendable, especially if the employers commit abuses (such as the borderline practice of having musicians sign agreements where all possible rights are assigned via pre-ticked boxes), and although now the burden of negotiating assignments of different scope and more convenient rates has been in practice transferred to artists, the cba has the merit of bringing stability in the sector.
Indeed, prior to its extension, the common practice was for non-principal artists to sign simplified presence forms (“feuilles de présence”), which operated authorizations strictly limited to the first declared use of the recording. For instance, when recording music for a theatrical film, the authorization by default was limited to the theatrical distribution, far from covering all exploitations of the film as the producer may reasonably expect. The employer had the hard task of securing the necessary additional assignments via subsequent agreements, more difficult to negotiate after the recording took place or the exploitation started, and was often exposed to infringements suits.
It is this stability and the overall interest for the artists in the sector in benefitting from a specific cba that have been for now privileged by the Conseil d’Etat and the Paris court of first instance (decision on the merits dated March 23, 2013) to uphold the cba and its Exhibit III.
The appeal lodged by the SPEDIDAM against the decision of the Paris court quoted above has been rejected by the Paris court of appeals on October 9, 2014.
b) Music publishing – two cbas extended on June 27, 1985:
Unlike the more recent cba for employees, the cba for management has a broader scope, i.e. music publishing in all media, and the Supreme Court had approved in 1998 the request of a creative executive terminated by a music publisher (publishing music in all media) to benefit from such cba . Possible interactions may take place with the 2008 cba for sound recordings.
> Some music activities are governed by the « Performing arts » cba (next section).
– employers in the private sector having performing arts as main activity and who create, host, produce, present on tours, or distribute live performances (defined as requiring the presence of spectators and of at least one performer presenting an artistic work). The cba applies to the employers holding a French license as “entrepreneurs de spectacles vivants” , whether they mainly manage premises intended to host live performances, or produce shows or tours, or distribute shows…
– their administrative, artistic and technical staff, for all types of agreement. This cba has regrouped and replaced three preexisting cbas in the live music, theater (partial replacement only) and performing arts sectors.
Its scope extends to the public entities, and the entities of private law, having their top management appointed by the national or local government, and/or having at least one official within its decision-making bodies, and/or using a label awarded by the state and/or receiving direct subventions from the state or regions under multiannual financing agreements. It does not apply to the employers covered by the cba of 2012 above, to national theaters, to private entities without commercial purpose that mainly develop activities of social interest (education, information, culture, entertainment). The cba is also not applicable in respect of employees of the state and local authorities.
> Employers in the fields of performing arts should particularly be aware that unless specifically provided, the employment contracts for the actual performance do not imply any authorization from the artists and performers to record the performance and use the recordings. Additional authorizations must be secured against payment of separate remuneration.
Scope: employers in the private sector having for main activity the services concurring to the technical conception of the content. It specifically excludes: the production of audiovisual and animation films, the production and distribution of theatrical films, the exploitation and management of movie theaters, the activities of cable and network constructors and operators, public television operators, telecommunications, producers and distributors of performing arts. Its section 1.3 provides the applicable rules governing the possible interactions with the other cbas and paragraph 1.1.3 specifically provides that whenever an employer is at the same time licensed as “entrepreneur de spectacle vivants” and certified to provide technical services, it will need to apply to each of its performance projects the cba (among the technical services cba and the performing arts cba) governing the activities that the employer is actually providing for such performance project. Obviously this distinction will not be practicable regarding the permanent employees, who will automatically benefit from the cba governing the main business activity.
Scope: employers having their main business in the photography field (includes photo studios but also retail stores selling photographs and small laboratories where photographs are developed and sold and which can also accessorily sell consumables). It does not extend to film laboratories (qualifying under the technical services cba above), optical shops, or industrial laboratories developing photographs collected through intermediary shops (more likely to qualify under the cba applicable to chemical industries). A new revised version of the cba has been entered into on 13 February 2013 in view of replacing the old cba, however the newer version has not been extended and is only compulsory for the signatories.
– employers – book publishers (sheet music publishing excluded) based in France; the preparation phase for the publishing of the digital books is included, if identical to the one employed for the paper version (in terms of content, layout, validation, and contracts with the author) and is not accompanied by other digital activities such as creating a DVD or software or website or processing digital data.
– employees – all their employees regardless the type of contract, except for the travelling salespersons; specific provisions apply to home workers and proofreaders working from home
b) Press, magazines – there are many cbas but none extended at this stage.
The cba applies to the following categories of employees: (i) professional journalists (i.e. those exercising their main, regular and remunerated professional activity with one or more periodic or daily publications or press agencies, or broadcaster, from which they draw the majority of their financial resources – this definition includes correspondents in France or abroad receiving fixe salaries), and (ii) alike, i.e. direct collaborators of the editorial staff – editors-translators, stenographers-editors, reviewers-editors, reporters-illustrators, reporters-photographers, excluding however advertising agents and all occasional collaborators.
Note regarding intellectual property rights
Section L132-37 of the intellectual property code provides that the employer of a professional journalist may use his/her work results (text, illustrations, pictures, drawings, etc) in the publication for which it was ordered on all media for an initial period of time to be established by a cba against payment of the salary without any additional charge. For any use after such period, or outside such publication, a complement needs to be paid to the journalist in consideration of his/her author rights, the minimum amount of which needs to be established by collective negotiations. For periodicals an agreement has been signed to such effect on November 26, 2012, but it has not been extended.
This cba applies to the employers that operate a specialized channel made available to public by cable, satellite, digital terrestrial network or any other means of digital communication in accordance with the authorization received from the Audiovisual Council (CSA) or the agreement entered with the CSA (NAF category 922 E), as well to the operators of the national parliamentary channel. The cba explicitly excludes employers having as main business the commercial distribution of broadcasting services, the publishing of sound or visual records, the production of audiovisual and theatrical films, as well as those governed by the cba relating to television services in the public sector. As of 2010 it equally applies to local television broadcasters that do not use frequencies assigned by the CSA but have been authorized by, or have entered into specific conventions with, the CSA in order to broadcast.
It applies to the following categories of employees: actors (including for voice-over and off-camera commentary) and performers of all kinds (opera artists, choreographers, variety performers and cabaret artists, stuntmen, puppeteers, chorus-singers), excluding extras, extras managers, light stand-in and musicians, hired for television shows.
The current minimum wages are those established by an agreement dated December 20, 2013, extended by an order dated August 1st, 2014.
As briefly mentioned under 2.3, regarding the neighboring rights, this cba provides an arrangement “à la carte” with some rights being included in the base salary and the possibility for the employer to purchase one or more additional rights (called “utilisations secondaires”) for limited periods of time. The rights included are the first broadcast in France on all media and by all broadcasting mechanisms available simultaneously, as well as additional rights for non-profit usages (see articles 5.2 and 5.3 for more details). All other uses are considered secondary uses and the minimum compensation owed to the artists for such uses is established as a fraction of the salary initially paid for the performance, thus triggering the qualification of salaries per section L7121-8 of the Labor code and the subjection to the corresponding social charges.
 Such as performers (“artistes du spectacle” in the French Labor code – broadly defined to cover all types of performers – including extras, but also stage directors) – sections L7121-3 and subs. of the Labor code, professional journalists working for print (including digital) media companies – section L7112-1 of the same code, or models – section L7123-3 of the same code. The presumptions of employment may be reversed in some cases, however circumstances such as the amount of the compensation or the payment terms, or the different title agreed by the parties for the contract, are irrelevant.
 It is commonly accepted that an employment relationship necessarily involves subordination in the sense of power of the employer to give directives to the employees, to control the performance of their tasks and to sanction misbehaviors.
 Protection can extend to each individual contribution and/or to their resulting combination (e.g. the joint work within the meaning of Title 17 of the US Code, roughly equivalent to the French “oeuvre collective”, or the collective work, roughly equivalent to the French “oeuvre de collaboration”).
 Guilds and collecting societies representing the interests of authors and artists can enter into various types of agreements in accordance with the provisions of the intellectual property code. We refer to them as “union agreements” to avoid confusions with the cbas pertaining to the labor field. Such agreements only apply to their signatories, unless they are extended by order (arrêté) of the Ministry of Culture, in which case they become mandatory for all the companies in the relevant industry. A few examples (i) for employees: union agreement of June 7, 1990 regarding the performers engaged in the production of theatrical films, extended to all theatrical films producers by a ministerial order dated Oct. 17, 1990, and union agreement of January 6, 2005 regarding the rights of performers providing dubbing services, as subsequently amended and recently re-extended by a ministerial order dated April 23, 2014 – both enacted pursuant to section L 212-8 of the Intellectual property code regarding performers; and (ii) for authors who assign intellectual property rights independently from an employment relationship: union agreement of December 16, 2010 for transparency in the cinema industry (partially extended by an Order dated February 7, 2011), enacted pursuant to section L 132-25 of the Intellectual property code.
 Sometimes the employer is directly vested with the intellectual property rights in the work results and does not need to pay any compensation in excess of the base salary to use them (e.g. software code, contributions to joint works of authorship, writings of professional journalists employed by print media companies – assignment limited in time and space in this last case). Sometimes, although distinct compensation needs to be paid to the employee for the use of his/her work, such sums are considered salary and subjected to social charges from both the employer and the employee (the case of performers). In other cases, although the intellectual property code provides the principle of distinct compensation to be paid to the employee for the use of his/her work results, such compensation is fixed in cbas pertaining to labor law, and the amounts are considered salary and subjected to social charges from both the employer and the employee (the case of performers and musicians).
 Subject however to the legal limitations such as the principle of equal treatment
 An abbreviation of “activité principale exercée”
 National institute of statistics and economic studies
 Supreme Court, Labor division, Nov 16, 1999, n°98-60356. This implies that the employer who has more than one business activity cannot choose between the cbas applicable to its various activities – Supreme Court, Labor division, November 26, 2002 (no. 00-46873). Any choice of a cba other than the one applicable to its principal business would be interpreted as a voluntary commitment of the employer to submit itself to both cbas – see paragraph b) for the effect of such voluntary commitment.
 See for an example – cleaning lady employed by a public notary office and benefitting from the national cba of the public notaries – Supreme Court Labor division, May 4, 1999, n°96-44778.
 Conseil d’État, March 4, 1960, Féd. nationale des industries chimiques
 Supreme Court, 2nd Civil division, July 12, 1963 and July 20, 1964
 Section R311-1, 2° of the Administrative justice code
 Decisions quoted under 13 above. Also, Conseil d’État, Dec. 23, 2010, n° 328103, deferring to the judicial courts the analysis of Exhibit III of the 2009 cba (performers in the phonographic industry – see paragraph 2.6 a).
 I.e. regarding only the extension of an exhibit specific to small budget films, which was not completely finalized and agreed upon at the time the extended cba entered into force.
 The API (Association des Producteurs Indépendants), composed of the powerful Gaumont, MK2, Pathé and UGC which, based on their turnover, can arguably be considered to have as main activity the distribution of film or the management of movie theaters rather than the film production
 Under certain conditions, employers have the legal obligation to annually initiate negotiations at company level (sections L2242-1, L2242-8 of the Labor Code) and incur criminal sanctions if they fail to do so (sections L2243-1 and L2243-2 of the Labor Code).
 Sections L2262-1 and L2261-3 of the Labor Code
 This is not the case when the company’s internal regulations simply refer to a cba without implying the employer’s intent to apply its provisions – Supreme Court, Labor division, Sept. 23, 2009 n°08-40114
 Supreme Court, Labor division, March 17, 1993, no. 89-40716 and July 18, 2000, n°97-44897
 Sections L2252-1, L2253-1, L2253-3 of the Labor code. Some of the sector cbas provide that lower-level cbas can only contain more favorable measures (e.g. the national cba for performing arts in the private sector).
 However, do not have the exact scope and purpose and therefore may be cumulated the paid leaves provided in a cba in consideration of the employees’ seniority, and the additional annual leaves provided in a new law – Supreme Court, Labor division, October 6, 2010, n° 09-42769; similar decision for advantages under a cba and an employment agreement – Supreme Court, Labor division, June 13, 2012, n°10-27395.
 Decisions of the Supreme Court, Labor division, dated January 25, 1984, n°81-41609 (referring to the interests of all employees), and Jan 17, 1996, n°93-20066 (comparison of each individual advantage on a global scale and not by referring to each employee)
 Supreme Court – Plenary Assembly, March 18, 1988, n°84-40083 and October 24, 2008, n°07-42799
 For non-extended cbas that it has not entered personally the best way for an employer to obtain the information is to contact the organism to which it is affiliated and which is a contracting party.
 Supreme Court, Labor division, March 13, 1996, no. 92-43820 – this 1996 decision marks a turn in the Supreme Court’s interpretation of the scope of the advertising cba, as on several occasions in the precedent years, the Court had admitted claims against the same employer based on this cba
 Supreme Court, Labor division, May 13, 2009 n° 08-41.399
 Moral rights cannot be assigned or waived under French law
 Sections L242-1 and L311-2 of the Social Security Code and constant case-law
 This is an exception to the general principle according to which authors are entitled to a share in the results and proceeds of their work, due to the fact that advertising works usually generate no direct revenues (section L131-4 of the IPC)
 Although the possibility of union negotiation is provided in section L132-31 of the IPC, no agreement has been reached. A commission presided by a magistrate had adopted a decision on 23 February 1987 setting calculation bases depending on the type of exploitation, but they were largely ignored in practice because they were too complex and not suited for exploitations such as on television or over internet.
 Section L212-3 of the IPC in general and section L212-4 for audiovisual works
 Interpretation of sections L212-4 and L212-6 of the IPC and L7121-8 of the Labor code – these texts may seem contradictory to a certain extent and scholars are divided as to their exact coordination. The Labor Ministry has published an instruction in 2012 on the criteria to be used by the social security organisms in determining if the amounts payable to actors and models hired for the production of theatrical films and sound records can be considered advances against royalties and royalties rather then salaries (Circulaire N° DSS/5B/2012/161 du 20 avril 2012 relative au régime social des redevances et avances sur redevances) – similar instructions for the advertising sector are expected.
 The number of mainland regions is expected to be substantially reduced this year (according to a first vote by the National Assembly on July 23, 2014), which could lead on the long term to more harmonized levels of remunerations
 See the full text for coordination with the other national cbas for the various jobs offered under CDDU.
 These are the main contributors and the list provided in section L113-7 of the ICP is without limitation: the script writer, the authors of the adaptation and dialogues, the writer of the music composed for the work, the director, and for derivative works, the author of the underlying work
 This is another exception to the general principle according to which authors are entitled to a share in the results and proceeds of their work, justified by the non-substantial character of their contribution
 Applicable to works primarily intended for exploitation on tv and internet – television films and series, web films and web series (excluding series of episodes of up to 5 minute length)
 Most are provided subject to reciprocal provisions in the other cbas
 Convention collective nationale des entreprises techniques au service de la création et de l’événement du 21 février 2008 – Brochure no. 3355
 Effective as of its official publication on September 1st, 2015.
 Initially defined as those whose names were not included in the disc label or the film credits, and since 2004 defined as all artists other than the singers, soloists and conductors – which are considered “principal artists” and whose interests are represented by another collecting society, the ADAMI.
 Supreme court, labor division, July 16, 1998, no. 9645321