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The birth of copyright protection

Copyright protection is born for a film and other audiovisual work as soon as the work is created. There may be several versions of a work, in addition to demonstration versions, trailers and teasers. Each of these is a work in itself and enjoys copyright protection, provided they meet the prerequisite of originality. Also a draft can receive copyright protection.  It is also noteworthy that the group of authors is not identical at different stages of production.

The birth of copyright for film does not require the publication of the work nor does copyright need to be separately registered. The birth of this right does also not require the reservation of a copyright or any specific identification. For example, the © mark may be used by any right holder. Although the mark often has informative value, it does not in itself create or assign a copyright.

The work's artistic quality, or the time it took to create the work, is not significant as far as the receipt of copyright protection is concerned.  Also, the work's level of technical quality is not significant. A poor work is protected in the same way as a high-quality one. It is good to remember that protection is only granted to the form of expression and manifestation of a work, which is the result of an author's creative intellectual work. The Copyright Act does not therefore prevent another person from creating their own work using the same subject, theme, idea, technique or principle.

 

The requirements for the birth of copyright

The author of a work

A copyright always belongs to the author of the work. The author has the exclusive right to control the use their work. The person who created the work is regarded its author. The author is always a natural person i.e. a person; societies and companies i.e. legal persons may only receive copyright protection on the basis of rights transferred by the original authors.  The term right holder is, in turn, used of the person who owns or manages rights, for example, the right to reproduce, distribute, adapt or translate. The right holder may be an author or another person, to whom the author has transferred all or part of their copyrights.  The right holder may be a natural or juristic person. The right holder may thus be an author, producer or publisher etc. Often it is the right holder who uses the © sign in connection with a copy of a work. Copyright is, however, independent of the mark and is valid even if the author does not use the mark.

There are no specific standards in the Copyright Act regarding the authors of audiovisual and film works. Everyone who contributed in the making of the film with their creative and original work have a copyright to the film.  It is noteworthy, that the person on whose existing work, such as a novel, the film's script is drafted, will usually be left outside the group of film's authors, unlike the film's scriptwriter. The position of the original work's author can however be arranged by agreement, for example, so that they have the right to be accredited in the end credits of the film.

The Copyright Council opinion 1989:15 states that: "A copyright to a film work is created to the people involved in its making with a  sufficient creative contribution.  Such persons are, at least, the scriptwriter, if the film is realised following a preplanned structure of events or narration, and the director of the film, where they have with their creative activities influenced the end result. Also, the film's director of photography has a right to the film work, if they have acted independently and not just followed instructions." A sound designer and set designer may also, by their independent and original contribution, be equal to these principals. Also, the result of a costume designer's creative work in a film may meet the prerequisites of originality. An exhaustive list of a film's authors, whose creative contribution may meet the originality requirement, is impossible to provide in advance. The film's producer has a related right to the film as intended by 46a of the Copyright Act. The related rights of actors are defined in Sections 45 and 47 of the Copyright Act.

For the performance to be presentable, distributable and otherwise exploitable, it is appropriate that one person, usually the producer, can in principle control the use of the film's rights. As a result, the producer will ask for the transfer of performance rights in the agreements of scriptwriters, actors, directors and other related agreements. How much the original script may be adapted and whether the director, or the producer, has final cut, is up to negotiation. In most cases, it is appropriate that the author transfers to the producer their share of economic copyrights for the performance, so that the producer may exploit the performance to the best of their ability.


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