Cinematography; Article 10.1.d) of the Intellectual Property Rights and Article 86.1 of the same Act; author or authors.

Essential articles of the Intellectual Property Act relative to the authors; Articles 5.1,1 and 7.1.

Cinematographic work; Hollywood Oscars; Cinematographic work; work with plurality of authors, in collaboration and non-collective.

Authorship of cinematographic work; Article 87 of the Intellectual Property Act.

Reverential reading of the text; derogated 17/66 Act; Article 87 of the Intellectual Property Act contains –for some- a closed list.

Arguments to defend the co-authorship of directors of photography of cinematography works: Qui tacet non altrui consentire videtur; the argument a simile and the possible interplay of the analogy; voluntas legis and voluntas legislatoris.

Interpretation criteria of rules and lessons from comparative law; Article 3.1 of the Civil Code.

Systematic interpretation; Article 87 of the Intellectual Property Act presupposes a series of articles that precede it.

The essential part of cinematography is the images.

Article 10 of the Intellectual Property Act: Non-exhaustive list of works, but illustrative.

Article 3 of the Intellectual Property of cinematographic works Act of 1966; legislative precedent to interpret Article 87 of the Intellectual Property Act.

Open list of authors in French legislation.

Specialised Spanish regulation: Order of the Ministry of Justice 7.9.92 and Royal Decree 81/97, which partially develops 17/94 Act.

Photographs, mere photographs and cinematographic photography.

Cinema, etymologically, refers to movement. Cinematography and cinematographic have to do with recorded movement, written, contained in a recipient. Kinema in Greek means "movement" and grafo "record", "draw".

A cinematographic work is a work of the spirit, contemplated as such in the Intellectual Property Act Article 10.1.d), and not expressly defined there. According to Article 10, the cinematographic work is a work of the spirit because it is an original creation expressed on a tangible medium.

More specifically, it can be defined as a work essentially constituted by a sequence of moving images. In this sense, Article 86.1 of the Intellectual Property Act, with the heading "Concept" and which opens the heading relative to "Cinematographic and other audio-visual work", defines cinematographic works as follows: "Creations expressed through a series of associated images, with or without incorporated sound, intended to be reproduced by means of projection systems or any other public communication means, regardless of the nature of the material medium of such work".

Clearly, intellectual property rights over the cinematographic work must be owned by an author or authors, regardless of the existence of any other intellectual property rights over the work that might pertain to the artists –interpreters or executors-, to the producers of audio-visual recordings and/or to the radio-diffusion entities. Rights more or less related (very much so sometimes) to those of the authors.

Worth noting is the literal sense of the fundamental articles of the Intellectual Property Act concerning the authors; articles closely related to each other and which I will, on purpose, quote in a different sequential order to that assigned by the Act.

Article 5.1: "Author is the physical person that creates a literary, artistic or scientific work ("that conceives and carries out some scientific or literary work, or that creates and executes an artistic work" states with greater precision the Intellectual Property Regulation of 1880, which is still in force as far as it does not contradict the current Intellectual Property Act, although it develops the old 1879 Act, as stated by the Seventh Transitory Disposition of the Intellectual Property Act)".

Article 1 –"generative fact"-: "Intellectual property of a literary, artistic or scientific work belongs to its author (or authors) for the mere fact of its creation."

For the mere fact of its creation, it must be noted. It also ought to be highlighted that the creation and corresponding entailed authorship is a pre-juridical fact, a "prius" that Law must necessarily recognise, thus the legislator cannot discretionally grant –or restrict- an authorship.

It has been long since arbitrary privileges were granted in relation to the works of the spirit, closer to us, since the French revolution, is the conception of the intellectual property as the most sacred of properties. For this reason, and according to Angel Carrasco, the definition of the concept of author expressed in the previously referred Article 5 of the Intellectual Property Act, belongs to the sort of definitions that cannot be totally arbitrary, since it is describing a fact, the existence of which is necessarily external to the legislator.

Any person that takes active part in the creative process of a work of the spirit must be considered, then, as its author. More than one person can participate in the process, either because it is their own will to do so –a literary work written in co-operation, for instance-, or because of the complex nature of the work which needs the collaboration of several creators, as it is the case with theatre plays.

We are referring to the so-called work in co-operation, defined in Article 7.1 of the Intellectual Property Act as "work that is the unitary result of the efforts of several authors".

Cinematographic works clearly belong to this category, since it is in their nature the need of a series of diverse creative contributions. In the words of master Roman Gubern, "Narrative fiction cinema –that, in the first perceptive instance, is moving image- was generated from the integration of the iconic essence of photography, the spectacular essence of theatre, the structure and narrative convictions of the novel, and once the sound dimension was conquered, the acoustic expression of the radio drama".

All these contributions and others are given an important consideration by the cinematographic industry, rewarding them beyond any merely mechanic or professional consideration with a variety of prizes, the most prestigious of which being the Hollywood Oscars.

The first Oscars were awarded in 1929 to films first screened between the 1st of August 1927 and the 1st of August 1928. They were awarded to the best film, best actresses and actors, directors, script-writers, authors of titles -all films produced at the time were silent, what explains the absence of a prize for the best soundtrack-, photography, set design, artistic quality in production and engineering effects.

As has been noted, a prize for the best photography was awarded from the very beginning. The first of these prizes were awarded to Rosher and Struss for Sunrise, a film directed by Murnau and produced by Fox.

Nobody could be trustworthier than the cinematographic industry to identify the creators of a cinematographic work, specially considering that this identification implies rights and remunerations which reduce the net earnings of cinematographic producers.

Besides what has been said, it must be taken into account that in our culture cinematographic works comprise a variety of authors –as expressly indicated by Article 87 of the Intellectual Property Act- and thus, is a collaborative work and not a collective work referred to by Article 8 of the same Act ("work created with the initiative and under the co-ordination of a physical or legal person that publishes and discloses the work under his name, and which is constituted by the sum of the contributions of different authors integrated into a unique and autonomous creation, impeding any of them from claiming rights over the totality of the work"). Taking all this into account, we will now look at how the relevant legal texts –expressly or tacitly- specify who are co-authors of the cinematographic work, among whom, as we will see, the photography director has a very relevant position.

In current Spanish law, the key rule that refers to the authorship of any cinematographic work is Article 87 of the Intellectual Property Act, which states the following:

The authors of a cinematographic work, according to the rules set out in Article 7 of this Act –work in collaboration-, are:

The director.

The authors of the argument, adaptation and the authors of the script or dialogues.

 

The authors of the musical works, with or without lyrics, expressly created for such work.

The end. It states nothing else. It focuses on the literary-musical and makes no reference to what is specifically cinematographic: movement, image, photography, montage, what can be seen.

Does this mean that all those other that the scriptwriter, musicians or directors cannot be considered co-authors of the work?

According to a considerable sector of the Spanish legal doctrine, and that can be represented by Nazareth Perez de Castro it is so.

Making to a reverential reading of Article 87, previously transcribed, and despite her critical attitude towards it, Professor Pérez de Castro and those that agree with her thinking argue the following: those that are not mentioned are not authors because of the application of the maxim inclusio unios, esclusio alterius. This argument is further strengthened by the following:

Act 17/66, relative to intellectual property in cinematographic works, nowadays derogated, lists the authors in its Article 3 which is completed with a formula through which it was possible to consider authors all persons that, by means of an intellectual creation activity, take part in the creation of such works. This formula is not present in Article 87 of the Intellectual Property Act, an article that, considering the antecedent of the previously mentioned Act, contains a closed list, a numerus clausus, an expression of the will of the legislator, representative of the voluntas legis.

The mentioned trend accepts, at the most and lege ferenda, the opportunity to modify the Intellectual Property Act in order to increase the list of authors of a cinematographic work and/or arbitrate an ending clause in the same way as the old 17/66 Act.

Although recognizing that this could clarify the question, I do believe that this sort of doctrinal trend is erroneous and that according to the Law, lege data, there are more than enough arguments to defend the co-authorship of directors of photography in cinematographic works. I present these arguments next:

In response to the claim that the rule contained in Article 87 expressing the mentioned list is clear, and that in claris non fit interpretatio it can be said that the rule might be clear in what it says, even after a minimal analysis that can allow to express a judgement on clarity, thus the need to interpret all rules.

The rule though, is not clear or unclear in what it omits, since, in respect to it, it does nothing but to omit. Qui tacet non altrui consentire videtur, it is said in relation to silence as a hypothetical declaration of will, the opposite is also possible, qui tacet consentire videtur.

For the doctrinal sector criticised earlier, silence suggests the interplay of the maxim incluso unios, which implies and argument a contrario. Nevertheless, as correct and well known as the argument a contrario is the argument a simile and the possible interplay of the analogy. Further, in the case of directors of photography, it is the latter argument that must rule, since its purpose is to recognise rights, not to restrict them. Rules restrictive of rights must be restrictively interpreted, since odiosa sunt restringenda, but this maxim does not apply to other rules.

To the argument that Article 87 of the Intellectual Property Act's list is a numerus clausus –non-existent for me- willingly desired by the legislator, who did not ignore Article 3 of the 17/66 Act and never-the-less, discarded it together with the philosophy implied by it, it is important to make the following precisions:

More than the legislator, it is the pre-legislator, or certain pre-legislators in charge, rather –among whom there was no representative of directors of photography, by the way-, that substituted –possibly on purpose- one article by the other. This does not impede that the Act can be attributed, in final terms, to the legislators, despite the fact that not all of them possess the desirable level of knowledge of it. But precisely for this reason, for the difficulty entailed in judging the real will of the legislator in the cases of big legislative assemblies, what counts at the end of the day and in current interpretative practice is the voluntas legis –the will of the law, and not the voluntas legislatoris, the will of the legislator. The will of the law concerns everyone, including the legislators that voted for it and the judges that make use of it.

Thus, we must be aware of what the Act intends, and not the original intention of the legislator. Further, we must also know what the Act intends in the precise moment of its application.

In order to know this, it is convenient –when not obligatory- to take into account the interpretation criteria of the norms –systematic, historic and finalist-, also considering any lessons that could be learnt from Comparative Law. It is important not to forget that in accordance to Article 3.1 of the Spanish Civil Code "Rules -all rules- must be interpreted according to the meaning of the words in relation to the context, the historical and legislative antecedents and the social reality of the time when they are applied, essentially attending to the spirit and finality of these".

Taking all this into consideration and employing systematic interpretation, it may be argued that Article 87 of the Intellectual Property Act presupposes a series of articles that precede it: Article 86 –"concept of audio-visual work-, 10 –"original works and titles"- 7 –"work in collaboration"- 5 "authors and other beneficiaries" and 1 –"generative fact of intellectual property"-.

We have already referred to them all and, as we know, the consequence of their interplay is that all those that can prove having taken part in the creative process must be considered co-authors of it. No matter how sorry some may be, badly accustomed to –unjustified- monopoly of author’s rights, despising films until there was an industry in place and it was widely considered Art (which in reality, was not their own), and with the intention to keep the whole cake or at least a huge piece, as was argued by Claude Masouyé.

The fact is that, beyond words –non-existent in silent films, apart from brief subtitles- and the music, pictures are the most important part of cinematography, and thus the person who makes them is, undoubtedly, a co-author of the final work. None of the authors is entitled to the exclusive authorship, thus Napoleon is not just the work of Gance, nor The Godfather (with apologies to Brando) of Coppola.

According to many experts, Citizen Kane, Welles’s "opera prima", is inconceivable without the high and low angle shots of its director of photography, Gregg Toland. Just like Bertolucci’s films are unthinkable without Storaro, or Lean’s without Freddie Young. Freddie Young, one of my favourite photographers and who I had the pleasure to meet, is capable of filming Russia in Teruel or Arabia in Andalusia. Both Young and Storaro, filmed beautiful and very distinct deserts, despite the fact that deserts are invariably made up of dunes or sand only. But films have portrayed red, yellow, white and black deserts, and Young himself once told me that with a few lights and some canvas he could give the desert any colour he wanted.

Images, at the end of the day. Montxo Armendariz once told me that he thinks his films in images –images that others create- and not in words. Experts even count the number of shots (68?) in the famous scene of the massacre on the ladder in Battleship Potemkin of Eisenstein, or those of the killing in the shower (13?) of Psycho, by Hitchcock. These are all great moments in the history of film-making, and were made with images only. Everything is understood through a precise, complete and complex form of cinematographic language that, clearly, involves photography directors.

It is worth reminding that the trend –criticised earlier- of assigning the authorship of a film to its director is a relatively recent one. It has its origins in Renoir and then spreaded among the directors of the so called Nouvelle Vague, many of which were critics associated to the mythical Cahiers du cinema before becoming directors. Before there were actor films, producer films, photographer films, films that belonged to all and to no one in particular, as it is the case, paradigmatically, of Gone with the Wind.

It must also be noted that the Lumiere Brothers were also photographers, Méliès being the inventor of montage. We cannot forget how much cinematography owes to painting, to the type of impressionism practised by Jean Renoir –at the end of the day, the son of Augusto- or to the kind of expressionism of films by Lang or Mumau. Images once again.

Despite the fact that all that has been argued so far certifies the important role of the photographer in the creation of cinematographic works, these are not the only arguments that support the idea that Spanish Law, strictly understood, does also hold the same principle. What follows are these other arguments.

Article 10 of the Intellectual Property Act contains a very wide definition of a work of the spirit. The first section reads "all original creations are the object of intellectual property… (Works) can be expressed by any means or medium, tangible or intangible, known or to be invented in the future". Next, a comprehensive list of such works follows, but the article is careful to specify that such list is not exhaustive but illustrative ("being among them" the works that appear in the list that follows).

If the referred list is illustrative, why should the list of authors of cinematographic works be exhaustive? Particularly so if we consider how short the list of Article 87 is, and the fact that, strictly speaking, it does not consider those involved in the most cinematographic part of the work.

Article 3 of the Intellectual Property Act of 1966, contains an open formula in relation to the authors of a cinematographic work which clearly constitutes a legal precedent, based on Article 3.1 of the Spanish Civil Code, to interpret rules in force, such as Article 87 of the Intellectual Property Act. It must also be considered that this open formula is recognised by the French legislation –and lessons learnt from Comparative Law ought to be followed. Even more importantly, a number of Spanish regulations since the 1987 Act, which both refer to cinematography and contain an interpretation of Article 87 –clearly well known by the legislative authorities- secundum legem, and thus binding. A closer look at the mentioned norms shows that:

In current French Law, as in the previous one, there is an open list of authors of cinematographic works, completed with an ending clause in Section 1 of Article 113.7 of the Intellectual Property Code of 1992, which states the following:

"Authors of an audio-visual work are those physical persons that carry out the intellectual creation of the work".

Spain constantly has followed the French example in relation to intellectual property. Why should it not do so precisely the same thing this time? Really, there is no reason why it should not, in fact, we have done so. Referring to Spanish norms:

Order by the Ministry of Justice, dated 7th september 1992, relative to the co-production of cinematographic works: Number 4 of the second section reads: "Creation personnel are those persons that can be considered authors (authors of the pre-existent work, script writers, adapters, directors, composers), as well as the film editor in chief, the director of photography, and the set designer in chief".

Royal Decree 81/1997 of the 24th of January, that partially develops the 17/1994 Act for the protection and diffusion of cinematography. Article 4 establishes the requirement for the producer to present a nominal list of those persons that can be considered co-authors of the work, expressly mentioning the director of photography, together with the director, script writer, composer, film editor in chief, artistic director and sound manager.

Roma locuta est, causa finita est. A Royal Decree that develops an Act –from 1994 in this case- has the same rank as the Act itself and thus overrules a previous Act in whatever particular aspect there is conflict in between the two, such as a restrictive interpretation of Article 87 of the Intellectual Property Act, without any need for an express derogation and based on the rule lex posterior derogat anterior. Besides, in this case the "general rule is derogated by the specific one" rule also applies, based on the primacy of the specific over the general, for the smaller extension and greater understanding of the latter in respect to the former.

One final argument in favour of considering the director of photography as a legitimate author:

Article 10.1. of the Intellectual Property Act, in section "h" considers photographs as original wok and Article 128 of the same Act, whether we might think this makes sense, protects mere photographs –those that due to their simplicity cannot be considered work of the spirit.

Considering this, how can it be argued that the author of a photograph has author rights, but the author of thousands of photographs that form a film once united by technology, does not?

In the worst possible scenario, is the director of photography not the author of each of the photographs in a film, and thus entitled to author rights over them?

If this was not the case, bizarre situations could occur, such as the following: In the recent Italian film The Last Kiss, interpreted by Stefania Sandrelli –fattish, in her fifties, absolutely great and beautiful- includes shots of the actress when she was younger, in Novecento. Undoubtedly, the author of such photographs has intellectual property rights over them. Could they by any means be refused to the person that photographed the whole film?

21 Fernando Trueba, referring to Sandrelli and others of the genre like Bardot, Cardinale or Andrés, says –Dictionary of Cinematography, Planeta, Barcelona, 1987, p. 254-: "Many of them are not part of the history of cinematography… for their interpretative skills, but those in my generation –including myself- have not yet recovered".

Carlos Rogel - Spain