Meeting of the Imago Author's Rights Committee
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Background The Torun Declaration published in 1999 publicly claimed recognition of the status of cinematographers as co-authors of cinematographic and audiovisual works. Prior to the formation of the Imago Committee on Author's Rights, Imago has been involved with two initiatives in the field of author's rights. It sponsored a conference on the subject in Vienna in November 2001 and members attended the First International Conference on Author's Rights in Huelva in November 2004. These conferences delineated the position of author's rights into two clear areas: moral rights (the right for an author to be recognised and to have control over the work that he has created) and related rights (i.e. monies arising from the exploitation of the created work). At the lst International Congress on Authorship Rights of Cinematographers in Huelva November 2004 the 28 National Societies that attended reached the conclusion that as cinematographic and audiovisual works are internationally recognised as artistic creations and the cinematographer plays an essential role in the creation of these works he or she must therefore be recognised as a full co-author and require the public authorities to provide all necessary means to guarantee protection and effective participation in any and all benefits generated by these works. The Current Situation • As a result of these two meetings a great deal has been learned about the legal position in the context of author's rights in various countries and member associations responded to a questionnaire with details of rights in Poland, Czech Republic, Austria, France, Greece, Germany, Norway, Denmark and Spain. • The moral right of an author to have control of his work is a contentious one since the copyright in the finished work is vested in the producer. However there are countries ( Sweden for example) in which a cinematographer has challenged the right of the producer to change the work. The committee felt that though this was an area fraught with difficulties the basic aim of establishing a cinematographer's moral rights must include the right to control his own work. Tony Forsberg made the point that in the digital age, where changes in post-production were much easier, this was a growing concern for cinematographers. • With reference to ‘related rights' Tony Forsberg explained the situation in Sweden . The Swedish union has formed a collecting society owned by the union (which includes actors) which has an agreement with the distributors and producers. For Swedish productions this gets not only money from a Blank Tape Levy but from ticket sales, cable television and exports and this is then distributed to members. Cinematographers get 13.5 per cent of this money, productions designers and costume designers each get 9% (blank tape levy is about 60% of the total) – though not editors. Money that cannot be distributed is given as grants to people whose work was largely shown before 1985 (when the system began) but they are getting more difficult to find. The system of payments is currently being renegotiated. • John French explained the situation in the UK . There are absolutely no author's rights for cinematographers largely because the British government follow the American example where all rights in a cinematographic or audiovisual work are strictly reserved to the producer. However in order to take advantage of the European position with reference to ‘related rights', and following what has become known as the Phil Collins decision in the European court (stating that member countries of the EU must treat the citizens of other countries as equal under the law with their own) the BSC (in conjunction with the BFDG – productions and costume designers - and GBFTE – editors) formed a collecting society with the purpose of collecting monies (mostly Blank Tape levy and cable television rights) from countries where this applied. So far the society has collected monies from Germany , Austria and Finland . However the Germans have refused to recognise its status as a collecting society because no legislation exists in Britain specifically designating collecting societies as a legal entity. This problem persists. • Luciano Tovoli explained the Italian position. Following the meeting in Vienna where Walter Dillenz (of the VDFS) advised all associations that the best way to establishing author's rights was initially to write to the national collecting society and ask for equal treatment with other author's of the film. If the collecting society then refused this refusal could be challenged in the court. Previous to this the Italians had tried a political approach to trying to establish author's rights for cinematographers but on his return from Vienna Luciano and the AIC followed Dr Dillenz's advice and mounted a test case against the SIAE (the Italian Collecting Society). The case will be in front of a court in Italy on the 16th January but only for a preliminary hearing. Arguments will be heard later in the year. In fact a piece of legislation was passed in Italy that recognised cinematographers as authors of the photography so this case is to clear up a contradiction which exists between this legislation and the legislation governing the distributions by the collection society. Clearly the deliberations of the judge in this case has important consequences for similar cases throughout Europe . • Political Dimension. In Vienna the meeting discussed a draft letter to the then president of the EU. Under EU laws there are some subjects and rights that it is felt, for the good of the community as a whole and to make things easier and more transparent, should be the same throughout Europe i.e. should be ‘harmonised'. However subsequent to this meeting the EU announced that authorship rights was not an area in which it felt ‘harmonisation' was required and that each country should make its own arrangements. The committee felt that this did not mean that a political approach to the EU was out of the question but that the extension and further definition of author's rights was probably better done, at the moment at least, through national governments. Aims of the Committee The basic aims of the authorship committee are: • To define clearly the rights of a cinematographer as an author in the creation of a cinematographic and audiovisual work. • To build a database of the situation existing in other countries and to keep up with the situation in these countries as it changes. • To help member associations in other countries to create or extend author's rights for their cinematographers by providing information and advice. The committee can assist associations with different experiences and different models of the way these rights are framed and how they have been achieved. • To define a model of author's rights for cinematographers. This would involved: a) the recognition of cinematographer's as authors of the photography and therefore as co-authors in the creation of cinematographic and audiovisual work. b) the understanding that a producer/distributor has no right to tamper with the work of the author without permission c) that the cinematographer has to maintain control over the work especially in post-production and be in charge of all the photography no matter what changes are made to techniques. d) Recognition that as the cinematographer's name is the name on the film it is his or her reputation that is at stake e) the development of related rights through collecting societies and by other means f) the moral right to be credited on the film (though the form this credit takes is a contractual matter). • To consider the possibility of making political approaches at a national and European level, formally and informally, to further extend the rights of cinematographers as authors and, where deemed appropriate, to initiate these approaches through the board of Imago. This may include an appeal on the grounds of European Human Rights Legislation as discussed in Huelva . Appeal With reference to these aims we are asking all associations to detail the situation on author's rights in their countries. We already have information on Poland , Denmark , Norway , France , Czech Republic , Spain , Sweden , Greece , Austria and Germany but if there have been any significant developments or changes in these countries we would also like to be advised. General Notes • In each country the rights vary and some have rights for production designers and costume designers and editors as well as cinematographers. There is not however, a country that has rights for pds, cds, or editors but which does not have rights for cinematographers. • The committee were keen to point out that the initial impetus in the question of author's rights came from the Germans and Jost Vacano and Wolfgang True who had created a model for legislation in Germany which they explained at the first meeting of Imago in Rome . The Germans were the first to legislate on this matter. As a matter of fact Germany is also the only country currently which intervenes in matters of exploitation in the cinema. German law requires that in cases where a film is successful but the film personnel have not be paid probably (defined as their normal weekly rate) they may apply for arbitration to establish their right to part of the proceeds from the profits of the film. • In relation to ‘related rights' there are problems with the definitions of who is entitled to receive the money for each department, with some art directors and costume assistants claiming money in Austria. There are also other departments such as make-up who could be considered to claim creative rights. Tony Forsberg made that point that in Sweden the concept is called ‘the height of creativity'.. • India . John French thought that it had been mentioned in Huelva that the Indian legislation in relation to cinematographers was a model for other countries and would email Sunny Joseph for a copy.
10th January 2008 Present: John French Tony Forsberg Luciano Tovoli
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