'A popular parlour game': who are the authors of a film?

The occasion for this article is the amendment of article 45d(2) of the Dutch Copyright Act in 2021. Since 7 June 2021, the second paragraph of article 45d has given all authors of a film a right to proportionate equitable remuneration, a share of the income that is meant to reflect the value of their contribution, for the broadcasting of a cinematographic work. The government’s response to the parliamentary committee report observed: Large and diverse groups of makers may be involved in cinematographic works. That did not stop the legislature from extending the claim under article 45d(2) to all of them.

Introduction

The authors of a cinematographic work are those who have contributed something of a creative character intended for that film (article 45a(2) of the Copyright Act). The legislature gives no examples and there is little case law. How, then, does it become clear who can claim the remuneration due to authors, and how can those liable to pay know that they have paid all the rightholders?

Exactly who the authors of a cinematographic work are has occupied minds ever since film was recognised as subject matter protected by copyright. Spoor, having first observed that anyone making a creative contribution to the film qualifies as a (co-)author, calls it “a popular parlour game to work out who else might qualify”.

There is consensus about the authorship of the director, the screenwriter, the cinematographer and the editor (referred to in older literature as the ‘cutter’). Contributions by the costume designer and the production designer (responsible for the sets, decor and general ’look and feel’ of a film) will almost always be of a creative character too. Contributions by hair and make-up, special effects and sound design will often be of a creative character as well. Countless other contributions made for a film will also be of a creative character, ranging from photographs or paintings made specially for a film to the design of the 25-square letter board and letters for Lingo, or the hand with V-sign and microphone for The Voice. Co-authorship of the film producer is conceivable, though contested. In a film’s development phase, a producer may become closely involved in the content of a screenplay (storylines, interaction, ending) and contribute to it; in the film’s final stages, a producer may become substantively involved in the edit (and dictate choices there: the notorious ‘final cut’) and in the choice of music.

Who counts as an author of a cinematographic work may differ from film to film. A feature film can have dozens of authors, while a film with a single author is equally conceivable (think of an amateur’s home video). But both the number of contributions of a creative character and, for want of a better term, the creative value of the contribution may vary from film to film. The creative value of a costume designer who designs new costumes for a science fiction film is of a different order from that of the costume designer responsible for a film set at the court of Louis XIV (although even then there is plenty of room for originality and the author’s personal stamp). Likewise, the contribution of the director of photography of a feature film is of a different creative character from that of the camera operator on the television programme Lingo. However low the ‘creative value’, anyone who makes such a contribution is an author.

The authorship of cinematographic works has never attracted as much interest as it does now. No wonder: under article 45d(2) of the Copyright Act there is a large pot of money to be divided, and the question of who is entitled to it also determines the size of the portions.

This article is structured as follows. First comes a historical survey of the amendments to the Berne Convention, EU law and the Copyright Act, and a discussion of the requirement of a “contribution of a creative character”. It then considers whether all authors are also equal. If the law draws no distinction, is there perhaps a distinction in practice?

The Berne Convention

The Berne Convention has mentioned oeuvres cinématographiques since 1908, at the time only in article 14. The author of a cinematographic work was also mentioned in 1908, but not defined: a film was protected as an independent work only where the author “by the arrangement of the scenes or by the combination of the incidents represented, shall have given the work a personal and original character”.

Attempts were made to define (and above all to limit) authorship of a film, both during the Rome revision (1928) and the Brussels revision (1948). The delegates differed too widely, however. Proposals ranged from créateurs intellectuels to (co-)copyright for the producer, the author of an adapted work and even the leading actors.

The provision introduced in 1967 specifically for film copyright, article 14bis, concerns not so much the authorship of a cinematographic work as the owner of the copyright in it. It is left to the legislation of the member countries to determine who the owner is. That owner enjoys the same rights as the author of an original work. The second paragraph of article 14bis provides that where the legislation of a country recognises ‘authors’ as owners, those ‘authors’ may not object to the reproduction, distribution and communication to the public of the film.

Strikingly, the Berne Convention here, and only here, distinguishes between ‘authors’ on the one hand and the ‘owner of the copyright’ in the film on the other. The owners may be the authors, but that is left to national legislation.

The struggle of the drafters of the Berne Convention also comes through in article 15(2), which speaks of the maker of a cinematographic work. Article 15 concerns what in the Netherlands we call the ‘presumption of authorship’. The natural or legal person whose name appears on the film in the usual manner is presumed to be the maker.

Anyone who goes to the cinema knows that a great many natural and legal persons appear on a film in the usual manner. The Berne Convention not only offers no firm footing; it creates confusion.

As far as cinematographic works are concerned, article 15 of the Berne Convention aims not so much to create a presumption of authorship as to indicate who is entitled to bring infringement proceedings. By ’the maker’ is therefore meant the producer, as the French text makes clear. And that in turn corresponds with article 14bis(2)(b) of the Berne Convention.

EU law

Copyright has been harmonised to a significant extent within the European Union. A number of directives deal specifically with audiovisual works and their author(s). These directives designate the ‘principal director’ as the author or one of the authors of an audiovisual work. Member States may provide that other persons are also to be regarded as co-authors. In Luksan v Van der Let, the Court of Justice of the European Union held that under EU law the principal director of a cinematographic work must be regarded as the author or one of the authors of that work in respect of all the exploitation rights concerned.

The Netherlands before 1985

Until 1985 the Copyright Act contained no provisions on the authorship of cinematographic works.

In 1909 the ‘cinematograph’ was still seen mainly as a means of fixing other (copyright) work. In his 1909 doctoral thesis, De Beaufort argued for a right in work made specially for the ‘cinematograph’ and recommended including a provision in the Dutch Copyright Act along the lines of article 14, second and third paragraphs, of the Berne Convention.

In his 1932 handbook, De Beaufort dealt at length with authorship of cinematographic works.

He took the view that where the shooting script had been followed in detail (a script in which, according to De Beaufort, the various scenes and the course of each scene are recorded down to the smallest particulars), all collaborators are merely executing the script and are therefore not (co-)authors. In that case even the director is not an author. But De Beaufort too acknowledged that practice is often different. He accepted that various collaborators could add elements to the film, but he recognised their authorship only in that addition; the addition did not make the collaborator a co-author of the film.

The answer to the question of who the authors of a film are also depended on how a film was classified for copyright purposes. Until the film regime was introduced in 1985 there was no certainty about that classification. It was long maintained that a film was a collective work: each author held the copyright in their own contribution as included in the collective work, and the film producer was the copyright owner of the collection under article 5 of the Copyright Act (but could not on that basis assert any rights in the contributions). The Dutch Supreme Court endorsed this view, frequently adopted in the lower courts, in Das Blaue Licht.

In academic writing, however, the view that the film was a single joint work steadily gained ground. It was defended by Hirsch Ballin and Vermeijden. In La Belle et la Bête, though, the Supreme Court made clear that a joint work can only arise where there has been ‘such collaboration between the artists that each individual contribution can no longer be separated from it, so that outside the context of the whole it cannot be a separate object of artistic assessment.’ Many contributions to a film are in fact separable from it and can be assessed artistically in their own right. Think of the screenplay, the decor and the costumes, but also the footage itself (one second of film being, after all, nothing other than 24 photographs).

E.D. Hirsch Ballin wrote an article on the authorship of cinematographic works in 1953. He argued that the only criterion is whether a collaborator on a film has been able to impress their personal stamp on it. Where the various contributions bearing a personal stamp merge and can no longer be distinguished, there is a joint work and the collaborators concerned are co-authors. In his conclusion Hirsch Ballin endorsed the point made above: one cannot determine in advance who the authors of a film are; that must be established each time by reference to the particular film.

Vermeijden’s dissertation appeared in the same year. In Vermeijden’s view too, authorship of a film depends on one’s view of the copyright nature of a cinematographic work. Vermeijden opts for the film as a joint work. But who shares in that joint ownership is ‘generally difficult to determine.’ Vermeijden formulated two conditions: (i) a co-author can only be someone who qualifies as an author, and (ii) there must indeed have been collaboration. Who satisfies these conditions will have to be considered case by case, by reference to the actual relationships in the making of the film. In Komen and Verkade’s 1970 handbook, the film was described as ‘a unity (music falling outside it) with joint authorship. Who shares in that joint ownership will have to be determined case by case.’

The Netherlands since 1985

On the introduction of article 45a(2) of the Copyright Act, there was debate about who the authors of a cinematographic work are. Having initially given a non-exhaustive list in the explanatory memorandum, the legislature refrained from including a list of (possible) film authors in the Act.

The requirement that a contribution be ‘of a creative character’ was and is intended to make clear that only contributions that are relevant for copyright purposes can give rise to (co-)authorship of the film. Contributions are, after all, of very different kinds: technical, organisational and artistic. The explanatory memorandum observed on this point: The requirement of creativity is not expressly mentioned elsewhere in the Copyright Act, although it is generally accepted that the status of author in the copyright sense in principle, that is to say, in so far as the Act does not provide otherwise, belongs only to the person who can be regarded as the creator of an original work, a work that “is an expression of that which moved the author to their labour” (Supreme Court, 28 June 1946, NJ 1946, 712), however slight the requirements imposed on a “work” in copyright may otherwise be.

The term ‘creative’ was preferred to ‘original’, because ‘original’ was already used in article 13 of the Copyright Act in a different context.

Since the introduction of article 45a of the Copyright Act, the question of (co-)authorship of a film has given rise to two court decisions.

In Barchas v Lindwer, David Barchas claimed authorship of a documentary about Anne Frank produced by Wolf Lindwer. Barchas and Lindwer were initially to collaborate on that documentary, but the collaboration foundered at a certain point. Barchas had, however, written two synopses for the documentary, the second running to six pages. On that basis he sought recognition as an author of the documentary. His claims failed both at first instance and on appeal, on the ground that the synopses lacked a creative character. The synopses contained a list of reasons for the documentary, a list of possible subjects, and an account of the people who might still be interviewed. The synopses were undoubtedly the fruit of Barchas’ research, but that research lacked a personal stamp and therefore a creative character. And to the extent that it might have been otherwise, that material had not been included in the documentary.

The other case concerns the performance artist Abramović. The film producer Scarabee Filmproducties B.V. produced, in co-production with the French producer Regards Productions, a film about her life and work. That film was ultimately released in two versions, one for television (under the title The Star) and one for cinema (under the title Balkan Baroque). Apart from a difference in running time, there was essentially a single film. Abramović based her claims on her alleged authorship, and on the contention that the presumption in article 45d of the Copyright Act did not apply. The Amsterdam District Court, hearing the case in interim injunction proceedings, did not follow her. She was recognised as a performing artist in respect of material newly created for the film, but her claims foundered on the presumption of transfer in article 45d: unless the parties have agreed otherwise in writing, the author is presumed to have transferred the exploitation rights in the film to the producer.

Since the introduction of article 45a of the Copyright Act, there is consensus on the authorship of films. Not only on who qualifies as an author (anyone who makes a contribution of a creative character intended for the film), but also that it cannot be said in advance who they are, that there may be many of them, and that it may differ from film to film.

Must the contribution itself be an independent work? It may be, but it need not be. The contribution is first and foremost a contribution to a joint work. That the contribution may be an independent work (a set, a costume, for instance) is in fact recognised in article 45g of the Copyright Act, which provides that each author retains the copyright in their own contribution unless otherwise agreed in writing.

Are all authors equal?

On the introduction of article 45a(2) of the Copyright Act, the legislature observed: “Nor do we consider it desirable for the Act to draw a distinction between makers who are mentioned by name and other makers.” But are all authors equal?

Just as the writer of a novel is as much an author as the writer of a throwaway piece, so of course all persons who have made creative contributions to a film are equally authors. But their contributions can certainly be characterised differently: artistically (albeit that such characterisation is almost certainly subjective), in labour or time, and in relation to the film as a whole. These differences play a role above all in the financial valuation of the individual contributions.

Artistic appreciation is legally irrelevant. So are the labour performed and the time spent. The importance to the whole does, however, find expression in the Act: article 25ca of the Copyright Act in principle denies a right to information about exploitation to an author whose contribution to the (cinematographic) work as a whole is insignificant.

Just as all these differences play a role in the financial valuation of a contribution during the making of a film, so they may or will play a role in the distribution of the ‘pot of money’ referred to earlier.

Conclusion

Who the authors of a film are is known only once the film has been made. And even then there may still be argument. Because of the presumption of transfer under article 45d of the Copyright Act, or because of the contractual assignment of rights, the exploitation rights usually lie with the producer.

Solutions to the present ‘uncertainty’ about who exactly is the author of a film, or who is entitled to (proportionate) equitable remuneration, are of course conceivable. The Act could determine who the authors of a film are. Both the Berne Convention and EU law offer the possibility and the room for that. The Act could, for instance, confine the status of author to the director, screenwriter, writer of the dialogue, composer and lyricist of the film music, director of photography, production designer, costume designer, make-up artist, editor, sound designer and animators (or a selection of these). The legislature has not, however, opted for such a list and limitation.

An alternative to a choice by the legislature is to provide that film authors are represented by a single collective management organisation. That would at any rate create clarity for those liable to pay. One can imagine a single organisation for all film authors, into which LIRA and VEVAM would then be absorbed, or an additional organisation alongside LIRA and VEVAM, exclusively representing the authors not yet represented. The Act offers scope for this solution too: under article 45d(5) of the Copyright Act, one or more collective management organisations may be designated by governmental decree for the collection of the proportionate equitable remuneration.

For the collection and distribution of the financial claims of the authors of cinematographic works (other than the director and the writer), the FAIR foundation (Film Auteurs In Recht) was set up in 2021. FAIR is an initiative of, and a collaboration between, the cinematographers (NSC, Netherlands Society of Cinematographers), production designers, costume designers and make-up artists (ACM, Art Costume hair & Make-up), editors (NCE, Dutch Association of Cinema Editors) and sound designers (VCA, Vereniging Constructief Audio). FAIR aims to represent all authors, including those not yet organised.

Film authors can register with FAIR, stating their contribution to a cinematographic work. FAIR will assess such statements in broad terms (by reference to the credits of the film in question, for instance).

In its draft distribution rules, FAIR seeks a division of monies among all authors that does justice to the practical differences between contributions. The rules apply two weighting factors: the type of cinematographic work (feature film, documentary, television studio work, and so on) and the nature of the contribution (someone who designs costumes is valued differently from someone responsible for the (existing) costumes in a contemporary film, for instance). To keep the system workable, contributions to films more than fifteen years old do not qualify.

In practical terms, FAIR will have to fight both for its place at the negotiating table and for its claims to money. The central question in the period ahead will be whether the pot grows, or the individual portions shrink. Users will have little appetite for paying more, and the present recipients will have little appetite for giving up a share. Be that as it may: no party can get around the statutory claims of all authors.