The makers of a work are also its authors, 
providing their contribution is one of "personal and intellectual creativity"
(The fundamental principle of copyright law in most European countries)

In recent years, the media industry has been expanding at a phenomenal pace. This expansion is founded on the world-wide distribution of audio-visual products via cable, satellite and, increasingly, on digitization and use of the Internet.

The beneficiaries of these new technologies are the producers, distributors, broadcasters and marketers of media products. They enjoy a greatly increased ability to make use of works which depend upon the creativity of their creators and authors. However, as a result of the unequal terms in which their contracts are usually framed, those who actually make films are rarely entitled to an appropriate share of the wealth generated by their works. Directors of Photography form one group which is usually not fairly rewarded here. Claims to authorship are frequently disputed either because the relevant laws do not make clear who are to be considered authors/co-authors of a work, or because some of such laws name only the Writer and Director as authors.

This essay is therefore a plea for the general and international recognition of creative cinematographers as co-authors of films, television and other audiovisual productions.

1 - Legal Background

The copyright systems of most European countries are based on the principle of creativity (in German Schöpferprinzip). According to this principle, the creator of a work is also its author. The various systems differ only in form, and European harmonization means they are growing ever closer. Only the Anglo-Saxon copyright system takes a fundamentally different position, recognizing exclusively the producer of a work as that work's author. As a result, the Anglo-Saxon system will hardly ever assert itself in Europe.

Authorship rights are awarded to certain groups (or categories) of professionals by law in just a few European countries. In Poland or Bulgaria, for instance, the law recognizes the authorship rights of the DP. In other countries, for example in Italy or Spain, traditionally only screenwriters and Directors are recognized as the authors of films.

In most other European countries, including Germany, the statutory provisions governing copyright/authorship must be considered individually for each case, and there is no general recognition of authorship for a particular profession per se, not even in the case of Directors.

This makes achieving legal recognition in these countries very difficult. As a result of harmonization, however, the concept of authorship rights for particular groups is beginning to take root more broadly. One reason for this is that the examination of individual circumstances is simply not feasible when deciding upon the distribution of revenue from levies raised on rental videos, recorders and blank video tapes.

Although not actually provided for in the copyright laws of most European countries yet, a gradual transition from the individual case to the category method is taking place slowly. Considered in terms of European harmonization this could offer an opportunity for general legal recognition of the DP as author in the future.

Of course, a recognition of the authorial status of the DP applies only in the case of films or other audiovisual products which are defined as works of art3. The following considerations are correspondingly also restricted to activities in that area only. They do not apply to the work of camerapersons in the area of news reporting and other areas of non artistic filming4.

In the course of a long struggle to win recognition as authors, DP's have faced, as one would expect, powerful opposition from producers, distributors, broadcasters and media marketers. To support their positions, both sides have deployed numerous arguments, counter-arguments, objections and accusations. I will now take a critical look at these.

2 - Fundamental Arguments in the dispute over authorship rights

From the point of view of filmmaking practice, there can be no doubt that the DP belongs to the creative professions. However, as soon as one seeks a legal basis for this claim, one normally meets with strong resistance. 

The arguments expressed by our opponents are based largely on their assertion that the Film Director, on account of his right to issue instructions and maintain overall control, would take all creative decisions and merely passes them on, in the form of instructions, to the DP, who therefore would act as the Director's subordinate agent or technical assistant only. They claim, that the Director would be entirely responsible for giving the film its artistic form. Only when a DP makes an exceptional and unmistakable creative contribution to a particularly "artistic" film, this way acting as a kind of Co-Director, could an exception be made to this rule, and he or she be recognized as co-author. Our opponents insist however that, on the whole, fundamental restrictions on the creative freedom of the DOP rule out any such recognition. This view is particularly applied to b-class entertainment or exploitation films.

However, this opinion is not shared by German directors. They supported, as early as 1985, the universal recognition of DP's as co-authors by the German royalty collection organization (Verwertungsgesellschaft Bild-Kunst) for purposes of copyright payments. In its statement of January 8, 1996, the German Directors Guild reiterated its belief in the creative function performed by DP's and their claim to general co-authorship.

This already makes it clear that the opinions of our opponents serve only to defend their privileged position against the claim that DP's should also be acknowledged as authors.

3 - Historical Development

Until the mid-1970's a motion picture would first be screened in cinemas and then shown on TV, and the creators were paid accordingly. At that time, it seemed to be a fair arrangement.

Today, however, films both old and new are exploited and distributed on a global scale. As a result of this explosive growth in the media industry, producers, distributors, broadcasters and marketers can now enjoy an increase of profits never previously imaginable. In most cases, the authors, the actual makers of the films, are left empty-handed, although, according to German law, they should be adequately rewarded for any use of their creative works. Producers have made great efforts to block such royalty payments, by disputing the general right of DP's to be recognized as authors, and, precautionary, by framing contracts to expressly exclude any eventual right to royalties. The imbalance of power in this relationship has ensured that, until now, there has been little opportunity for DP's to fight back.

In the past, inquiries from DP's regarding claims to authorship were few and far between. Firstly, it was a question of little financial consequence at that time. Secondly, DP's, in common with many other artists, were primary interested in the quality of their work. In addition, they did not have the backing of powerful organizations with extensive financial and legal resources at their disposal.

Producers and marketing companies, by stark contrast, have always had their attention firmly focused on the economics of film-making, they are experienced in legal matters and they are supported by powerful organizations. As a result, they were quick to recognize the issues surrounding the expansion of the media industry and take preventive action, for example, by seeking supporting legal arguments. It is therefore perhaps unsurprising that a number of older reports and expert opinions depict DPs as the "executors of instructions issued by the Director"5 whereas more recent reports and expert opinions overwhelmingly recognize DPs' right to claim co-authorship.6

4 - Job Description: Duties and Responsibilities of the Director of Photography

A clarification of the right of DPs to be recognized as co-authors must be based on a general assessment of the tasks and areas of responsibility specific to the profession of the DP.

As is the case with almost all creative professions, the exact role of the DP is nowhere officially defined. In 1983, the German Society of Cinematographers (bvk) produced a description of the role of the DP in modern film production. This document, "Director of Photography, Film Visualization As a Creative Profession," lays particular emphasis on the creative aspects of the profession in the areas of lighting and visual design.

The description of the role of the DP was developed in consultation with the German Directors Guild. This was done in order to avoid any dispute and to verify the exact delineation of responsibilities between themselves and the DP's.

This document records generally recognized duties, responsibilities, and artistic influence of DP's in film, television and video production. One can clearly recognize, already on the basis of this document alone, that the creative input of DP's legitimates their claim to authorship.

5 - Visual Design

The basis of every audio-visual work is the Giving of Visual Form7, frequently also referred to as Visual Design. This takes place on two levels: 

Narrative: The structure of a scene and its sequences (scene breakdown), framing and composition, perspective, the selection of lenses, the position and movement of the camera, all contribute to the narrative of a film. Decisions about these elements are taken jointly by the Director and the Cinematographer.

Photographic: Within this narrative framework, individual scenes are given photographic and artistic form by the photographer, here the DP. He or she accomplishes this through the creative use of light, color, mood and atmosphere, filters, contrast, sharp/soft focus, film emulsion and developer-technique as well as special effects. In this areas the DP always acts predominantly on his or her own initiative.

The Giving of Visual Form or the Visual Design is therefore not essentially the task of the Director, but is much more determined by the personal creativity of the DP.

6 - Lighting design

"At the Beginning there was Light" (Genesis), but without light, there would be no life.

The word photography is derived from the Greek for "to write or paint with light." This is also the origin of the old German name for the cinema: the "theatre of light" (Lichtspieltheater). Nothing could more clearly highlight the central creative function that light has in filmmaking. Lighting supports the dramatic content of a scene and helps to establish the nature of characters, it also communicates mood, atmosphere and emotions. Whatever one sees on the screen, is light. As a consequence, lighting design has become the essential creative means by which DPs can develop an individual style and a wide range of expression.

This is not just true of filming in the studio, but also of exterior scenes shot during daylight, where the art of "lighting" includes choosing the time of day (the position of the sun) and the flagging, reflecting, filtering or, in most cases, adding of artificial light. 

In creative filmmaking, there is no such thing as a purely "technical" approach to lighting. The DP starts with a visual concept of the lighting design, which he or she realizes in an artistic act by creative selection from a myriad of lighting alternatives.

Lighting offers an extremely broad range of possibilities, in particular with regard to the position of the light source (front-light, side-light, back-light, lighting from above, from below), the quality of light (hard, soft, colored, moving), its contrast (high-key, low-key), the quality of shade and shadow, and the combination of all these elements.

Lighting follows an intuitive visual concept which the DP has developed, commencing with the very act of reading the screenplay, and evolved further on the basis of scouting locations and sets prior to filming. Already during this very early stage, the DP begins to prepare for a particular light mood on the final film which initially only exists in his or her imagination. Already at this early stage, he makes adjustments to the set, orders or modifies practical or natural light sources to support his artistic lighting style, and orders the technical lighting equipment. This way the DP is already in this early stage of preparation laying the foundations to the realization of his or her visual concept.

However, this "visualization in the mind" is difficult to express in words and is therefore rarely a subject of discussion with the Director in advance of actual filming.

Only when the lighting has finally been set up by the DP, does the integral lighting design become clear to others, including the Director. However, even during filming it is only possible to guess the final mood since this will not become apparent until the film has been shot, developed and printed. After all, a film "sees" things differently from the human eye. Moreover, the final image can be further influenced by the DP by means of the choice of film emulsion, exposure, filtering, developing, and other factors. It is simply not possible for the Director to judge lighting in all its aspects before the film is finally screened.

Also, in any case, there would simply not be enough time for the Director and the DP to discuss the lighting before shooting. Once the DP has set up his lighting, while the Director is rehearsing the scene with the actors, the scene must be shot immediately; there is no time left for discussions, changes or a complete re-think.

All this shows the complete absurdity of asserting that directors regularly give precise instructions for lighting and that the DP is merely responsible for the execution of these instructions. In all existing literature on the subject, lighting is clearly the responsibility of the DP and not the Director (see Endnote 7). The creative use of light is, as a matter of rule, in the hands of the DP alone (in Great Britain the expression "Lighting Cameraman" is used as well) and, for this reason, he or she is the originator of the lighting design and therefore the author.

The Gaffer or Chief Lighting Technician executes technically the lighting setup in accordance with the directions of the DP and co-ordinates the work of the other lighting technicians. The chief lighting technician is, despite a widely held misunderstanding in Germany, not in charge of the lighting design (arising from the German name Beleuchter, for lighting technicians, which does not make clear the technical nature of their role). The Anglo-Saxon designation "lighting technicians" or "electricians" describes the role far more accurately.

7 - Cinematography and Authorship

Cinematography is the visualization of and the creative basis for telling any story on film. For this reason cinematography must necessarily be of the utmost importance with regard to establishing authorship. Who is, then, the author of cinematography? There is no doubt, that in case of stills photography, the responsibility lies with the photographer - in the case of cinematography it lies accordingly with the DP, and certainly not with the Director!. Given the fundamental importance of photography and lighting in film-making, the DP, as the Author of the cinematographic image, must, logically, also be regarded as a Co-Author of that film.

8 - Discernability of a creative contribution or the blending within a filmic work

Typically, a motion picture represents the blending of the creative efforts of all those involved within a complete work which needs to be homogeneous and uniform in character to achieve the emotional response sought from the viewer. For this reason, it is not possible to clearly identify an individual creative contribution or to distinguish it from other contributions once the film has been made. The dissolving of creative contributions within a homogeneous whole and the resultant impossibility of distinguishing one contribution from others is a defining characteristic of the quality of any such contribution. If a contribution were to stand out from the rest this would rather be an indication of poor quality.

Precisely the seamless nature of a film as a whole makes the often-repeated demand that an individual creative contribution should only be recognized if it can be easily discerned from other contributions within the completed film unreasonable and illogical. The legal issue can therefore only be resolved on the basis of typical and generally acknowledged criteria which consider the case for evaluating the tasks performed by particular professionals.

9 - Entertainment-, Genre-, and Exploitation Films

It is often claimed that in the case of comedies, purely entertainment-oriented films, or similar genre or exploitation films, the very nature of these works and the clear limits inherent to the genre itself leave insufficient leeway for "creativity" on the part of the DP. It is further asserted that in the case of "cheap" films, no value is placed on artistic or creative achievement, these being the only valid basis for claims to authorial rights.

However, practically all films are genre films of one sort or another, whether they are thrillers, romances, adventure films, historical or social realist films. All films are, in the final analysis, intended to entertain, since entertainment is the essence of both cinema and television. Nevertheless, they all must possess sufficient creative quality if they are to find an audience. That is equally true of the screenplay and direction as of the cinematography.

Although such a "genre film" may mean certain restrictions on the creative will of the DP, it also means a similar restriction on the Director. No-one would, however, negate the status of such films as creative works. Should such a film have finally no author at all?

In a "low-budget" film the situation is somewhat different: The film is low-budget because it has to be made quickly and therefore cheaply. In such situations, however, there is absolutely no time left for discussions, instructions, checks or changes. After a brief walk-through rehearsal, the Director disappears in order to work with the actors while the DP, working alone with actor-doubles, takes charge of setting up the camera and lights. Once this is been done, the Director returns with the actors and the scene must be shot without delay. Only in this way is it possible to get through the scenes in the allotted time, something which is particularly true with regard to TV. In fact, in the case of low-budget films, the DP has even greater responsibility for taking decisions than is perhaps the case with out-and-out "artistic" films, where there might be more time for discussion and changes.

Moreover, each genre calls for its own type of lighting and Photography if it is to create the impact desired. Naturally, lighting will be very different for a thriller than for a comedy. A thriller will often be set in the dark and will make use of detail, will often conceal more than it shows, and, in visual terms as well as generally, be more exciting than for instance a comedy, in which the main element is the simultaneous interaction between the characters. With a comedy, there will be greater emphasis on medium and group shots than on dramatic details. Lighting will also be more even for the entire scene in order to allow the viewer to take in the various characters. This uniformity, however, is not to be confused with "simply making everything bright". A dramatic use of light and dark, pinpoint spotlighting of certain details would be the completely wrong approach. In other words, cinematography for a thriller might be more exciting and "rough" in character than for a comedy, where the emphasis will be more on nuances and filming will be less "obvious", and perhaps more "subtle". 

It is not without reason that professionals say there is nothing more difficult to film than a comedy, exactly because the effort remains mostly unseen. This fact can, however, have no bearing on the legal argument.

10 - Creative Content / degree of creativity

An individual creative contribution exists per se and on its own merits. It is not dependent upon a certain level of creativity. But considering the extent to which film is a matter of teamwork, the question must be asked, whether someone's contribution qualifies him or her to be considered as author or co-author of the whole work, or merely of their own individual contribution or performance (as in the case of actors). Since photography and lighting design are the visual basis for every film, cinematography represents a major component of the creative character of the finished work. That in itself ought to be proof enough, regardless of the quality of the film itself judged from any other point of view, that the DP exhibits the required degree of creativity, and therefore must share the authorship of a cinematic work.

11 - Artistic Originality

Artistic originality must always be viewed within its societal framework, in particular against the backdrop of contemporary trends and fashions, styles, genres, schools, masters or followers. However, for determining authorship of a creative work it is immaterial whether it remains within these frameworks or, quite deliberately, seeks to transgress or transcend them. One work may be more conventional and another be more avant-garde, but in no case would the very fact of authorship be called into question. 

Despite frequent assertions to the contrary, "originality" can therefore be no precondition of authorship in any audiovisual work.

12 - Quality, mistakes, and lack of skill

In art, there is no absolute quality, nor are there universally accepted standards of quality. Many famous painters remained unrecognized during their lifetime and were often decried as "amateurs" or worse. The abandonment of strict proportion by Picasso was initially regarded as due to a lack of technical ability. Does this mean that such artists as Picasso are not the authors of their works? How many pictures today hang in the museums of the world although the artist depicted a leg as too short or where lighting or perspective were inconsistent," in other words, works where one could claim a "mistake" has been made? The artist always remains the recognized author of his or her work, even if it is one which contains "mistakes", is amateurish or even "worthless". Whether the artist is a pupil of another or an established painter is also irrelevant. Even the "lowest quality" forms of art, for example some primitive and unimaginative paintings from the mail-orders catalogue, have their authors. "Quality" or inferior technique are therefore of no relevance with regard to establishing authorship.

13 - Art and applied technology

The work of a DP is based upon sophisticated technology, to a far greater degree than is the case with the Director. But this cannot mean that he is simply a "technician", as sometimes blamed. Only by mastering this technology he will become able, as a creative person, to realize his original vision within the finished film. Technique by itself cannot create anything.

Is Oskar Niemeyer simply a "technician" because he was able to apply the laws of structural engineering in constructing his famous buildings? Or is Jean Tinguely simply a technician because he employs welding equipment to create his metal sculptures? In none of these cases the application of technology to artistry will conflict with the attribution of authorship.

14 - Influence of the Director and subordination to a higher authority

Our opponents are frequently asserting that the Director, as a result of his authority to issue instructions, take decisions and maintain overall control, would allegedly perform the key creative functions involved in lighting and cinematography himself. This is inaccurate. While in theory Directors do have the right to overrule in conflict situations, this hardly plays a role in the actual practice of filmmaking; teamwork and cooperation are the daily routine.

Certainly, a key task of the Director is to interpret the screenplay in terms of an overall concept, a concept which, naturally, must be binding upon the other creative team members and their contributions (cinematography, production- and set design, editing) in order to ensure that all contributors are pursuing the common goal of creating a homogeneous work. However, within this screenplay-based framework, the DP makes his own decisions.

Naturally, the tasks of the Director include checking, approving and deciding between various creative ideas and proposals and, in the final analysis, determining what is included in the film and what not. However, this fact should not be misinterpreted as grounds for denying authorship rights to the DP with regard to his original ideas, proposals and decisions, of which there are a multitude in a finished film. Even if the Director does "take a look through the lens" it is done so only occasionally (in other words after the DP has already set up the shot), and the Director does so not in order to control or influence the way the scene is shot but simply to assess the impact, e.g. in order to be able to give instructions to his actors in terms of their performance.

Of course, the Director may occasionally wish to discuss aspects of cinematography or lighting with the DP. However, such discussions are mostly only in the form of an individual, specific query, e.g. whether a vital clue in the background is large enough in the shot, or bright enough to stand out, whether the size of the image is correct for the emotional impact of that moment, or whether the leading actress might be shot differently to make her look younger. Such minor corrections have no material impact on the creative concept of the DP.

A further form of "higher authority" is the screenplay itself, which is, however, something all contributors, including the Director, must conform to. The film could not be made without the screenplay; it determines the content, and to a certain extent also the style of the final film. (Sometimes the screenplay does make individual suggestions about the set-up of certain shots, but these are, as a rule, non-binding on the Director or the DP).

The producer represents a further authority with the power to issue instructions, e.g. with regard to the financial consequences of certain creative decisions or the impact on the audience. But here again, it is an authority which the directors themselves must also accept. It has never been submitted as an argument to deny directors their authorship rights. 

In other words, a film is subject to "higher authorities" in all phases of its production, a fact which has, however, no influence on the question of authorship.

15 - Comparison with the Fine Arts and Painting

The many arguments brought forward to underpin the case against authorship rights for the DP are best exposed by comparison with a similar situation in the world of painting:

Throughout the history of art, there have been many cases of works being commissioned. A typical example would be a fictional commission to paint a picture for an aristocrat for his own personal family portrait gallery.

In this particular case, this commission would be subject to a higher authority and to, in many cases, highly detailed instructions:

This included genre and content of the picture (a portrait of the aristocrat's recently acquired wife, for instance), size, perspective, background, patterns of light, the colors used and the style of painting (in each case chosen to match the existing pictures in the gallery). Furthermore, the aristocrat maintained overall control with regard to the development and quality of the picture, may have called for corrections (for instance, asking for the large nose to be painted to appear smaller) and retained a final right of veto with regard to the inclusion of the picture in the gallery, not withstanding any failings in terms of skill or "mistakes" (for instance, the nose appears much smaller now than in reality).

This example includes a wide variety of instructions, specifications, checks, corrections and other limitations on creative freedom of the sort often submitted as grounds for denying authorship rights to DP's. 

However, no one would question the authorship rights of the painter, no one would claim that the aristocrat, as a higher authority, has been the author of the painting. On what grounds should the situation be any different in the case of motion pictures?

16 - Film Credits

A further objection is that the DP is normally not named in the film credits as co-author. This indicates, so the argument, that the DP has no claim to authorship because the term Kamera (which is mostly used in Germany) suggests merely technical proficiency.

However in German credits it is standard practice only to mention the activity rather than the actual job title, i.e. "Direction", "Editing" or "Camera", even if "Bildgestaltung" (Photographic Design) or "Director of Photography" would be a more appropriate description of the creative work involved. But only a few prominent DP's were able in the past, to reach such an agreement regarding their credits. 

In Germany, broadcasters in particular have made great efforts during contract negotiations to prevent any use of titles that would refer in any way to the authorial role of the DP and therefore still insist on the use of "Camera" as a condition of employment. Only in feature films the terms "Director of Photography", or similar ones, become a standard slowly. Since credits are defined in contracts of employment, the agreement upon this title in a number of cases provides evidence that creative activity has become the very basis of employment. 

However, some DP's, in common with many other artists, do not take names or titles very seriously. Often they are unaware of the legal consequences. They might just not want to appear "difficult". As a result they are often prepared to accept the nebulous term "Camera". This is understandable, after all even a "fine artist" can usually live with the term "painter", but he can be confident of being safe from being demoted to a "painter" in the sense of a "manual worker" and can be sure that no one will question his or her right to authorship.

It's also worth taking a look beyond the frontiers of Germany: Throughout the rest of the world, the title DP is universally applied in films. Examples include "Director of Photography," "Directeur du Photo," "Direttore della Fotografia," "Director de Fotografia," etc. Naturally, the use of the term "Director" underlines the leading creative role of the DP. In Italy and Spain, use is also made of the term "Autore della/de Fotografia".

The word "Director" or "author" is used world-wide to designate the DP. This recognition of the directorial (and authorial) role of DP's amounts to a world-wide acceptance of their role as "Co-Directors," making a strong case for a general right to claim authorship.

17 - Prizes and Awards

Throughout the world, prizes and awards are frequently given to DP's in recognition of outstanding creative achievement. In Germany, film industry prizes are awarded for "Photographic Design" ("Bildgestaltung" is the term they themselves use) by, inter alia, the Federal Ministry of the Interior (the German Film Prize), the Government of the State of Bavaria (the Bavarian Film Prize) and the German Association of Photography (the German Camera Prize).

If cinematography really was the task of the Director, as is sometimes claimed, then it would be completely illogical for DP's to be regularly presented with awards for this task. To date, however, no Director or producer has ever objected to the practice.

The regular award of prizes for "Bildgestaltung" to DP's clearly suggests that they are responsible for creative work as a matter of course.

18 - Directors of Photography shaping the visual language of their Directors

Study of the early films of famous directors reveals great variation in their visual language for as long as they worked with a variety of cinematographers. It was only when they had discovered their "ideal DP" that their films developed a unique formal character.

It was only after Ingmar Bergmann began to work with DP Sven Nykvist, that his films acquired their unique and high visually creative character. Only after collaboration between these two had been established were films of such visual homogeneity as "Cries and Whispers", "Fanny and Alexander" and "Scenes from a Marriage" made.

Similar examples of long-term partnerships include:

DP Nestor Almendros and Director Eric Rohmer,

DP Robby Müller with Wim Wenders and Jim Jarmusch,

DP Robert Richardson with Oliver Stone,

DP Vittorio Storaro with Bernardo Bertolucci and Francis Ford Coppola 

DP Jost Vacano with Paul Verhoeven.

In fact, the list is almost endless and it demonstrates that even the most renowned directors have had their work molded by their DP's. 

With regard to standard TV productions one can discover considerable variations in visual and cinematographic style for one and the same Director during the course of a TV series when he or she had to work with different DP's on various episodes. However, the case of serial work provides the best example of a genre where any Director would seek a uniform visual language throughout these episodes, and would therefore try to give "precise visual instructions" to his DP's. The fact that this is in practice not accomplished demonstrates that it is in actual fact the DP who plays the greater role in determining visual language and not the Director. This again is strong evidence in favor of recognizing DP's as co-authors.

19 - Directors of Photography who became Film Directors

The DP profession is the only one which enables a smooth and easy transition to the position of film Dir A significant number of German and international DP's have, in the course of their career, made this transition to film directorship. This is only possible because they are, in the course of their normal professional activity, in many aspects responsible for performing directorial tasks already. The only task which remained to be mastered when moving into film directorship was to work with the actors.

If the DP were merely a "subordinate technician executing the instructions of the Director" then he or she would hardly be in a position to make the transition to film Director regularly in such a seamless and successful manner.

ector without undertaking further training or having to take intermediate steps of any other kind.

20 - Film Directors on the role of the Director of Photography

In his book "Sculpting in Time", the world-famous Director Andrej Tarkovsky described in detail the "creative collegiality" which existed with his DP's on all of his films:

"It is of great importance that they (DP's and Production Designers) are not simply passive agents but are fully-fledged co-creators of the film."

"I regard the DP's on all films I have made to date as co-authors."

The German Association of TV and Film Directors (German Directors Guild) emphatically expressed its support for this view in a declaration of January 8, 1996.

Another relevant German legal opinion is that of Dr. Norbert Kückelmann. Based on his considerable experience as a Film Director, screenwriter, producer and lawyer, he has expressed his full and unreserved support for recognition of authorship for DP's. His legal conclusions form the basis of the distribution plans of the German royalty collection organization (Verwertungsgesellschaft Bild-Kunst).

Once again, these are only a few examples, the list is virtually endless.

21 - Market Value, usual Rates of Pay and industry-wide Tariff Agreements

The DP is by far the highest paid of all those directly involved in film-making following the film Director. In practice, however, the DP is paid an amount in excess of the rates laid down in the official tariff agreement for the German film industry and this not only for feature films and made-for-TV films but also for run-of-the-mill TV series and serials. Since the technical and manual work involved in cinematography is largely performed by film technicians and camera assistants, this high rate of pay must mainly be attributable to the fact that the DP offers artistic skills and creative responsibility, and this not just in isolated cases. As a result, it is normal for producers to seek the best DP (and, therefore, generally the most expensive affordable) for each and every production. If it was simply a matter of following precise instructions issued by the Director, efforts would be made to find the cheapest rather than the most expensive DP and the current rates of pay would clearly be unrealistically excessive.

22 - Legal Recognition in Germany

In German copyright law, each individual claim is considered separately. Blanket recognition of particular occupational groups was difficult until now.

Since 1982, however, the German royalty collection organization (Verwertungsgesellschaft Bild-Kunst) has recognized DP's as authors, and therefore they are entitled to certain royalties, to which in law only authors have any claim. A DP receives approx. 30 percent of the amount paid to the Director. The Directors have accepted this arrangement, and consider that it accurately reflects the authorial contribution of both parties.

In other words, since 1982 DP's have, with the expressed approval of the German Ministry of Justice, received royalties to which, according to German law, only authors are entitled. But this practice was not clearly in line with the tendency of the present law. 

Effective July 2002 the German Government has now issued a new law which, at the first time, names certain professions, expressly Directors, DP's and Editors, as Co-Authors of their films. After two decades of work on this subject, this result is a notable success for the German Cinematographers Guild (bvk), which is likely to have a global effect. 

With this development, the status of DP's as authors are now also legally beyond any doubt. 

23 - International recognition

In most European countries, the laws of authorship and copyright are based, similar to Germany, on individual cases and not on the recognition of rights for particular professional groups in general. However, these countries also now face the question of distributing revenue from license fees to the authors of works via royalty collection organizations. Since a consideration of each individual case is not feasible, these countries must also introduce general guidelines for particular groups of professionals, even when this is not provided for in the copyright laws of the affected countries. Consequently the possibility arises that DP's achieve de facto recognition in these countries, as it were through the back door. This is exactly what has happened in Germany as a result of the work of the BVK.

To my knowledge, DP's are recognized as authors in the following European countries:

In Germany, Bulgaria and Poland the DP is recognized in law as author.

 

In Switzerland, Austria, Hungary, Denmark, Sweden, Finland, Norway, and the Czech Republic the DP's are recognized by royalty collection agencies as authors and entitled to a share of royalties, or similar regulations are presently in preparation.

 

 

In other words, there is increasing Europe-wide recognition of the authorship rights of the DP not only based on his or her work but also with regard to co-authorship of the film as a whole.

The exceptions in Europe are France, Italy, Spain, the Netherlands and Belgium, where traditionally until now only screenwriters and directors are legally recognized as the authors of films, and the Anglo-Saxon countries where the so called "Copyright System" prevails, in which only producers are legally recognized as authors (principle of "work made for hire").

Nevertheless, the USA resembles Germany in that authors, although they have no authorial status as such, are entitled to particular royalties (residuals). However, this applies only to screenwriters, and directors on the basis of Guild-Agreements. These also receive royalties as a result of the use of their work in Germany, for example when it is broadcast on German TV. Despite the fact that, according to German law, these US-DP's are also entitled to a percentage of this money, the American producers, screenwriters and directors share this (approx. 5 Million $ each year) among themselves (75 percent going to producers, 12,5 percent each to screenwriters and directors). The DP's come away empty handed until now.

This could be the right moment to begin a discussion of the issue of recognition of authorship in the USA, especially as, in the course of the current nascent discussion on moral rights of authorship, the question of including the DP among the authors of a film has been raised. The situation in the USA as regards contracts, on the other hand, requires the DP to cede all and any conceivable rights to the producers. These contracts even prohibit any claim on moral rights, granted by the Berne Convention, which the United States have signed.

24 - New Authorship Law in Germany effective July 1st, 2002

It has been mentioned several times that the distribution of power in the German media industry makes it virtually impossible at present for DP's to achieve satisfactory contractual provisions on the surrender of rights and the appropriate remuneration. The transfer of rights to the producers without compensation and virtually without limit in terms of territory, time and content is all too often an absolute precondition of employment.

The EU directives for the harmonization of copyright law published in 1995, stated that certain rights to royalties should remain reserved for the authors of the works in question and may no longer be ceded in advance to producers. This, however, applied only to revenue from video rentals, cable and satellite broadcasting and just recently to the blank tape levy as well. Despite this first progress, the overall situation remains unsatisfactory because of the power imbalance between the creators of films and international media organizations.

It is against this background that the German Government has issued a new law designed to take account of this power imbalance and to prescribe specific minimum conditions for the acquisition and the use of rights. This new act has also defined the legal position of Directors, DP's and Editors as Co-Authors of filmworks, as mentioned already.

This new legislation is based on the very new principle that artists generally will have a legal claim to adequate compensation for the use of their works. The law also imposes collective agreements between the organizations of both sides to define this adequacy. 

The new "bestseller-paragraph" gives a claim to additional payment to the artists in cases of unexpected success, even if this wasn't part of their original contracts. 

More details about this new Copyright-Law on the IMAGO-website at (www.imago.org)

I do hope that this will lead to a long-term improvement in the legal and economic position of DP's and other creative persons in the film industry.

25 - Outlook

As the countries of eastern Europe prepare for EU membership, it is necessary that they develop compatible systems of copyright law. Currently, France and the Anglo-Saxon countries are applying considerable pressure for their systems to be adopted as models in these countries. With regard to the increasing trend towards harmonization within the EU, the prospect of a long-term convergence on the smallest common denominator, like the French model, is conceivable. If things were to develop in this direction, it could conceivably entail the loss of all the recognition that DP's have won so far in several countries.

For this reason it is vital that in all other countries DP's and their organizations redouble their efforts to achieve recognition in their royalty collection organizations, their national law, and in the European Organizations as well. 

IMAGO, the European Federation of National Cinematographers Associations, could provide support.

Jost Vacano bvk ASC,
June 2002

The author is Director of Photography, member of the American Society of Cinematographers (ASC), and the German Bundesverband Kamera (bvk), and was awarded with several international prizes DP stands in this text for Director of Photography, but equally for all other creative cinematographers 

 

Work of art as defined in German copyright law (UrhG)

Filming designates all activities which do not involve the giving of artistic form (in German: Laufbilder)

For example, the opinion of v.Hartlieb

For example, the opinions of Hertin, Katzenberger, Prümm, Schricker, Schulze and many others "giving visual form" or "visual design" represent the German term "Bildgestaltung"