Authorship of films and implementation of the Term..., E.I.P.R. 1994, 16(8),...

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Authorship of films and implementation of the Term Directive:
the dramatic tale of two copyrights
Pascal Kamina

Table of Contents

Present Assumption

E.I.P.R. 320 Audiovisual Works as Dramatic Works

Authorship of Dramatic Audiovisual Works and Implementation of the Term Directive

Journal Article

European Intellectual Property Review

E.I.P.R. 1994, 16(8), 319-322

Subject
Intellectual property

Other related subjects

Media and entertainment

Keywords
Authors; Copyright; EEC law; Films; Time

Legislation cited
Directive 93/98

*E.I.P.R. 319 On 29 October 1993, the Council of Ministers adopted a Directive harmonising the term of protection of
copyright and certain related rights. 1 The directive fixes the duration of protection to the highest existing level in any Member
State: life of the author plus 70 years for most copyright works, and 50 years from execution, fixation or publication for
performers' and producers' rights. It contains special provisions regarding films in its Articles 2 and 3.

Article 2, headed "cinematographic or audiovisual works', specifies that the principal director of such work is to be regarded
as its author or one of its authors, Member States being free to designate other co-authors (Article 2(1)). The protection of
cinematographic and audiovisual works will expire 70 years from the death of the last of the following persons to survive,
whether or not these persons are designated as co-authors: the principal director, the author of the screenplay, the author of the
dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work (Article 2(2)).

Article 3(3) provides that the rights of the producer of the first fixation of a film shall expire 50 years after fixation or 50 years
from the earlier date of either its communication to the public or its publication, if any.

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It is said that the implementation of these provisions, due by 1 July 1995, will require substantial amendments to existing
UK law in the area of film copyright. 2 How substantial these changes will be depends on the state of the present law giving
copyright in films and in their component elements. It is submitted in this opinion that, despite a general agreement as to its
content, the regime of protection of films should be carefully re-examined.

Present Assumption
The present assumption under UK copyright is that the producer is the sole author of a film.

Cinematographic and audiovisual works are not given protection as such, but through the copyright on their recording, that
is, the "film' under section 5(1) of the Copyright, Designs and Patents Act 1988. The producer is granted authorship of this
film by section 9(2) of the Act. Accordingly, since the author of the film is the "person by whom the arrangements necessary
for the making of the film are undertaken', the question of joint authorship in the film can only arise among co-producers. In
other words, the director and authors of the component elements (script, scenario, music, decor and so on) are deprived of any
copyright interest in the final cinematographic or audiovisual work.

Creators of the contributory works are nevertheless given separate copyrights in their contributions, each measured by reference
to the life of the individual author.

On this assumption, the effect of the Term Directive should be the following:

The director should be given a separate copyright from the producer's, with normally a longer term: this new copyright should
be in the audiovisual work, as distinct from its recording. The requirement that the term be measured by reference to the
lives of other contributors does not necessarily lead to those contributors being given an interest in the final work, that is, a
joint authorship in the new copyright. On usual UK premise, if Parliament does not designate other co-authors, the separate
copyright thus created could be joint only among co-directors.

But what if, despite the general premise, the director and contributors are already given a copyright interest in the film? More
precisely, what if UK law already treats the audiovisual work as a composite entity in the form of a dramatic work? There
would already be a second copyright to be taken into consideration.

*E.I.P.R. 320 Audiovisual Works as Dramatic Works

Under the 1911 Act, cinematographic works could seek protection as series of photographs but also as dramatic works, since
their definition included "any cinematograph production where the arrangement or acting form or the combination of incidents
represented give the work an original character'. 3 Accordingly, in Milligan v The Broadway Cinema Production, 4 it was held
that there may be separate and independent dramatic copyrights in (a) a musical sketch, (b) a film scenario adapted from such
sketch, and (c) a film produced from such scenario.

The 1956 Act expressly excluded cinematographic works from the definition of both photographic and dramatic works, and
gave a Part II Copyright in their recording to the film producer: the rationale was clearly to avoid multiple claims for authorship
in what are, in essence, composite works, while complying formally with the provisions of the Berne Convention. 5 To take
the same example as above, from 1956 onwards there may be separate and independent copyrights in (a) a musical sketch,
(b) a film scenario adapted from such sketch and (c) the recording of the audiovisual work produced from such scenario, but
not in the audiovisual work itself. 6

This scheme is said not to have been modified by the 1988 Act. 7 However, in the new Act, although audiovisual works are
still expressly excluded from protection as a series of photographs, 8 the exclusion has been removed from the definition of
dramatic works. 9 Moreover, it is now clear that the fixation of a dramatic work can take the form of a recording on film. 10

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One must then admit, as some authors have suggested, that a door has been opened for the courts to consider claims for protection
of audiovisual works, as distinct from their recording, under the heading of dramatic works. 11 But can audiovisual works
meet the test of dramatic works?

There is no comprehensive definition of a dramatic work in the 1988 Act and in the previous Acts. 12 Nor is there any modern
UK authority on the scope of such works. Lord Bridge in the Green case 13 seemed to follow the general opinion in defining
drama as a work capable of being performed: "a dramatic work must have sufficient unity to be capable of performance'.

The term "performance' is of course not to be taken as meaning something as large as "any mode of visual or acoustic
presentation' in the sense of section 19(2)(b) of the CDPA. This would be absurd, since virtually all copyright works are capable
of being "performed' in that sense. Some authors suggest that a dramatic work is a work to be performed by acting or dancing:

Where it is necessary to distinguish a dramatic work from a literary one (which it rarely is), the essence of the distinction
would seem to be that a dramatic work is something to be performed by acting or dancing whereas a literary work is merely
something to be read or recited (and a musical work something to be played or sung). 14

This view, which fits plays and works of dance or mime perfectly well, is too restrictive with regard to long acknowledged
dramatic works such as film scripts. If the film script is a dramatic work, how could its nature change if it is written for an
animated picture, a picture featuring animals in which real actors, if any, play only a small part, featuring 3-D or image-by-image
animated puppets, or mixing all that? Acting is not the key word. The key words are action and movement. It is submitted that in
a more precise definition, a dramatic work is a work created in order to be communicated in motion, that is, through a sequence
of actions, movements, irrespective of the technique by which this movement is retrieved or expressed, 15 this communication
in movement being the "performance'.

This view was adopted in the series of US cases which, given the silence of the 1909 Copyright Act on the subject, held that
cinematographic works should be considered as dramatic works. 16 This is certainly true when we apply this definition to
fictional cinematic works. The work of their creators, like the work of the author of the written play, the work of dance, mime
or the script is to express a theme, an idea, a story or an emotion through sequences of actions and/or movements in front of
the public. This final audiovisual work cannot be reduced to the dramatic contributory work constituted by the script, since
it is obvious that new elements have been added, which are included in the larger dramatic work. 17 In that case, the final
*E.I.P.R. 321 cinematic work is not the mere performance of the script, but its visual translation, interpretation, that is, a
new derivative work.

What if the audiovisual work consists of filming a live play for television? The recording in a film is undoubtedly a fixation
of the dramatic work constituted by the live play; but what about a larger audiovisual work made from the contributions of
the director, cameraman, or editor? It is submitted that this audiovisual work will not, in most cases, be an original dramatic
work since it does not give a new and original expression to the play: even if it differs by its choice of shots, introduction of
close-ups, cutting of some parts of the play or inserts of views of the audience, it is unlikely that these modifications will be
considered original and substantial enough to give rise to a new original derivative work. 18 Conversely, Kenneth Branagh's
film "Much Ado About Nothing' is not a mere presentation, performance or copy of the play or of the film script derived from
it, but a larger original dramatic work.

To the same extent, newsreels and TV shows are unlikely to qualify as dramatic works, since they are mere presentations
(performances) of protected or unprotected pre-existing or live elements, contributions of their creators being not original or
substantial enough to give birth to an original dramatic work. However, documentaries could be protected as dramatic works
if the choice, the sequencing, the comments and other elements added to the preexisting documents give the final work an
original character:

For example in the case of a natural history documentary great skill and care will normally go into selecting the subject matter
and the manner in which the film is shot and then into editing the final product. The resulting film will be more than just a
record of naturally occuring phenomena but will have its own "story' and frequently will be designed so as to provoke sympathy
or awe in the mind of the viewer. 19

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At the end of the day, determination of the audiovisual works which are offered protection under the heading of dramatic
work does not seem to raise special difficulties, and implies application of the concept of originality as for any derivative work.
Hence, like music, which is protected as a musical work and through the copyright in the sound recording, some audiovisual
works made under the 1988 Act, mainly fictional works, can attract a double protection: as a dramatic work and through the
copyright in the "film'. This is, the author submits, how UK copyright law stands, irrespective of how it should.

Authorship of Dramatic Audiovisual Works and Implementation of the Term Directive

Who then should be considered the author of the dramatic audiovisual work embodied in the film? Under section 9 of the
CDPA, the author of the dramatic work is its creator. In this respect, UK law is back to its pre-1956 state. It seems clear that
the director will qualify as author of the audiovisual work: "Since a director is almost always responsible for the manner in
which a film is shot, it is he would would supply the film with its original character and therefore be the author of the dramatic
work'. 20 The question of the other contributors is too complex to be fully answered here, but the following can be said:

Being the creator of a component of a larger composite work is not sufficient under UK copyright to claim joint authorship
in the whole. roughly, joint authorship implies that contributors work in collaboration and that the part contributed by each
author is not distinct in the final work. Hence the script or scenario writer is probably the only contributor who will almost
always meet these conditions. 21 According to the same principle, it is unlikely that under UK copyright the musical composer
or the creator of the decor would be considered as a co-author. The question of other contributors like the editor or the director
of photography remains to a large extent open, their situation depending on their input in the final work and on the creative
freedom they are given by the director.

As to the duration of protection, when the work is joint, the term is calculated from the death of the last surviving co-author.

The consequences for the film producer of giving a copyright interest in the final audiovisual work to the director and some
contributors are limited *E.I.P.R. 322 in practice: the rights of the joint-authors will be in most cases granted to him, either by
operation of law (implied terms, 22 employment rules) or by contracts, and doubtless moral rights will be waived. The producer
even enjoys, through this assignment, a longer term of protection than the one he is granted by virtue of his film copyright,
even if, as pointed out, 23 he will have to keep a keen eye on death notices.

But if we come back to the term directive, does it mean that a formal implementation of its Article 2 is not in fact necessary?
In theory, yes. 24 However, a formal implementation of Article 2 would be a good opportunity to clarify the situation of the
dramatic film copyright, especially with regard to possible claims of joint authorship and/or to the calculation of the duration
of protection. In that case, in order to avoid a possible overlap in protection, the legislation should either expressly exclude
audiovisual works from protection as dramatic works (and then introduce a new heading), or expressly state that audiovisual
works are dramatic works for copyright purposes.

The author wishes to thank Professor W.R. Cornish for most helpful comments and discussions on the first draft of this opinion.

Footnotes

1 Council Directive 93/98/EEC, OJ 1993 L290/9.

2 See G. Dworkin, "Authorship of films and the European Commission Proposals for Harmonising the Term of
Copyright', Opinion [1993] 5 EIPR 151, at 155.
3 Section 35(1). For another express protection under the heading of dramatic work, see the current Canadian
Copyright Act, RSC 1985, c. C-42, section 2 (also as modified by S.C. 1993, c.44, s.53(2)).
4 (1922) C. of S., SLT 1923, 35; [1922-23] MCC 343.

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5 See Gregory committee report, Cmd. 8662, Parliamentary Papers 1951-52 vol. 9, paragraph 99, putting also
the emphasis on the difficulty of defining what would constitute originality for some cinematographic works
(paragraph 100).
6 Films made before 1 June 1957 are still protectable as dramatic works or series of photographs (CDPA 1988,
Schedule 1, 7).
7 See G. Dworkin (Note 2 above) at 152-153: "Although the 1988 Act no longer differentiates between copyright
and other subject-matter, films continue to be treated as they were before'. See also R. Durie, "Copyright,
Designs and Patent Act 1988, the Key Changes for the Film Industry', [1989] 6 EIPR 197 and most law books
on the subject.
8 Section 4(2).
9 Section 3(1). There is no precise explanation for this removal in the parliamentary debates. H.L. Deb vol. 490,
see p. 837.
10 CDPA, sections 3 and 178.
11 See D. Lester and P. Mitchell, Joynson-Hicks on UK Copyright Law, Sweet and Maxwell 1989, at 5: "The 1956
Act also stated that a post 1956 Act film was not a dramatic work. The 1988 Act omits this, and the question
arises whether in certain cases a film could be protected as a work in its own right, and as a dramatic work. We
doubt whether the courts would hold that a film itself, as opposed to the content of a film in certain cases, could
be a dramatic work, but the point is not free of doubt.' The general provisions as to construction in section
172 are not of any help, since this modification does not amount to a mere "change of expression' without legal
consequences.
12 The new text only states that "dramatic work includes a work of dance or mime' (section 3(1)). Previous texts
operated by giving closed or open lists of dramatic works.
13 Green v Broadcasting Corporation of New Zealand [1989], 2 All ER 1056.
14 G. Dworkin and R. Taylor, Copyright Designs and Patents Act 1988, Blackstone 1989, at 24; also T. Prime,
The Law of Copyright, Fourmat Publishing 1992, at 27: "a dramatic work is one which is essentially created
to be performed, usually by a number of players'; Laddie Prescott and Vittoria, The Modern Law of Copyright,
Butterworth 1980, 2318 at 16: "An original dramatic work is the product of the mind of a human author ()
which requires acting or dancing for its proper representation'.
15 For a similar definition, see J. Phillips, R. Durie and I. Karet, Whale on Copyright, 4th ed. Sweet & Maxwell
1993, at 27: "any sequence of actions, even in the absence of sound, which has been recorded in a medium from
which it may be retrieved and copied does constitute a dramatic work'. But this definition also encompasses
mere performances by actors of dramatic or non-dramatic works in the sense of section 180(2): the dramatic
work is the work created in order to be expressed through such a "sequence of actions '.
16 Especially Kalem Co. v Harper Bros, 222 US 55, 32 S. Ct. 20: held that a Ben Hur movie was copyright as
a "dramatic reproduction of the story'. Or Tiffany Productions Inc. v Dewing 50 F. (2d) 911: "It is no longer
open to question that a moving picture presentation of an author's copyright work is a dramatization of such
work' (at 3); also Photo-Drama Motion Picture Co. Inc. v Social Uplift Film Corp., (C.C.A) 220 F. 448; Klein v
Beach (C.C.A.) 239 F. 108; US v Motion Picture Patents Co. (D.C.) 225 F. 800; Atlas Mfg. Co. v Street & Smith
(C.C.A.) 204 F. 398.
17 Compare also the case of a ballet, protected as a composite dramatic work, constituted by the music, the story,
the choreography, the scenery and the costumes, Massine v de Basil (1938) MCC (1939) 223. See also for a
play, in Sterling and Carpenter, Copyright Law in the United Kingdom, 1986 at 237 p. 72: "it may be said that
a dramatic work such as a play consists of the title, the dramatis personae, the text of the play, the recorded
stage directions plus the dramatic incidents or action of the play resulting from the following of the text and
direction of dramatist'. See also Milligan v The Broadway Cinema Production, cited above note 4.
18 Copinger Skone James, 8th ed., at 221. In contrast, see Laddie, Prescott and Vittoria, note 14, 7.9 p. 274.
19 Laddie, Prescott and Vittoria, note 14.
20 Ibid. at 7.11.
21 The script writer was considered author of the larger dramatic work in Milligan v The Broadway Cinema
Production, cited above.
22 Implied licence or even assignment (Massine v de Basine, [1936-45] MCC 223.
23 G. Dworkin, above, in [1993] 5 EIPR 151, at 153.
24 The requirement of the Directive could be somewhat more stringent than the mere application of the dramatic
copyright: the term directive seems to give the copyright to the director in any case, although by application
of the rules taken from the dramatic copyright the director in some limited cases (such as some TV soaps with
strict "formats') could be denied authorship (but maybe not the script and screen writers).

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