This question has not been of any interest for the last sixty years since the Austria Copyright Act came into force. Why should it have?

Austrian Copyright Law provides the transfer of all utilization rights for commercially produced films to the producer ("cessio legis"). The authors of a film, among them directors and cinematographers, have to leave their copyright at the box office. Their only right remaining is to be listed on the credits of the film.

This situation changed when around the middle of the eighties it became known in Austria that the Verwertungsgesellschaft Bild Kunst in Bonn (Germany) was paying remunerations to cinematographers out of the money which Bild Kunst received from the blank tape levy (video). Austrian cinematographers who received this information joined Bild Kunst and received payments for several years.

At the beginning of the nineties a new collecting society for audiovisual authors was established, VDFS Verwertungsgesellschaft Dachverband Filmschaffender. At the foundation and within the governing bodies of this society cinematographers were involved from the very beginning. For the first years of its existence VDFS was restricted to the collection of foreign royalties and the distribution of these amounts to their members because of the existence of cessio legis in Austria. In this foreign collection VDFS depended on the internal legislation and rules of the societies in individual countries. Some recognized the cinematographer as co-authors of the film (Germany, Hungary, Finland), some did not (Switzerland – until 1996, France and Netherlands).

While collecting foreign royalties VDFS worked to establish participation of audiovisual authors in the financial results of their works primarily from the cable and blank tape income. In 1997 all cable systems paid copyright fees to all rightholders of ATS 139,5 millions. In the same year all importers of blank tapes paid a levy to all rightholders of ATS 78,1 million (video) and ATS 17,4 million (audio).

This income from copyright royalties was redirected by the Austrian Copyright Law Revision effective April 1, 1996 in part to audiovisual authors including cinematographers. In principle there is a division between producers and authors of 50:50 which will be reached in steps until 2005. This success made it possible for audiovisual authors to participate in income from which, since the legal foundations for it were laid in 1980, all other groups of rightholders (authors, composers, graphic and plastic art, producers of phonograms, broadcasting organisation, performing artists) had profited.

In this situation the question if the cinematographer is to be considered to be an audiovisual author has increased in importance. The Austrian Copyright Act is clear in its answer to the question "Who is the author of the work?". The reply is: "Author of the work is the person who created it" (Art 10 para 1 of the Austrian Copyright Act). If there are more than one author there is common authorship in a work.

The relevant question is of who created a film. The explanatory remarks of the Austrian Copyright Act read as follows: "As far as the authors are concerned it has to be kept in mind that films are mostly collective creations to which various individual persons contributed. It would be an obvious exaggeration of protection if the law would give each contributor even if his creative input is minimal the same rights to be considered as the author of the film. This consideration justifies the rule to give only these persons the right to be considered as authors of the film who imprinted the mark of their personality to the making of the film."

Do cinematographers usually "imprint their mark of personality" to the film?

The Court of Appeals in Vienna was not so sure about this. In a decision of 1990 it considered that the director was the only person to be called author of the film. This decision was criticized by one of Austria’s leading copyright experts Michel Walter as follows:

"It cannot be ruled out that even for films such as classical feature films to be performed in cinemas which really have the mark of the personality of the director imprinted upon them other persons have contributed substantially to the making of the film. This will normally be the case for the cinematographer and the editor of a film."

The legal situation in Germany is much clearer. A commentary to the Germany Copyright Act of 1994 reads as follows:

"For the cinematographer the creative quality of his contribution for the direct sequence of pictures, light, colour and realization cannot be doubted."

A special case is the participation of cinematographers for non classical feature films. In cases were family events such as weddings are recorded on video it is the cinematographer who holds the rights in the recording. However, if he is employed by a commercial provider of such services (video producer) the rights lie with the producer.

To summarize: Typically cinematographers in Austria are co-authors of the film and enjoy the resulting rights (primarily remunerations rights in cable and blank tape levy). For the collection of these rights a society (VDFS) has been established.

Overview of Cinematographers‘ rights to participate in Cable and Blank Tape Levy in Europe:

Denmark: 2,24% (cable)

Germany: 16,62%

Switzerland: 4,5%

Finland: 6,2% (blank tape levy) 2,35 % (cable)

Norway: 10% (blank tape levy, goes to professional organisations also including sound and editing)

Hungary: 5,64%

Austria: recognized as authors no participation percentage fixed yet.

Sweden: recognized as authors no participation percentage fixed yet.

Walter Dillenz