A graphic created in 2007 a little character named "Carl". This affects society Awyse character who is an expert in the program for iPhone applications. In September 2009, the designer concluded with the company Awyse a "contract control and assignment Copyright on a work multimedia composition "on the character Carl and a multimedia work of composition. Meanwhile, the company Awyse concluded with a developer a contract for the transfer of copyright on a" multimedia application (software) dedicated to the iPhone based on the scenario "Carl" . This application
Talking Carl "is sold from December 8, 2009 on iTunes and the subject, April 30, 2010, from 598,150 downloads priced at $ 0.99.
Noting the operation of the application "Talking Carl" on Apple, the designer asked on February 2 2010 at the company to stop Awyse can download this application to products other than the Iphone. Noting in May 2010 the continued marketing of the application on the iPod and iPad, the designer decided in August 2010 the company assigned Awyse.
By decision dated November 16, 2010 after finding protection under the copyright of the character "Carl", courts have analyzed - under the lease - if the company Awyse had committed acts of counterfeiting.
For the court:
Under Article 6 of the "commission contract and the transfer of copyright on a multimedia work of composition "concluded September 17, 2009 between the company and Awyse Mr. X, it has assigned its rights, reproduction, representation, use, distribution, modification, translation and incorporation on the character Carl and the multimedia work "exclusively and solely to the creation, marketing and use of software on smartphones." In addition, Annex 3 of the contract "scenario and conditions Use "iPhone is a phone and given the scenario described functionality.
The company maintains Awyse that IPAD and the Iphone are smartphones because they can function with wifi enable phone and that the restriction to the smartphone is an error the editor of the contract.
It does not challenge the definition of the text given by the applicant, ie a smart phone, nor the fact that Apple allows its user to listen to music. The mere fact that in view of the article of August 18, 2010, from the site \u0026lt;01net.com> there is a Chinese gadget that turns into a phone and iPod with 150 prototypes have been used not only to establish that an Ipod, which is not a phone and has various technical features of it, is under contract smartphone. Indeed, following the reasoning of the company Awyse, any object with a gadget like a phone then it would be strictly interpret the contract is law between the parties and not to denature.
also result if the evidence in the debate that Mr X had knowledge downloading the application on iPod, it is not sufficient to characterize its consent to extend the contract of the assigned rights of as he complained of the inadequacy of technical suppor t.
It is not disputed by the defendant company that the marketing of the iPad, computer with a touchscreen, began May 28, 2010 so that the contract of September 17 could provide this support.
The defendant company, which fails to generate debate on its contract with the company Apple, do not produce proof of the impossibility to prohibit the purchase by the consumer application to support ipod or iPad. Indeed, the general conditions of sale on Itunes it produces, and which indicate that products can be stored on different devices, aimed at potential buyers. However, it follows the "developer's guide" to Itunes (version September 2009), paid to the issues by the applicant, who submits an application can select the carrier and so, therefore, exclude some.Accordingly, the Court considers that the company has committed acts of infringement by allowing the downloading of the application on the iPod and the iPad, while the creator had not authorized this use on the Iphone.
To assess the damage, the judges notes that "in view exchanges between buyers paid pursuant to the debates, some of them expressed their dissatisfaction because of its lack of compatibility with some models of iPod . They assess the damage so the author's moral up to 8000 euros.
In addition, the Court prohibited the company from exploiting the Awyse graphic work "Carl" on iPods and media Ipad under penalty of 1,000 euros per day of delay.
This classic solution can again emphasize the importance, in any contract of assignment of copyright to specify the purposes for which the exploitation rights are assigned.
Source: TGI Paris, 3ech, November 16, 2010, Yann X v. SARL Awyse and Simon Y.
Author: Benoit Tabaka - http://tabaka.blogspot.com 
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