The duration of exploitation rights in the cinematographic work
In the previous article on authors‘ and producers’ rights to cinematographic works (click here to read it), we saw how the Copyright Law (Art. 45 and 46) provides for the exclusive right of the producer to exploit the cinematographic work, as well as to reproduce, distribute, rent and sell the originals and copies of the work itself (cf. ‘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 (art. 78 ter of the Copyright Law).
In order to be able to exercise this right, the producer is obliged to obtain the prior written consent of the authors of the subject, screenplay, music and art direction (art. 46(2) and 46 bis of the Copyright Law).
In the absence of such a rights assignment agreement, the producer is also prevented from fully exercising the exclusive rights granted to him under the L.d.A..
The duration of the right to exploit the work
Thus, the duration of exploitation of secondary rights by the producer is 50 years from the first publication or, if earlier, from the first communication to the public.
But what is the duration of the (‘primary’) right to exploit the film work?
A Youtuber, sued by the film production company Ripley’s film s.r.l. – because he was accused of having illegally published, on his own YouTube channel, some fragments of the film ‘47 dead men talking’, published in 1950 – believed it to be the same (50 years) as for the exploitation of secondary rights.
Ripley’s film, which declared itself the owner of the relevant exploitation rights of the aforementioned work, asked the court to order the removal of the video, the blocking of L.M.’s YouTube channel and its obscuration.
The maxim of the Court of Cassation
At the end of the three levels of judgement, the Court of Cassation, by order no. 14117 of 23/05/2023 (click here to read it), provided a correct interpretation of the above rules, clarifying, in its maxim, that:
- the law attributes co-ownership of the cinematographic work – and, therefore, the publication and exploitation of the rights of economic use thereof – to the ‘author of the “subject”, to the “author of the screenplay”, to the “author of the ”music’ (when it is composed specifically for the cinematographic work), to the ‘artistic director’ (director)
- the producer is exclusively entitled to exercise the rights of economic exploitation of the cinematographic work, only after the transfer, by the authors, of the ownership of the same rights;
- the duration of 50 years from the first publication or, if earlier, from the first communication to the public (art. 78 ter of the Copyright Law), in which the producer has the right to exploit the work, relates only to the so-called related (or secondary) rights, which are attributed by law directly to the film producer and which protect not the creative work itself, but the activity of fixing it on a material support
- once the ‘primary’ rights of cinematographic exploitation of the work have been acquired by the producer, the duration of such ‘exercise’ by the producer is up to 70 (seventy) years after the death of the last surviving person among the co-authors.
It follows, according to the Court, that the cinematographic work ‘47 dead man speaking’, disseminated by the YouTuber, did not fall into the public domain 50 years after its publication, since the producer’s acquisition from the authors of the right of economic exploitation of the same work gives the latter the right to exploit the work until 70 years after the death of the last of the co-authors.
In fact, the different protection for the duration of 50 years applies only to the exercise of secondary rights, attributed directly to the producer, related to the material carriers on which the work was impressed.
