Author’s  rights

    Author’s rights vs. copyright

    The system of “authors’ rights” has traditionally been opposed to that of Copyright, and in particular in the area of audiovisual and cinematographic production.

    Both systems rely on different foundations as the authors’ rights refer to the author as a natural person whereas copyrights from the onset bestow all the rights on the producer.

    These systems, however, are not perfectly homogenous nor are they diametrically different in their application.  In terms of moral rights, which are associated with the author as a natural person, there is an outright opposition as copyright does not recognise any moral right attached to authors even if it was thus defined in the Berne Convention.   But in the practical management of economic rights, the differences are not as sharp (in both systems the producer is the one in control of the work’s exploitation), and besides the sheer size of the industry and its production capabilities, the difference lies in the capacity of authors to get organised for the protection of their profession by elaborating “legislative or contractual” regulations.

    One may say that the Latin version of author’s rights puts the emphasis on the author as a person as opposed to the Anglo-Saxon “copyright”, i.e. literally the right to copy (which is a right of exploitation) that is associated with the work itself.

    A brief comparative study of French law and American law may provide a better insight into the foundations of each of these systems, as France and the United-States are two countries where protection of authors’ interests has been developed with particular sophistication by groupings of authors.

    The notion of author

    Under the French law, an audiovisual work is considered as a work of collaboration, i.e. a work that several authors have contributed to create.  Natural persons who have created the work as joint-authors are recognised to be authors: script, dialogue, adaptation, soundtrack, adaptation of a pre-existing work and film direction (art. L113-7).

    In the United-States, audiovisual works are considered as “works made for hire“(such as part of a contract for hiring of works or services), a notion which may be likened to a commissioned work.  The work’s author is then the producer, whether a natural or legal person (production company).  The author of a film will therefore be liable to change as film catalogues change hands as they are sold and bought.

    Term of works protection

    In France the protection term of a work runs from the death of the last survivor amongst its joint-authors; it is thus provided by law that a work is protected during 70 years from the death of the last surviving of the following co-authors: script, spoken text or dialogues, composer of soundtrack with or without lyrics written especially for the work in question, main director.

    In the United States, the term generally runs from the date of publication of the work: an audiovisual or cinematographic work is protected during 95 years like from its publication.

    Law applicable to script writers and directors

    Under French law on literary and artistic property, there are two major categories of authors’ rights: moral rights and economic rights.  This law also governs the relations between author and producer which must be formalised in a written agreement whereby the author assigns his/her economic rights to the producer.

    In the United States, the relations between creators (natural persons) and production companies are governed by the Code of Labour.  Script writers and directors are therefore employees of the producer and as such, just like any other employee in the USA, may be dispensed with at any point in the writing or production process, replaced by others, and their names will only appear on the credits if their work meets the criteria of “credit attribution” as provided for under the MBA (Minimum Basic Agreement).

    Remuneration

    Under French law, authors should mandatorily receive remuneration proportional to the proceeds of the work’s exploitation in exchange for assigning the associated rights to the producer.  Collective authors’ rights management societies have therefore negotiated master contracts with the users whereby a proportional fee will be paid back to the authors.

    In the United States, the unions representing the script writers (WGA, Writers Guild of America) and directors (DGA, Directors Guild of America) have negotiated collective bargaining agreements or so-called “ Minimum Basic Agreement “(MBA) with American producers.

    These frameworks agreements negotiated by the guilds are subject to renegotiation every 3 years.  These agreements are extremely precise and detailed.  They cover:

    • the economic rights of script writers and directors by setting minimum remuneration thresholds (according to the length of the film, its budget, etc.); in their contracts, authors generally negotiate fees that are higher than such minimum thresholds.
    • the payment of  “residuals” to script writers and directors : these are additional fees designed to compensate the authors for any secondary exploitation of their works (sales to a TV network, sales abroad, video, etc.), in the United States and overseas. These “residuals” are collected from the producers by the Guilds (WGA, DGA).   Unlike economic rights which authors are entitled to under French law, “residuals” result from contractual negotiations and are thus a matter of the bargaining power of the respective parties.
    • “creative rights”, rights acknowledging the authors a form of “paternity” relative to the work (“a film by... ”, etc.), and Credits: mentions appearing in the credits in terms of position, size, sequence.
    • working conditions: payment of overtime, rest days, etc.
    • pension funds (retirement schemes) and social security: producers contribute to the pension funds and social security schemes in addition to the residuals paid out to the script writers and directors.

    The idea behind these agreements negotiated by the Guilds is that the author should be given a share of the profit -and success- of his/her work and therefore the “residuals” can be considered as the proportional remuneration of authors.

    Contrary to a widespread misconception, American copyrighting cannot be likened to a fixed remuneration granted to authors insofar as American script writers and directors have organised themselves within powerful unions in order to negotiate the working conditions and remunerations of their members.  This solidarity is a key to successful negotiations with producers; as employees, script writers and directors are entitled to resort to industrial action and bring to a total standstill one of primary industries contributing to the American GDP...