French Supreme Court (Cour de cassation), First Civil Chamber, 2 September 2026, No. 25-15.216
In this decision, the First Civil Chamber of the French Supreme Court reiterates that the requirement for a written publishing agreement is a rule of evidence rather than a condition of validity of the agreement. It therefore accepts that, in the absence of a signed agreement, the existence and scope of the transfer may be established by an extrajudicial admission – i.e. the acknowledgement of a fact outside court proceedings – provided that such admission makes it possible to determine precisely the scope of exploitation of the rights transferred.
In this case, an author had published several books with the same publisher between 2006 and 2015. A new book was subsequently published in October 2016, without a publishing agreement having first been signed.
Following several requests from the publisher, the company representing the author sent it, several months after publication, a draft agreement together with an invoice for an advance payment of EUR 150,000. The publisher nevertheless rejected the draft, considering that certain provisions departed from the parties’ previous practices. The company representing the author then requested that exploitation of the book cease, on the ground that, in the absence of a written agreement, such exploitation amounted to copyright infringement. The author and his company ultimately brought infringement proceedings.
The Court of Appeal dismissed their claims, holding that the existence of the transfer could be established notwithstanding the absence of a signed agreement.
Before the French Supreme Court, the claimants argued, in particular, that Articles L. 131-2 and L. 131-3 of the French Intellectual Property Code required written evidence of a publishing agreement and that the author’s conduct could not remedy the absence of an instrument of transfer.
The French Supreme Court dismissed the appeal.
It first recalled that, although Article L. 131-2 of the French Intellectual Property Code requires publishing agreements to be evidenced in writing, this requirement is not a condition of validity of the agreement but a rule of evidence. Accordingly, where no written agreement exists, reliance may still be placed on an admission, provided that it relates to matters of fact and makes it possible to define the scope of exploitation of the rights transferred in accordance with the requirements of Article L. 131-3 of the French Intellectual Property Code.
The Court then upheld the factual assessment carried out by the lower courts in light of the particular circumstances of the case. Several factors established the author’s consent to the exploitation of his work: he had approved the final proofs of the cover and front matter, taken part in the promotion and media coverage of the book, and actively supported its exploitation for nearly a year.
More importantly, this conduct was supplemented by the draft agreement sent to the publisher, which made it possible to determine precisely the terms of the transfer. The transfer concerned the exclusive reproduction rights in the work, for exploitation in French in several specified territories, for a period of one year and in return for remuneration amounting to 20% of the retail price excluding tax. These terms were also consistent with those set out in the previous agreements entered into between the parties.
The French Supreme Court therefore upheld the lower courts’ finding that the author had effectively consented to the transfer of his reproduction rights on those terms and, consequently, that copyright infringement had not been established.
The decision is noteworthy in that it clearly distinguishes the evidentiary formalities applicable to publishing agreements from the conditions governing their formation, while reiterating that the existence of a transfer in the absence of a signed agreement will depend on the circumstances of each case. Here, the decision was reached in a specific context: the book had been published with the author’s consent, and the author had subsequently participated in its exploitation and promotion for several months before a dispute arose regarding the financial terms of the transfer. In these circumstances, the absence of a signed instrument of transfer was not, in itself, sufficient to establish unauthorized exploitation where both the author’s consent and the precise scope of the rights transferred could be demonstrated by other means.
The decision does not, however, render the formal requirements of the French Intellectual Property Code ineffective, since an admission may only compensate for the absence of a written agreement if it enables the rights concerned, as well as the scope, purpose, territory and duration of their exploitation, to be identified with sufficient precision.
