Rights on audiovisual work: law and practice

Keywords: audiovisual work, rights on the movie, rights on the television program, right on video clip, rights on a complex object, rights of producer, copyright, intellectual property, result of intellectual activity, the exclusive right

Determination of rights of various persons, which is caused by the creation of audiovisual works and protection of such rights is one of the most topical and complicated issues in the sphere of intellectual property protection.

In accordance with article 1263 of the civil code of the Russian Federation (part four)" dated by 18.12.2006 N 230-Federal Law (as amended on 13.07.2015), an audiovisual work is a work, "...consisting of fixed series of interrelated images (accompanied or unaccompanied by sound) and intended for visual and auditory (if accompanied by sound) perception by appropriate technical devices." The most "typical" category of audiovisual works are movies, as well as "all works expressed by means, similar to cinema" (TV programs, videos, etc.)

On any audiovisual work there is in a sense a "two-level authorship". In accordance with the provisions of the abovementioned article 1263 of the civil code of the Russian Federation, the authors of any audiovisual works are three persons: Director, screenwriter and composer, who is the author of a musical work, specially created for this work. The Director is the person who supervises the production of audiovisual works and performances by the cast; the screenwriter is the person who created a literary work (the script), which was the basis for the audiovisual work; the composer wrote the music and/or text used in the work. The authors have the right of authorship and other personal (non-property) rights in respect of the work.

However, audiovisual works has a second “level” of authorship: in accordance with point 5 of the mentioned article, "...every author of a work, which became an integral part of the audiovisual work, as existed previously (the author of the work that was the bases of the script and others), and created in the process of working on it (cinematographer, production designer, and others), has the exclusive right to his work, with the exception of cases when this exclusive right was transferred to the manufacturer or other persons or passed to the manufacturer or other persons on other principles provided by law."

Thus, as the audiovisual work can include (and typically includes) is not only directing, screenplay and music, but also numerous other objects. So, such work can have a quite large number of authors, whose rights and interests should be taken into account in respect of each particular audiovisual work.

The civil code of the Russian Federation contains special provisions on the rights of the composer: point 3 of article 1263 of the civil code of the Russian Federation states that the composer retains the right to remuneration in case of the public performance of a work or its broadcasting in the air or by cable. It should be noted that this provision applies even if the exclusive right included a musical work in an audiovisual work which belongs to another person. Public performance is "...work introducing in live performance or through technical means (radio, television and other technical means), as well as showing of an audiovisual work (with or without accompanying sound) in a place opened for free visiting, or in a place where there is a significant number of persons not belonging to ordinary family circle, irrespective of whether the product is perceived in the place of its representation or showing or in other place simultaneously with representation or showing of a work"; works broadcasting in the air is "...the broadcasting of a work to the public by radio or television, except broadcasting by cable. In this case, a broadcasting is defined as any act by which the work becomes accessible for aural and (or) visual perception irrespective of its actual perception by the public..."; broadcasting by the cable is "broadcasting of a work to the public by radio or television via cable, wire, optic fiber or similar means..." (article 1270 of the civil code of the Russian Federation "the Exclusive right on a work").

Such several rights consolidation of the composer seems to be unusual and may lead to the conclusion regarding certain inequality between the composers and other authors. So, the citizen of the Russian Federation G. P. Lyubimov field a complaint to the Constitutional Court of the Russian Federation in which he asked to recognize contravention of the regulation of the Russian Federation Constitution - paragraph 3 of article 1263 of the civil code of the Russian Federation. The Court of general jurisdiction dismissed a P. G. Lubimov's claim regarding Joint-Stock Company «TV Center» on the protection of personal non-property rights and on remuneration payment which is commensurate with the remuneration paid to composer in connection with the television screening of the movie, one of the authors (the Director) he was.

At the same time the court of first instance declared as insolvent links to the right of composers to receive remuneration for use of music in movies, and dismissed the applicant's claims, who, accordingly, requested to recognize his, as the Director, rights to receive compensation on similar terms applicable to composers. The Constitutional court didn't examine the constitutionality of this article and, in general, refused to accept for consideration the complaint, as "...the decision of a question on consolidation in the current civil law such an approach for the Director as the author of a work is the prerogative of the Federal legislator and the Constitutional Court of the Russian Federation jurisdiction in accordance with articles 10 and 125 of the Constitution of the Russian Federation." [Decision of the Constitutional Court of the Russian Federation dated by 27.05.2010 N 690-O-O "On refusal in admission for consideration of the complaint of the citizen Lyubimov Pavel Grigorievich violation of his constitutional rights by paragraph 3 of article 1263 of the Civil code of the Russian Federation"]

In addition to the authors, "the list" of individuals with certain rights in respect to audiovisual works, includes so-called "manufacturer". "The producer of the audiovisual work" is the person who organized the creation of this work, and its rights are defined as rights of the Creator of any complicated subject to copyright.

In accordance with paragraph 19.1. of the decisions of the Plenum of the Supreme Court and the Higher Arbitral Court [resolution of the Plenum of the Supreme Court of the Russian Federation N 5, Plenum of the Higher Arbitral Court of the Russian Federation N 29 dated by 26.03.2009 "On some issues arising in connection with introduction in action of part four of the Civil code of the Russian Federation"], "Under the person who organized the creation of a complex object recognizes the person who is responsible for organizing the process of creating of such object, particularly a person who has taken the initiative and responsibility for creating the respective object (producer, etc.)."

The creator, as a rule, is the producer. And the producer is, in accordance with the law on cinematography, "the individual or legal entity who has assumed the initiative and responsibility for the financing, production and distribution of the film" [Federal law dated by 22.08.1996 N 126-FL (as amended on 05.05.2014) "On state support of cinematography of the Russian Federation"]. However, a "creator" of an audiovisual work can be not only a producer, but also, for example, the employer of the respective authors, the Russian Federation, subjects of the Federation in respect of the relevant works, etc.

The creator has the exclusive (property) rights on audiovisual work as a whole, unless otherwise follows from its contracts with the authors of the work. The manufacturer may also provide own name (or name – for legal entities) in the work.

Article 1240 of the civil code ("Usage of result of intellectual activity within a complex object") specifies the rights of the creator, as the entity that organized the creation of a complex object consisting several protected results of intellectual activity: creator "...acquires the right to use the above results on the basis of assignment agreements of exclusive right or license agreements concluded by such person with the holders of exclusive rights to corresponding results of intellectual activity." And, if the included in the work object was created for that purpose, such contract, unless the agreement of the parties stipulates otherwise, is deemed as assignment agreement of the exclusive right. In accordance with paragraph 1 of article 1234 of the civil code of the Russian Federation, "under assignment agreement of exclusive right one party (right holder) transfers or undertakes to transfer its exclusive right to result of intellectual activity or means of individualization in full scope to other party (assigner)». License agreement providing for the use of result of intellectual activity in the composition of a complex object is for the whole term and in respect of the entire territory of the respective exclusive right, unless the contract provides otherwise.

It should be noted that such adjustment of the rights of different persons in respect of audiovisual works applicable only to those works that were created after the introduction of the relevant provisions of the civil code. Thus, in accordance with article 486 void the civil code of the RSFSR ("Copyright on movies, television films, radio and television broadcasts"), "Copyright on movie or television film belongs to the company that conducted the survey...the Author of script, composer, director, chief cameraman, stage artist and authors of other works, which became an integral part in a movie or TV film, everyone owns the copyright on his work. Copyright on radio and television programs belongs to radio and television organizations which transmission it, and work included in these shows belong to their authors." (under "copyright" meant right "to publish, reproduce and distribute his work by all ways permissible by law under his own name, under the conditional name (pseudonym) or without a name (anonymously); to inviolability of the work; to receive remuneration for using the work by others"). These provisions apply to audiovisual works created in the period of their action.

After analyzing the fundamentals of the legal regulation of audiovisual work, is necessary to proceed to the consideration of judicial practices, which significantly expands the range of issues that may arise in the settlement of disputes between the various subjects in relation to such works.

That's way there is very topical issue on the rights to the characters as part of the work. Thus, the review of jurisprudence, approved by the Presidium of the Supreme Court, provides that "Plaintiff applying to the court for the protection of the rights to the character as part of the work, must prove that this character exist as a distinct result of intellectual activity.". This is based in particular on paragraph 7 of article 1259 of the civil code of the Russian Federation ("Copyright objects"): "...Copyright is extended to part of a work, its title, the character of the work, if their nature can be recognized as an independent result of creative labor of the author and meet the requirements established by paragraph 3 of this article." Paragraph 3, in its turn, establishes that "copyright is extended to the published and unpublished works expressed in any objective form, including written, oral form (public pronouncing, public performance and other similar form), in the form of an image, audio or video recording, in three-dimensional form". Therefore, for self-legal protection of the character of an audiovisual work it is necessary that this character was an independent result of creative labor of the author and was expressed in an objective form. The review contains the following clarification: "...the character of an audiovisual work as an independent result of the creative work of an author can be created and recorded in the audiovisual series dynamic hand-drawn cartoons (puppet) images of the main characters, compared to other existing heroes with this combination of features that make them original, recognizable and distinctive from other characters due to their appearance, movements, voice, facial expressions and other signs intended for visual and auditory (if accompanied by sound) perception... during the analysis of the question if a specific result is a subject of copyright, courts should consider that ... it is only the result produced by the creative work. This should be borne in mind that until proven otherwise, the results of intellectual activity are assumed to be produced by the creative work." Therefore, in the absence of evidence that any character exists as a distinct result of intellectual activity, it is not possible to determine the objects of copyright, the nature of the violation by a third party of such rights, the amount of compensation for breach of the [ "Court practice overview on civil cases related to disputes on protection of intellectual property rights" (approved by The Presidium of the Supreme Court on 23.09.2015)]

The following step of practice overview emphasizes the integrity and unity of the audiovisual work and establishes the following: "Illegal use of works part, title, character is an infringement of the exclusive rights on a work generally, unless it is proved that a part of a work is an independent object of protection."; "joint use of multiple parts and (or) characters of one work constitutes a single fact of usage". So, illegal use of the character of a work is an infringement of the exclusive rights on work itself and, for example, the sale of goods, which contains images of characters of one work, should be regarded as one offence.

However, this integrity and unity of the audiovisual work is not applicable in all cases. So, a lot of disputes are aroused by the ability to use the audiovisual work for the creation of parodies. In accordance with paragraph 4 of article 1274 of the civil code of the Russian Federation ("the Free use of works for informational, scientific, educational or cultural purposes"), "Works creation in the genre of literary, musical or other parody or in the genre of caricature on the basis of another (original) of lawfully published works and the use of these parodies or caricatures are permitted without the consent of the author or other holder of exclusive rights to the original work and without payment of remuneration." Therefore, the author of the original work must not prohibit the use of their work this way on the basis of the provisions of this article. And only if the parody or caricature denigrates honor, dignity or business reputation of the original Creator, he has the right to defend them in the manner prescribed in part one of the civil code of the Russian Federation.

However, the Presidium of the Higher Arbitron Court of the Russian Federation in the Resolution dated by November 19th, 2013 N 5861/13 found that during the processing of audiovisual works, including the creation of a parody on it, is necessary to respect the rights of the author (owner) of the piece of music that were not be processed. In the present case, the Presidium of the Higher Arbitron Court of the Russian Federation has examined an application of Limited Liability Company "First musical Publishing house", which is required to pay compensation for violation of exclusive copyright on a song titled "London", "San Francisco", "Ciao, Bambino" (of boys band "Carmen"), comprising their usage in the television program "Stilyagi". According to the applicant opinion, this broadcasting is not a parody, so they can be used only with permission of the copyright holder. However, the TV show "Stilyagi" was recognized as a parody: under this show famous people (actors, sportsmen, actors etc.) prepare a parody of the original performances on the clips, fragments of musical films, musicals and spectacles.

The Presidium of the Higher Arbitron Court of the Russian Federation decided that a musical work can exist independently or as part of a complex audiovisual work and be protected independently of its parts; that is required to respect the rights of the author (owner) of music work which were not processed. In this dispute, there is reason for the recognition the fact of usage of disputable musical works as separate conservation units without authorization of the right holder in the controversial television show. The Presidium of the Higher Arbitron Court of the Russian Federation cancelled decisions of the lower courts and met the claims of LLC "First musical Publishing house", decided to collect from the infringer compensation, to oblige him to publish this decision and to prohibit the use of abovementioned songs in the program "Stilyagi" [resolution of the Presidium of the Higher Arbitron Court of the Russian Federation dated by 19.11.2013 5861/13 N by the case N A40-38278/2012-12-166].

Summarizing, it can be noted that audiovisual works have a special place among the objects of copyright. The specifics of granting legal protection to such works in general and their individual elements are fixed in the Russian legislation, in the legislation of foreign states, as well as in most international agreements.

Audiovisual work is a complex object containing several protected results of intellectual activity. Moreover, such a unification of several works in one is not mechanical, and by this characteristic audiovisual work is different from composite works (i.e. works which is the result of creative work by selection or arrangement of materials).

As a result of combining of different elements in film, video, show and etc. occurs, a single object, which "dissolves" in itself included works, which are a result of creative contributions of many individuals - the authors. However, is not reduced to a simple combination of such deposits, but outputs the general creative result to a whole new level. In such case this audiovisual works, as a rule, are very valuable from an economic point of view.

However, the legal regulation of audiovisual works in terms of establishing the rights of various persons in the different parts of a work, as well as possibility of protection of these parts as independent objects, irrespective of the other elements, seems to be quite contradictory, and also must be accompanied with coherent and consistent jurisprudence.