Authors‘ and producers’ rights to the cinematographic work
The Law on Copyright (Law no. 633 of 20.04.1941 or ‘L.d.A.’) expressly provides, in art. 12, that the author of a work (literary, musical, cinematographic, etc.) has the exclusive right to publish it and use it economically in any form and manner, original or derivative.
In the cinematographic field, the authors of the work (film, TV series, documentary, etc.) are, pursuant to Article 44 of the L.d.A. the author of the subject, the screenplay and the music, respectively, as well as the artistic director (director).
The term of the economic exploitation rights of the cinematographic or assimilated work lasts until 70 (seventy) years after the death of the last surviving person among the aforementioned co-authors (Art. 32 L.d.A.).
However, the subsequent Articles 45 and 46 of the Copyright Law prescribe that the exercise of the rights of economic exploitation of the cinematographic work, concerning the cinematographic exploitation thereof, belongs to the person who organised the production of the work itself (i.e. the producer).
These rules seem to be in conflict with each other, since the right of economic exploitation of the work could be exercised, indiscriminately, by both the authors mentioned above and the producer.
The assignment of the rights to the producer
This is not the case, since the subsequent articles expressly provide for the producer’s obligation to obtain the prior written consent of the authors of the subject matter, screenplay, music and art direction in order to “perform or project elaborations, transformations or translations” of the work (art. 46(2)), as well as to disseminate it (art. 46 bis L.d.A.).
In the absence of such a rights assignment agreement, the producer is also prevented from fully exercising the exclusive rights granted to him by the L.d.A..
The exclusive rights of the producer
The exclusive rights of the producer include, among others, the exploitation of the cinematographic or audiovisual work (art. 45 of the L.d.A.), as well as the reproduction, distribution, rental, sale of the originals and copies of the work itself (so-called “secondary rights“).
The latter rights may be exercised by the producer for a period of 50 (fifty) years from the first publication or, if earlier, from the first communication to the public, as provided for by Article 78 ter of the Copyright Law.
Authors’ rights
In practice, the content of the contracts that the above-mentioned authors (subject, screenplay, direction, music) enter into with producers mainly concerns the list of the numerous rights of economic use of the work that they hold and that, for the reasons indicated above, allow producers to publish and distribute the cinematographic or audiovisual work.
But, after the assignment of the economic exploitation rights, which rights ‘remain’ with the authors?
The right to authorship and opposition
Certainly the inalienable and non-transferable right – provided for in Article 20 of the Copyright Law – to “claim the authorship of the work and to object to any distortion, mutilation or other modification, and to any act to the detriment of the work itself, which might be detrimental to its honour or reputation”.
Thus, for example, the author of the screenplay of a film may prevent its publication if he discovers that his screenplay has undergone qualitative changes of such a magnitude that his artistic reputation may be harmed.
However, in the case of works of architecture, the author may not object to changes to the work that become necessary during its realisation or if it has already been realised. Nor may he prevent its execution if he has known and accepted the aforementioned changes (Art. 22 L.d.A.).
The author, on the other hand, shall have the right to decide on and make changes to the work himself, if the work is recognised as having an ‘important artistic character’ by the competent state authority’ (Art. 20(2) of the Copyright Law).
The right to fair compensation and automatic contributions
Among the main rights that authors have, following assignment, are:
- The mention of their names, with an indication of their professional quality and their contribution in the work, among the titles of the cinematographic film;
- the acknowledgement of an adequate and proportionate remuneration, to be paid by the broadcasting organisations, for each use of the works themselves by means of communication to the public over the air, by cable and by satellite (Art. 46bis (1) A.A.L.)
- the right to freely dispose of the cinematographic work, if the producer does not complete it within three years from the day of delivery of the literary or musical part, or does not have the completed work screened within three years of its completion (Article 50 of the Copyright Law).
Moreover, as already written in the previous article on automatic contributions in the audiovisual sector (click here to read it), the director and the authors of, respectively, the subject, the screenplay and the music of the cinematographic/audiovisual work are each entitled to a share equal to 1.5% of the automatic contributions requested by the Producer/Distributor to the General Directorate for Cinema and Audiovisual, at MimIt, calculated on the basis of the value of the work and its results.
