Tribunal de grande instance [TGI] [ordinary court of original jurisdiction], July 5, 2000 (France)
Complaining Work |
Defending Work |
| Matthew Cooper
“The Lower we Fly” |
Christophe Mueller “Pond’s Nutrivits” ad |
Comment by Charles Cronin
This dispute involves a confusing cascade of liability and different counsel representing each of the defendants. Ponds [now owned by Unilever] hired Ogilvy & Mather to create a TV advertisement for one of its products; Ogilvy & Mather hired Bandits, a production company, to create a recording of the advertisement; Bandits hired O.Z., a sound recording enterprise, to create an audio recording of the advertisement, and Bandits and O.Z. hired Christophe Mueller, a free-lance musician, to create the music for the recording.
Mueller claimed his work could not infringe Cooper’s because Cooper had relied upon computer-generated sounds in creating his work. A creative, although seemingly far-fetched, argument that the court handily discarded. An indemnification cautionary tale: Bandits were left “holding the bag” because this enterprise had represented to Ogilvy and O.Z. that the musical portion of the advertisement was free of any infringement challenge. While the court did not award Cooper the 250,000 francs [just prior to the Euro era – roughly $50,000] he sought as “moral damages,” it did award plaintiffs Warner Chappell and Cooper, a total of 100,000 francs, for which defendants Mueller and Bandits were responsible. Query whether Bandits ever recouped its portion of the damages from Mueller.
We have not yet obtained a copy of the music Christophe Mueller prepared for the Pond’s advertisement at issue in this dispute. The judgment suggests, however, that the court readily accepted the opinion of the late Claude Pascal, its designated musical expert, that Mueller’s work infringed upon Matthew Cooper’s song, and that the disputed musical expression could not be found in works preceding Cooper’s. A conductor, professor, and composer of works in various musical genres, Pascal appears to have been an excellent choice for such forensic work.
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Judgment (July 05, 2000) (Attention: en français):PDF