Authors' rights vs. Copyright

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

Both systems rely on different foundations: authors’ rights refer to the author as a natural person, whereas copyrights from the onset bestow all 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 recognize any moral right attached to authors, even if it is defined in the Berne Convention. However, in the practical management of economic rights, the differences are not as sharp (in both systems, the producer is in control of the work’s use). Besides the sheer size of the industry and its production capabilities, the difference lies in the capacity of authors to get organized for the protection of their profession by elaborating “legislative or contractual” regulations.

It could be said that the Latin version of authors’ 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 use), associated with the work itself.

A brief comparative study of French 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 the protection of authors’ interests has been developed with particular sophistication by groups of authors.

The notion of author

Under French law, an audiovisual work is considered as a work of collaboration, i.e. a work that several authors have contributed towards to create. Natural persons who have created the work as joint authors are recognized as authors: script, dialog, 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” (e.g. part of a contract for hiring works or services), a notion which may be likened to a commissioned work. The work’s author is therefore the producer, whether a natural or legal person (production company). The author of a film will thus be liable to change as film catalogs change hands when sold and bought.

Term of works protection

In France, the protection term of a work runs from the death of the last surviving joint author. It is thus provided by law that a work is protected for 70 years from the date of death of the last surviving co-author of a script, spoken text or dialog, composer of a soundtrack (with or without lyrics written especially for the work in question), or 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 for 95 years from the date of 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 the author and producer which must be formalized 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 Labor. Script writers and directors are consequently employees of the producer, and as such, as any other employee in the USA, may be dispensed with and replaced at any point in the writing or production process. Their names will only appear under the credits if their work meets the criteria of “credit attribution,” as provided for under the Minimum Basic Agreement (MBA).

Remuneration

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

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

These framework agreements, which are negotiated by the guilds, are subject to renegotiation every three years. 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 contracts, authors generally negotiate fees that are higher than these minimum thresholds.
  • The payment of residuals to script writers and directors. These are additional fees designed to compensate authors for any secondary use of their works (sales to a TV network, sales abroad, video, etc.) in the United States and overseas. Residuals are collected from the producers by the guilds (WGA, DGA). Unlike economic rights to which authors are entitled under French law, residuals result from contractual negotiations and are thus a matter of the bargaining power of the respective parties.
  • Creative rights, acknowledging the authors as 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, etc.
  • Working conditions: payment of overtime, rest days, etc.
  • Pension funds (retirement schemes) and social security: producers contribute to pension funds and social security schemes, in addition to the residuals paid out to the script writers and directors.

The idea behind these guild-negotiated agreements is that the author should be given a share of the profit – and success – of his/her work. Residuals can thus 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 organized themselves within powerful unions in order to negotiate the working conditions and remuneration of their members. This solidarity is the 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.

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