Boston College Intellectual Property & Technology Forum October 4, 2006

ARE AUTEURS REALLY ALL THAT SPECIAL? Jordan S. Hatcher *; Copyright (c) 2006 Boston College Intellectual Property & Technology Forum, Jordan S. Hatcher Are Auteurs Really all that Special? An Argument Against the Special Position of Film / Video Directors under UK Law. Abstract: Ever since 1954, when film critic Francois Truffaut “asserted that the worst of Jean Renoir's movies would always be more interesting than the best of Jean Delannoy's,” the director has come to be seen as the auteur of the films she directs. This idea, while fine for film critics, has unnecessarily crept into the law. Directors currently enjoy a unique status under UK law due in part to the idea that they are the sole creative auteur of a film. This article questions this special status and suggests some changes within the framework of existing EU directives in order to bring the rights granted to those who work on a film more in line with those who work on other creative works. About the Author: 1.0 INTRODUCTION Ever since 1954, when film critic François Truffaut asserted that the worst of Jean Renoir's movies would always be more interesting than the best of Jean Delannoy's, [1] the director has come to be seen as the author, or, in French, the auteur, of the films she directs. This view of the director-as-author is known as Auteur Theory. This theory posits that, within the confines of the industrial process of filmmaking, a director can leave a specific stamp-her own distinctive style--on a film. [2] This article examines the special position of film directors in the United Kingdom under the Copyright, Designs and Patents Act 1988 (CDPA). To a certain degree, UK law accepts Auteur Theory--the idea of the director-asauthor. This places the director in a unique position. In the first section, this article will set out the exact contours of the director's rights described in the CDPA by looking at authorship, copyright term length, and moral rights. This section establishes that directors receive authorship when other contributors do not; receive a greater-than-average copyright term; and receive moral rights to the exclusion of any other contributor. After establishing the director's position under UK law, this article then analyzes the rationale behind these three unique rights. Two ideas are presented as the basis for the different laws for directors in the CDPA--the difference between creation and creativity, and the practical needs of film production. Using these two ideas, I then critique the special position of the director, and offer two changes to the CDPA. This article proposes that the copyright term should be brought in line with other terms by granting authorship to other creative contributors, and that these other contributors should also receive moral rights. 2.0 THE UK LAW ON FILMS 2.1 Legal Authorship The CDPA's definition of author is not very enlightening: Section 9 defines an author as “the person who creates.” [3] By using such a simple definition, the Act reduces the business of defining “author” to defining the

kind of works that receive copyright. [4] In the case of film, Section 5B of the CDPA states that, “‘film’ means a recording on any medium from which a moving image may by any means be produced.” [5] This definition of the word “film” includes video and, of course, a whole lot more. For purposes of this article, film will be used according to this definition. [6] The vast majority of films are made by more than one person: often by a small army of people. The CDPA also addresses when more than one person contributes to a work. Section 10 defines a “joint authorship” as “the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.” [7] Under these three simple definitions--film, author, and joint author--each crew or cast member that contributes to the creation of a film could be a joint author. The CDPA, however, carves out an exception of who exactly “shall be taken to be” a film's author. [8] Section 9 defines the author of a film as “the producer and the principal director.” [9] The producer and the director are therefore considered joint authors under Section 10 unless “the producer and the principal director are the same person.” [10] So in the case of films, the law specifically limits the general copyright principles of authorship in a film to only two roles: director and producer. This is one of the ways in which film directors get special treatment under the law; they have been set apart as members of the “special club” of copyright authors. 2.2 Copyright Term Films also receive special treatment under the CDPA in regard to term calculation. The duration of copyright in a work usually lasts for 70 years from the date of the author's death. [11] Under the CDPA, when joint authorship exists, the 70 years is measured from the date of the death of the last surviving joint author. If film fit into this paradigm, then its copyright terms would be calculated from the deaths of the producer and the principal director. Film again, however, gets special consideration in the CDPA. Section 13B(2) states the duration of copyright for films: Copyright expires at the end of the period of 70 years from the end of the calendar year in which the death occurs of the last to die of the following persons-(a) the principal director, (b) the author of the screenplay, (c) the author of the dialogue, or (d) the composer of music specially created for and used in the film. [12] One person is conspicuously absent from this provision--the producer. Three other people mysteriously appear-the screenwriter, the dialogue writer, and the composer. Films are the only media in the United Kingdom to have their terms calculated in reference to the deaths of statutory non-authors. This formula, of course, leaves open the possibility that directors will enjoy copyright protection long after another type of work would have entered the public domain. As has been pointed out, “film-makers need to É make sure that one or two of the listed ‘lives' are young, healthy, and if promiscuous, then precautionary” [13] in order for their estates to benefit. 2.3 Genesis of UK Law: EU Directives The United Kingdom, as a member of the European Union, must comply with EU law. Both of the abovementioned special dispensations for film directors result from EU Directives. The previous version of CDPA Section 9 stated that “in the case of a É film, the person by whom the arrangements necessary for the making of the recording or film are undertaken” was granted authorship. [14] By this, the CDPA limited authorship to producers.

Prior to 1992, the UK, Ireland, and Luxembourg were the only three European Community countries to grant film authorship exclusively to producers. [15] Ownership of copyright for directors in the United Kingdom started with Directive 92/100/EEC, which granted directors a copyright in the rental and lending of films. [16] Then, directors were granted a copyright in regards to satellite and cable retransmission in Directive 93/83/EEC. [17] After these piecemeal advances, Directive 93/98/EEC finally mandated that EC countries include directors as authors of films generally, instead of only for specific copyrights such as rental rights. [18] This directive also introduced the term calculation scheme based on the director, screenwriter, dialogue writer, and composer, which the United Kingdom enacted verbatim and is reproduced above. Because the UK law parallels European Union law on this topic, this critique of UK law, to a certain extent, also critiques EU law. 2.4 Moral Rights in the UK for Films Films and their authors also get special attention in the CDPA in the area of moral rights. Directive 93/98/EEC specifically leaves out moral rights from the requirement that member states grant copyright to directors. [19] Instead, moral rights originate in other sources of law. Internationally, moral rights stem from Article 6bis of the Berne Convention, which reads: Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. [20] Thus, the Berne Convention requires member countries to implement a right to object to derogatory treatment and a right to identification. Generally speaking, moral rights are personal rights, rather than economic rights, though of course this line can become blurry. [21] As one treatise states, “moral rights seek at least to protect the integrity of a work and the author's connection to it.” [22] A detailed history and theoretical explanation of moral rights is outside the scope of this article, but a few major points should be covered. By seeking “to protect the integrity of a work,” the goal of moral rights is to protect the creative expression involved in creating a work. Because of the personal nature of the creative expression in a work, moral rights also seek to protect the author's “honor or reputation.” The desire to protect the “honor or reputation” is also a result of “the belief that at least some great artists are unworldly prey to the vultures of copyright industries.” [23] Three different moral rights granted by the United Kingdom in Chapter IV of the CDPA most concern films: a right of identification, [24] a right to object to derogatory treatment of a work, [25] and a right to prevent false attribution of a work. [26] When describing each of these three rights, the CDPA speaks about “authors” when the rights involve “literary, dramatic, musical or artistic work[s],” but specifies only “director” when defining these rights in relation to films. [27] Thus, the CDPA leaves the producer out of the scope of these three moral rights, but includes the director. 3.0 RATIONALE We can now see that the director of a film has a very special place in UK copyright law: she is recognized as an author, she gets a term of copyright calculated based on the deaths of people with whom she does not have to share authorship, and she receives moral rights over her work to the exclusion of her joint legal author, the producer. This section analyzes the rationale behind the director's special position. Policy considerations in two areas: creation versus creativity and creation versus dissemination, have generally been considered to support the director. 3.1 Creation versus Creativity Think of a prototypical artist, for example, a painter. As she moves her brush across the canvass she both creates -- brings into existence -- and is creative. Now move this paradigm to film: the two become separate acts. The producer makes a film happen -- she creates -- through, among other things, finding funding and coordinating and hiring vast amounts of people. The producer's job can also be creative, and this aspect is discussed in further depth

later in the article. Suffice to say, the producer is not generally regarded as the creative force behind a film, though she is recognized as an essential part of the process. The bulk of the creative energy in a film comes from others: the director, screenwriter, cinematographer, actors, sound editor, and film editor, to name just a few. The creationcreativity dichotomy sets up the notion of legal authorship versus aesthetic authorship. [28] UK law adheres to this idea through the CDPA provisions discussed in the section above. When creation and creativity are simultaneous, as in the act of painting, the CDPA defines an author as “the person who creates.” [29] For films, the CDPA instead rests legal authorship with the director and producer. [30] The CDPA then bolsters the director's creative authorship claim by basing the copyright term around the director and three other creative authors (though not legal ones), and by leaving out the producer, who is a legal author but is often regarded as an uncreative element.. The CDPA also draws a line between the general rights of copyright owners, such as the right to communicate the work to the public, [31] and the rights meant to protect creative expression and reputation, i.e., moral rights. Moral rights, seen as protecting the creative authorship, do not reside with producers. Under this view, producers are one of the “copyright vultures” from which moral rights are meant to protect directors. 3.2 Creation versus Dissemination The bifurcation of creative and legal authorship in the CDPA begs the question, “Why give producers rights at all?” One answer was alluded to above: films are a complicated enterprise. The producer sees a film from script to screen; she buys or develops a script, hires the director, helps cast the film, and generally ensures the film gets made. Without a producer, most films would not exist. Producers, therefore, should have some form of legal authorship. Although producers typically contract for rights in the film, the law should give them default rights for their essential contribution in the form of copyright. Legal authorship acts as an incentive to create, because it allows producers, the primary movers behind getting the film made, to profit from their efforts. The law must give producers a way to exercise control, and, in order to do so, the United Kingdom has chosen to include them as authors. [32] In addition to giving producers legal control, the law must also limit the number of people that can claim authorship. The United Kingdom has a low threshold for the level of creativity required to gain a copyright. [33] Because films are highly collaborative, the large number of contributors to a film would all have copyright if the law did not set a separate limit. If everyone on a film set had a copyright, it “would open the door to claims from virtually every creative member of a film crew.” [34] This creates a serious disincentive for producers against creating films. Even when the members of a film set can waive their copyrights, the producers would know that one false step in securing a copyright waiver could cause the production to be tied up for months in a legal battle. Therefore, the law must solve the highly collaborative conundrum [35] by limiting the number of copyright owners. The United Kingdom addresses this problem by limiting authorship to producers and directors. 4.0 QUESTIONING THE SPECIAL POSITION By vesting legal rights in the director, the CDPA treats films as the work of an individual, and thus adheres to the tenets of Auteur Theory. As we have seen, the rules for films differ from the standard rules of copyright in the CDPA. This presents two special positions of directors for analysis. First, regardless of the status of producers, directors get protection over the creative expression of a film when other creative contributors do not. Section 4.1 addresses this issue, and concludes that other contributors should be added. Second, directors get protection over the creative expression of a film when producers do not. Section 4.2 focuses on moral rights and questions the rationale behind leaving the producer out of the moral rights equation. 4.1 The director as Auteur Moral rights, the one category in which only directors have rights, are the locus of this view of the director-asauteur. One right in particular stands above the others: the right to object to derogatory treatment. The right to identification and the right to prevent false attribution only affect the director personally -- another credit or corrected credit at the end of a film is unlikely to affect the film as a whole. In contrast, the right to object to derogatory treatment has the potential to affect everyone that contributed to a film. [36]

As mentioned, given the low threshold of creativity to secure a copyright, many contributors potentially could be authors. All of these potential authors have invested personally in the film, and all of these investments are subject to the director's discretion. As the sole creative contributor with the derogatory treatment right, the law transforms the director into the creative protector of the film. The fact that the lifespans of three other creative contributors help determine the copyright term bolsters the idea that the director is meant to protect the rights of others. The CDPA, however, does not give these other creative contributors any rights against the director. The director (or, more precisely, her estate) will always get the benefit of a long-lived screenwriter, [37] but the screenwriter only gets a benefit if the director uses the derogatory treatment right in a way that protects the screenwriter's reputation. For example, the famous Huston case in France demonstrates a potential pitfall of the director's right to object to derogatory treatment. The heirs of the director John Huston objected to the colorization and broadcast in France by Turner Entertainment of the film Asphalt Jungle. [38] Harold Rosson, Asphalt Jungle's cinematographer who was nominated for a Golden Globe for his work on the film, [39] would probably have objected to colorization of the carefully crafted style of the original black-and-white. [40] Thus, when the Huston estate went after Turner, it was concerned with the cinematographer's interest. But the cinematographer is not the only contributor. What of the screenwriters? They may have different views of colorization based on their creative contribution to the work, especially since they contribute words, not color. [41] To allow an objection to colorization may be to err on the side of caution in reference to the aesthetic authorship of the film: the impact may be negligible on the screenwriter's contribution, but severe on the cinematographer's contribution. However, what about the industry practice of paying residuals? [42] Residuals are payments made per screening to a contributor to a film, such as a writer or an actor. If a residuals scheme was in effect for Turner's use of a colorized version of Asphalt Jungle in France, then the writers of the film lost out on revenue due to the objections of the Huston estate. In short, the CDPA preferentially enriches the film director by giving her a long term and complete creative authority over a collaborative project in the form of the right to object to derogatory treatment. This right can financially harm the many others that worked on the film. This article proposes that the CDPA should include as authors those persons named in the calculation for the copyright term in the moral rights section: the screenwriter, dialogue writer, and composer. In this manner, the director shoulders some of the risks of joint authorship, such as the fact that joint authors may disagree with what constitutes derogatory treatment, along with the benefits of a longer term. The opposite proposal -- to remove these three persons from the term calculation section -- is impossible due to Directive 93/98/EEC. Under Directive 93/98/EEC, these three must be included for term calculation purposes. The screenwriter, dialogue writer, and composer certainly do not represent all of the creative contributors to a film, but, as mentioned earlier, the law must set some limit due to the practicalities of a highly collaborative medium. In addition, it would make sense for these three people in particular to have these expanded rights given the provisions of the CDPA. Specifically, these creative contributors are so vital to the creation of the film that the CDPA measures the film's copyright by their lives and the lives of no one else but the director. The next section questions the logic of leaving the producer outside of this limit. 4.2 Leaving Producers Out Directors were given moral rights over films even before they were considered authors for other copyright purposes. [43] Producers, however, have never had moral rights in the United Kingdom. As mentioned above, producers make films happen. But more than merely facilitating production, producers often have a significant creative input. Kauffman has made a significant case for moral rights for independent producers under United States law, and his arguments apply as well to the United Kingdom. [44] He gives the following two reasons why independent producers should fall under moral rights protection.

1. Because of the nature of securing a distribution deal, moral rights may prevent independent film producers from being taken advantage by distributors. [45] This is a “copyright vulture” justification for moral rights. 2. Producers meet the minimum of creativity normally required under the law. Producers certainly exercise “skill, judgment and labor” by their selection and development of script, director, and crew, not to mention their final cut approval. Producers, especially independent ones, have just as much of a need to maintain their “honor or reputation” by objecting to derogatory treatment as directors. Producers, as much as directors, are “only as good as their last movie.” [46] In addition to the ability to object to derogatory treatment, producers need the ability to demand identification and fight false attribution as much as directors do. The risk of harm certainly must be equal. Independent producers are distinguishable from studio producers due to the more personal nature of the independent producer's role. That is, independents typically take more risks, devote more time and energy to their film, and make more creative contributions. [47] Studio producers already have distribution deals in play, which eliminates the “copyright vulture” argument for giving producers moral rights. [48] The requirement for creativity may also help delineate independent producers from studio producers who merely negotiate a deal or the “executive producer” who merely writes a check. While the case for the independent producer may be more compelling, there is still a strong case for any producer to have the benefit of moral rights. Australia granted producers, along with directors and screenwriters, moral rights in 2000. [49] Far from going down in flames, Australia's film industry is, by some accounts, thriving. [50] Despite the cynical view of some that “... to assign moral rights to the producer is ... a bit like leaving the doberman to look after the kids,” [51] producers do contribute to the creativity involved in a film and do deserve protection. 5.0 CONCLUSION In order to eliminate the unjust position of directors under the CDPA, the UK Parliament should amend the CDPA in order to give moral rights to screenwriters, dialogue writers, composers, and producers. This amendment should put an end to the unjust and uniquely-long calculation of terms currently enjoyed by directors. The amendment should, in addition, permit a right to other key creative members of a collaborative work to object to derogatory treatment of that work. Adding these people will help to balance out the equation. An amendment of this sort would be logical, achievable, and, above all, fair. *. Jordan S. Hatcher. JD, University of Texas School of Law; LLM University of Edinburgh, Scotland. Member, State Bar of Texas. http:// opencontentlawyer.com/ [1]. François Truffaut, Une certaine tendence du cinéma français, Cahiers du Cinéma, Jan. 1954.. Truffaut also stated that there are no good and bad movies, only good and bad directors. Id. [2]. Id. [3]. Copyright, Designs and Patent Act, 1988, c. 48, § 9(1) (UK) [hereinafter CDPA]. [4]. For this idea in relation to U.S. law, see Stuart K. Kauffman, Motion Pictures, Moral Rights, and the Incentive Theory of Copyright: The Independent Film Producer as “Author”, 17 Cardozo Arts & Ent LJ 749, 766-67 (1999). [5]. CDPA § 5B (1). [6]. Though I know many film geeks would abhor the use of the word in this way. Film, in many circles, is only supposed to be used to refer to movies that use celluloid.

[7]. CDPA § 10. [8]. CDPA § 9(2). [9]. CDPA § 9(2)(ab). [10]. CDPA § 10(1A). [11]. CDPA 1988 § 12. [12]. CDPA 1988 § 13B(2). [13]. William Cornish & David Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 413 (5th ed., Sweet & Maxwell 2003). [14]. Available here: Office of Public Sector Information, Copyright, Designs and Patents Act 1988 (c.48), http:// www.opsi.gov.uk/acts/acts1988/Ukpga_19880048_en_2.htm#mdiv9 (accessed Nov. 9, 2005). [15]. Report From the Commission to the Council, the European Parliament, and the Economic and Social Committee on the question of authorship of cinematographic or audiovisual works in the Community, COM/2002/0691, at II. (2.) [hereinafter Report on authorship of cinematographic or audiovisual works]. [16]. Council Directive 92/100/EEC on rental right and lending right and on certain rights related to copyright in the field of intellectual property, art. 2, 1992 O.J. (L 346) 61-66. [17]. Council Directive 93/83/EEC on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission, art. 1(5), 1993 O.J. (L 248) 15-21. [18]. Council Directive 93/98/EEC harmonising the term of protection of copyright and certain related rights, art. 2., 1993 O.J. (L 290) 9-13. [19]. Id. at Recital 21. [20]. Berne Convention for the Protection of Literary http://www.wipo.int/treaties/en/ip/berne/ (accessed Nov. 8, 2005).

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[21]. Kauffman, supra note 4, at 758; Cornish & Llewelyn, supra note 13, at 453. [22]. Cornish & Llewelyn, supra note 13, at 453. [23]. Id. [24]. CDPA § 77. [25]. CDPA § 80. [26]. CDPA § 84. [27]. See CDPA § 77(1); § 80(1); § 84(1)(b). [28]. See Kauffman, supra note 4, at 769-70.

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[29]. CDPA § 9(1). [30]. CDPA § 9(2)(ab). [31]. CDPA § 16(2)(d). For the general rights of the copyright owner, see Chapter II of the CDPA. [32]. Report on authorship of cinematographic or audiovisual works, supra note 16, at II.1. [33]. See e.g. Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., [1964] 1 W.L.R. 273, (Eng.) (granting copyright in football betting coupons). [34]. Kauffman, supra note 4, at 762. [35]. See Kauffman, supra note 4, at 762. [36]. It has even been suggested that because of the prevalence of DVD extras other creative contributors have increased prominence. Nicholas Rhombes, The Rebirth of the Author 1000 Days of Theory, Oct. 6, 2005, http:// www.ctheory.net/articles.aspx?id=480. DVDs and other forms of cinematic deconstruction only further strengthen the auteur theory, as everyday viewers see and hear from previously invisible film workers (editors, production designers, special effects designers, cinematographers, screenplay writers) who are themselves auteurs. [37]. By long-lived, I mean the screenwriter at least outlives the director. [38]. Huston v. Turner Entertainment Co., [1992] E.C.C. 334. [note: I couldn't find that case: is this the one you mean? If not, can you point me to where I can find the case? Turner Entertainment Co. v. Huston, Court of Appeal of Versailles [France], Combined Civil Chambers, Decision No. 68, Roll No. 615/92 (Dec. 19, 1994). [39]. See TheGoldenGlobes.com, Harold Rosson www.thegoldenglobes.com/welcome.html?nominee/rosson_harold.html (last visited Nov. 8, 2005).

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[40]. Rosson was dead in 1991 when the Huston case was decided. See The Internet Movie Database, Harold Rosson http://imdb.com/name/nm0005849/ (last visited Nov. 8, 2005). [41]. Huston was himself one of the screenwriters. See The Internet Movie Database, Asphalt Jungle http://imdb.com/title/tt0042208/fullcredits (last visited Nov. 8, 2005). [42]. For example, see Writers Guild of America www.wgaeast.org/mba/writers_residuals.html (last visited Nov. 8, 2005).

East,

Residuals,

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[43]. Cornish & Llewelyn, supra note 13, at 466. [44]. Kauffman, supra note 4. [45]. Id. at 751-52. [46]. For a great documentary about this tendency of Hollywood in regards to producers, see The Kid Stays in the Picture (Warner Bros. 2002). [47]. Kauffman, supra note 4, at 773-782. [48]. Id.

[49]. The Copyright Amendment (Moral Rights) Act 2000 (Australia). For more on the act, including a link to the act as incorporated into Australian copyright law, see Department of Communications, Information Technology and the Arts, Guide to the Copyright Amendment (Moral Rights) Act 2000 -- Fact Sheet, http://www.dcita.gov.au/ip/parallel_importation/fact_sheets_and_background_ information_on_ip/guide_to_the_copyright_amendment_(moral_rights)_act_2000_-_ fact_sheet (last visited Nov. 8, 2005). [50]. See generally the facts and statistics collected at Australian Film Institute, Get the Picture, http://www.afc.gov.au/gtp/ (last visited Nov. 8, 2005). [51]. Mr Steve Bisley, at the hearing of the Senate Legal and Constitutional Legislation Committee on August 19, 1997, 85, as quoted in Elizabeth Adeney, Defining the shape of Australia's moral rights: A review of the new laws, n.29 4 I.P.Q. 291, 297 n. 29 (2001). 2006 B.C. Intell. Prop. & Tech. F. 100401