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Madrid, 2009

CINEMATOGRAPHERS’COPYRIGHT

Carlos Rogel VideProfessor of Civil Law

TranslationKeelin Feeney

Coro Hernando de Larramendi

© Carlos Rogel Vide© This edition published by Editorial Reus, S.A.

Editorial Reus, S. A.Preciados, 23 - 28013 MadridTfno: (34) 91 521 36 19 - (34) 91 522 30 54Fax: (34) 91 531 24 08E-mail: reus@editorialreus.eshttp://www.editorialreus.esISBN: 978-84-290-1572-0Legal Deposit: Z. 3802-09Cover Design: Pablo NúñezPrinted in Spain

Imprint: Talleres Editoriales COMETA, S. A.Ctra. Castellón, Km. 3,400 – 50013 Zaragoza

Illegal photocopying of this book is a criminal offence that could lead to imprisonment as per the current Spanish Penal Code

For Porfirio Enríquez,with pleasure and out of duty

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I. GENERAL APPROACH

1. Cinema; Article 10.1.d) of the IntellectualProperty Law and Article 86.1 of the sameLaw; author or authors. Essential Articlesof the Intellectual Property Law relative toauthors; Articles 5.1, 1 and 7.1

Cinema, etymologically, is to do with mo-vement. In turn, cinematograph, cinematogra-phic, are to do with movement that is recorded,written, captured in a container. Indeed, inGreek, kinema means “movement” and grafo“record”, “design”.

That in mind, cinematographic work is awork of the spirit contemplated as such in Ar-ticle 10.1.d) of the Intellectual Property Law andnot expressly defined in it. Nevertheless, con-sidering the aforementioned Article 10, it is in-itially a work of the spirit because it is an ori-ginal creation portrayed on a tangible support.

To be specific, it is a work constituted es-sentially by a succession of moving images. Inthis regard, at the same time, Article 86.1 of thesame Law presents an Article called “concept”,which opens the Title relative to the “Cinema-tographic and Other Audiovisual Works”, worksthat it defines as follows:

“Creations expressed by means of a seriesof associated images, with or without incorpo-

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rated sound, that are intended essentially to beshown by means of projection apparatus or anyother means of communication to the public ofthe images and of the sound, regardless of thenature of the physical media in which the saidworks are embodied”.

As is logical and obligatory, the cinemato-graphic work has to have an author or authorsto attribute the existing copyrights to on thesame, irrespective of the existence of othercopyrights on the work in question that corres-pond to the artists –actors or performers–, to theaudiovisual recordings producers and even thebroadcasting entities with practically neighbou-ring rights –strong neighbouring rights, on oc-casions– to the rights of the authors.

In this regard and from now on, it is goodto remember the literal reading of the essentialArticles of the Intellectual Property Law rela-tive to authors, Articles that are interrelated andwhich I purposely list in a different order to theone that is assigned by the Law.

Article 5.1: “The natural person who crea-tes any literary, artistic or scientific work shallbe considered the author thereof” (“that con-ceives and makes a scientific or literary work orcreates and executes an artistic one”, said –inthis regard and to be more precise– the Inte-llectual Property Regulation of 1880, still inforce –although contemplated for the formerLaw of 1879– in which the current Intellectual

Property Law is not opposed and by expressedobligation of the Seventh Temporary Provisionof the same).

Article 1 –“Originating Fact”–: “The intel-lectual property in a literary, artistic or scienti-fic work shall belong to the author (or the au-thors) thereof by virtue of the sole fact of itscreation”.

By virtue of the sole fact of its creation, donot forget this. Also, remember the following:The creation and the corresponding authorshipare a pre-juristic fact, a “prius” that Law mustnecessarily recognize, and the authority or le-gislator may not concede or otherwise author-ships with discretion.

The time of peculiar privileges related to theworks of the spirit is long gone and since theFrench Revolution, the consideration of copy-right as the most sacred of properties is proxi-mate. As a result, and as Ángel Carrasco1 says,the definition of the concept of author contai-ned in the aforementioned Article 5 of the In-tellectual Property Law belongs to the type ofdefinitions that cannot be completely arbitrary,when describing a fact whose reality comesfrom beyond the legislator.

1 Ángel CARRASCO, Commentaries on the IntellectualProperty Law coordinated by Bercovitz, Madrid, Tecnos, 1stedition, page 102.

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Therefore, any person that actively partici-pates in the creation process of a work of thespirit has to be considered as its author, andthere may be various participating parties, whe-ther due to their own will –jointly written lite-rary work, for example–, or whether it is dueto the nature of the work when it is complexand it is necessary to reveal the contributionsof different creators which happens with thea-tre work.

In the last case, we would be consideringthe so-called work of joint creation, defined inArticle 7.1 of the Intellectual Property Law asworks “that is the unitary result of the collabo-ration of two or more authors”.

2. The Cinematographic work; HollywoodOscars; cinematographic work: work withplurality of authors, work of joint creationand not collective

The cinematographic work is clearly a workof joint creation as, due to its nature, it needs aseries of diverse creative contributions. As ex-pressed by expert Román Gubern2, “Narrativefiction cinema –which at first observation, is amoving image– is the result of an integration of

2 Román GUBERN, General History of Cinema, Volu-men XII, Madrid, Editorial Cátedra (Academic Editorial),“Sign and image” Collection, 1995.

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the iconic substance of photography, of thespectacular statute of the theatre, of the struc-ture and narrative convictions of the novel and,once the sound dimension was mastered, of theacoustic expression of radiophonic drama”.

The different contributions mentioned, andothers too, are taken into account by the cine-matographic industry itself which signalizedthem, above the merely mechanical or profes-sional, through a series of awards among whichare worth noting the Hollywood Oscars3 fortheir precedence and international fame.

The first Oscars were awarded in 1929 tofilms that had been released between 1 August1927 and 1 August 1928. They were awardedfor Best Film, Best Actress and Actors, Direc-tor, Scriptwriter, Title Writer –intertitles (or ti-tles) for silent films, which explains the absenceof awards for musicians–, Photography, Deco-

3 Juan Carlos Polo –Los “Oscars” de Hollywood (TheHollywood “Oscars”); Publisher: Ediciones JC. Madrid, 1986;“Images” Collection, numbers 10 and 11– reminds us –page7– that these awards were created by the Academy of MotionPicture Arts and Sciences, an Academy created on 4 May 1927by a group of celebrities –Fairbanks, Pickford, Walsh, King,Thalberg, Meyer and others of the same calibre– to improvethe artistic quality of cinema. The first awards were given in1929 and only from 1931 were they called “Oscar” because,as the story goes, the face of the statuette given to the award-winners is similar to the uncle of the academy’s eventual exe-cutive director, Margaret Herrick, who exclaimed when shesaw the similarity.

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CONTENTS

I. GENERAL APPROACH....................................

1. Cinema; Article 10.1.d) of the IntellectualProperty Law and Article 86.1 of the same;author or authors. Essential Articles of the Intellectual Property Law relative to authors;Articles 5.1, 1 and 7.1 ......................................

2. The cinematographic work; Hollywood Os-cars; cinematographic work: work with plu-rality of authors, work of joint creation andnot collective ....................................................

3. Cinematographic work authorship; Article 87of the Intellectual Property Law; reverentialreading of the text; Law 17/66 derogated; Article 87 of the Intellectual Property Lawcontains –for some– a closed list....................

4. Arguments to defend the co-authorship of di-rectors of photography in the cinematogra-phic work: qui tacet non altrui consentire vi-detur; the line of argument a simile and thepossible analogy game; voluntas legis and vo-luntas legislatoris ..............................................

5. Regulation interpretation criteria; Article 3.1of the Civil Code. Systematic interpretation;Article 87 of the Intellectual Property Lawpresupposes a series of Articles that precedeit. The essential element in cinema are theimages. Article 10 of the Intellectual PropertyLaw: a list of works not intended to be exhaustive but by way of illustration. Article3 of the Intellectual Property Law on the ci-nematographic works of 1966, legislative pre-cedent appropriate for interpreting Article 87of the Intellectual Property Law ....................

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6. Royal Decree 526/2002 of 14 June which re-gulates measures for fostering and promotingcinematography and making co-productionfilms ..................................................................

7. Photographs, simple photographs and cine-matographic photography................................

II. THE MATTER IN THE LIGHT OF HIS-TORY AND COMPARATIVE LAW ..............

1. The matter in the light of History, with par-ticular reference to Spain: the beginning ofcinema; the Berne Convention and its variousreviews –Ber lin, 1908; Rome, 1928–; theFrench Bill on Cinematography of 1939 ......

2. Spanish Law 17/1966 on intellectual propertyrights in cinematographic works; Article 87of the current Spanish Intellectual PropertyLaw; people who have participated in the creation of audiovisual work; numerus clau-sus or numerus apertus of authors; instruc-tions on the photographs; creative role of thedirector of photography ..................................

3. Comparative law. The matter in Latin Ame-rica. Plurality of systems ................................

4. The matter in the Member States of the European Union. Plurality of systems ..........

5. The matter in the European Union Directi-ves on rental and lending rights, satellites andduration and their impact on audiovisualwork authorship ..............................................

6. The report of 6 December 2002 from theCommission to the Council, the EuropeanParliament, and the Economic and SocialCommittee on the question of authorship ofcinematographic or audiovisual works in theCommunity and its review ............................

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III. RECAPITULATION AND PROPOSALSFOR THE FUTURE..........................................

IV. DIRECTORS OF PHOTOGRAPHY ANDAUDIOVISUAL WORKS IN THE NEWSPANISH LAW ON CINEMA ........................

1. Law on Cinema. Preamble of the same. Ar-ticle 1 of the Law ............................................

2. The creative artists of audiovisual works ......3. The co-authors ................................................4. The director of photography as co-author of

the audiovisual work........................................5. Law on Cinema Law, integrated by general

legal regulations. The so-called nationality ofaudiovisual works. Spanish director of pho-tography, director of photography/author ....

6. The authorship of the director of photo-graphy, determined in accordance with theentire Spanish Legal System and also in ac-cordance with the Intellectual Property Law.Of the derogation of laws. Article 2.2 of theCivil Code. Express derogation and tacit de-rogation. The Only Derogation Provision ofthe Law on cinema ..........................................

7. Directors of photography, copyright ownerson audiovisual works. Need for an entitythat administers the rights of the directorsof photography. Remuneration and com-pensation. Rules established in the CivilCode for joint ownership. The scope of thenew Law. The First Temporary Provision ofthe Civil Code ..............................................

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