Intellectual property rights of the Director of Photography (hereinafter DP)

by Dr. Cristina Busch
Professor of Unviersity Abat Oliba CEU Barcelona
Solicitor - Expert in Intellectual Property Rights, Media- and Architectural law


Lately, with the Torun Declaration published in 1999 during the Camerimagre Film Festival in Poland , the question about intellectual property rights of the DP has become a very disputed issue. The recognition of DP as co author of "film" and as an artist with a refined technologist's instinct and expertise will be the main issue of the Cinematographer's Day 2006 in Bangok. This article tries to give a very short overview of the current or future protection of the intellectual property rights of DP.

Conditio sine qua non of the (co-)authorship of the DP regarding the film, is the character of "original" work of the film itself. There are differences in the interpretation of "original" by the Courts in the 25 European Countries, specially referring to an objective or subjective interpretation, which means the work has to be either novel or an expression of the personality of the author, but there is a broad consensus that cinematographic films, television films, publicity films and even documentary and cultural films will reach the category of "original" work.

Once having verified the character of the film as "work" we have to value the creative contribution of the DP as co-authorship. The co-authorship can only be denied, if the contribution of the Co-author has the character of a mere skill, technical contribution, subordinated completely to the instructions of the director. The role of DP in the filmmaking team is a very important one regarding the visual and lighting design. Especially the lighting design is an elemental part of the film because it gives to very individual image its special atmosphere, and influences his or her mark of personality to the film. The fact that the DP has to co-ordinate his or her work with the Director and that currently it is the Director and/or the Producer who has the "last word" can not be interpreted as "lack" of personal creativity. The DP is the most important partner of the Director. His or her work makes visible what has been only insinuated by the other media such as writing (script) and speaking (explanations of the Director). And last but least, quoting VACANO: "Technique by itself can not create anything".

As DP knows, the notion of authorship of cinematography or audiovisual works has been harmonised only partially by Directive 92/100/EEC on rental and lending right and on certain rights related to copyright in the field of intellectual property: The principal director is at least universally recognised as co-author. But the European film law continues a scene of an intractable conflict between the world's two major copyright regimes- the " droit d'auteur " tradition of mainly civil law countries and the " copyright " system of the common law jurisdictions. The former regime emanates form the notion of a film's creator (for example France , Italy , Austria , Germany , Spain , Greece , Belgian, and even in Russia etc), whereas the latter ( UK , Ireland , Luxembourg , etc.) basically sees a cinematographic work as having only a single author: its producer (OBERGFELL). And even the legal systems following the droit d'auteur approach show great differences. We can distinguish three different groups: The first group enumerates precisely the individual film authors in an exhaustive list, excluding the DP (for example Spain , Italy , Greece ,), the second group, does not provide exhaustive lists, having presumptions as to typical film authors (for example France , Belgian, Poland , Romania ). While the third group neither specifically identifies the authors, nor offers a presumption regarding the authorship of certain individuals (for example, Germany, Austria, Netherlands, Denmark, Finland, Sweden, Belgium). In these countries, the authorship is vested in the physical personas whose creativity contributed to the intellectual creation of the film. Germany and Austria , for example, assign authorship rights in the DP.

In order to reconcile the mentioned differences in the copyright regimes of the Member States concerning assignment of authorship (and, very important, the transfer of rights, see for more information: Report from the Commission to the Council, The European Parliament and the economic and social committee on the question of authorship of cinematographic or audiovisual works, 6 December, COM (2002) 691 final) it is advisable to complement the harmonisation of the notion of film authorship, although the Commission in the year 2002 declared in the mentioned report that no harmonisation is required. But the Commission nevertheless left a backdoor open by announcing that national contract law in the area of film copyright will be subject to future examination. Experts had made clear the non-accuracy of the Commission's appraisal (OBERGEFELL). So, DPs of all European Union (as the entire world) have to unit in their fight for recognition of co-authorship and for harmonising film copyright.

An argument which, according to our information, has not yet been used by DPs is the following. Even legislation excludes DPs from co-authorship (as Spain for example), jurisdiction can not deny the authorship of DP of individual photographic works he is creating during the shooting.

As mentioned above, the lighting and visual design of the film is the responsibility of the DP. So during the process of filming he will decide the focus or fragment of the image, the lighting, etc., creating with his personal style individual photographic works, which achieve the level of originality required by the law. It is commonly accepted in the European Copyright laws, that a part of an original work can be protected as individual original work. Opponents could argue that the DP is creating a variety of identical photographic works, and that is why the consideration as "individual works" does not fit in with the legal system. Of course, the DP will make a variety of identical photographical works during the shooting, or similar photographic works, if the focus is the same, but compared with fine arts and painting this argument can not be convincing: every copy of a sculpture, every lithographic series and every individual but similar work of painting of a series of an plastic artist enjoy individual legal protection (SCHULZE).

In short, the DP can be considered author of individual photographic works which form part of the film itself. If we consider the DP, besides his condition as Co-author of the film, also author of individual photographic works which are part of the film but separately exploitable, the DP has the full exclusive ownership of economic and moral rights, included the remuneration rights.

As economic rights (exploitation rights), the author has the exclusive rights to exploit his work by reproduction, distribution, public communication and even transformation. As moral rights, DP has, as the most important, the rights to demand recognition of his authorship of the work and the right to demand respect for the integrity of the work. According to his or her position as a "normal" author o co-author, the DP could ban, for example, the colouring of the black-and white film, etc. (SCHULZE). At the same time, he or she could, on the condition, that he or she is accepted as member of a Collecting Rights Society, claim the revenue from video rentals, cable and satellite broadcasting and the blank type levy as well. The opposing argument (LÖWENHEIM) against the participation in these revenues, that the individual photographic works are not transmitted or reproduced, but only the whole film itself, is not convincing at all. Indeed, the whole film is transmitted, but the whole film is built by a "series of associated images", which are exploited by the transmission or the reproduction (HERTIN, SCHULZE).

As creator of individual photographs DP has another (subsidiary) protection. When DPs advocate that the time has come for DP to be acknowledged as a co-author of "film" and as an artist, they should use in their argumentation that they always are protected by the intellectual property right law because of their condition as author of individual photographic works. In Germany , for example, the legislators made express reference to this question, introducing a presumption of assignment to the film producer of the rights "regarding the simple photographs and individual photographic works which are created during the process of film production". This means the official recognition of the authorship of DP of the photographic works.

Opponents could argue, there is no advantage being recognised as author of photographic works, when the rights are transferred to the producer. But this is not true: firstly, the transfer can never refer to the moral rights of DP, because of their character as non-renounceble rights. Secondly, the assignment to the film producer by statute (cessio legis) or by contractual arrangements based on presumptions has the objective to make the rights acquisition for the film producer easier. The creative and artistic stakeholders can only receive full compensation if the film production as a whole is a success and therefore the film producer needs an unrestricted exploitation (BREHM, OBERGEFELL). Thirdly, the assignment of rights to the film producer does not signify the "gratis" acquisition. All the last European Directives expressly guarantee to the authors their right for remuneration regarding the exploitation of his creative work. The DP is one of those authors, in his or her double condition as co-author of the film and as author of the individual photographic works.