Script as an object of copyright

As a rule, an ordinary viewer perceives what he sees as a single object of creativity, sometimes not suspecting that there are many protected results of intellectual activity created by different authors. So, for example, if we talk about a movie, then we can single out such objects as acting, music, choreography, scenery, costumes or even makeup, each of which has its own legal regime under IP law. At the same time, we believe that at the forefront of every movie or performance is a piece of literature called a script, to which this article is devoted.

Talking about a script as an object of copyright should begin with the general provisions of civil law on copyright. The peculiarity of the object under consideration can already be seen in paragraph 1 of Article 1259 of the Civil Code of the Russian Federation, which fixes the list of objects of copyright, where a “scripted work” is named as a separate one.

By virtue of Article 1257 of the Civil Code of the Russian Federation, “the author of a work of science, literature or art is recognized as a citizen whose creative work it was created. The person indicated as the author on the original or copy of the work or otherwise in accordance with paragraph 1 of Article 1300 of this Code shall be considered its author, unless otherwise proven.”

Since paragraph 4 of Article 1259 of the Civil Code of the Russian Federation says that there is no need to register a work or comply with any other formalities for the emergence, exercise and protection of copyright, insofar as paragraph 1 of Article 1300 of the Civil Code of the Russian Federation states that any information that identifies a work is recognized as copyright information, the author or other right holder, or information on the terms of use of the work, which is contained on the original or copy of the work, attached to it or appears in connection with broadcasting or by cable or bringing such work to the public, as well as any numbers and codes, which contain such information.

I would like to separately note that the legislator directly indicates the need of its expression in an objective form (for example, written), in connection with which the idea of a scripted work, without an appropriate embodiment in a form that makes it possible to perceive it, will not be protected by copyright (Article 1257, paragraphs 3, 5 of Article 1259 of the Civil Code of the Russian Federation, Resolution of the Seventeenth Arbitration Court of Appeal dated February 5, 2019 in case No. A50-43464 / 2017).

In this context, it is impossible not to mention the case "Odin-v-Odin ("One in One") VS "Toch-v-Toch" ("Exactly"), which has already become a kind of "classic" of judicial practice, in which lawyers acting on the side of the TV program "One in One" claimed copyright infringement on the format of the program, fixed in the so-called "industrial bible". Denying the claims, the court pointed out that the format of the program includes methods, ideas and sequences of actions, which does not apply to the creative process, but only describes the production technology, and, therefore, is not an object of copyright. In addition, the court noted that the "production bible", in which the format of the program was expressed, cannot be considered as a TV show script, since it cannot be a script for a cycle of TV shows, each of which is filmed according to its own script. The legitimacy of the decision made by the court of first instance was verified by higher courts (ruling of the Supreme Court of the Russian Federation dated November 24, 2015 in case No. A40-84902 / 2014.).

The selection of a scripted work as an independent object of copyright indicates the direct provision of its author with the opportunity to use the rights belonging to him, as well as to protect them from illegal encroachments by third parties, in particular, by applying the methods of protection listed in Articles 1251 and 1252 of the Civil Code of the Russian Federation.

Moreover, according to Part 7 of Article 1259 of the Civil Code of the Russian Federation, copyright extends to a part of the work, its title, characters of the work, if by their nature they correspond to the characteristics inherent in objects of copyright.

It follows from the above that if the script has a "creative" title or characters, they may also be granted legal protection under Russian law, where their illegal reproduction will be qualified as copyright infringement.

So, for example, according to paragraph 82 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated April 23, 2019 No. 10 “On the application of part four of the Civil Code of the Russian Federation” (hereinafter - Decree No. 10), "<...> a character should be understood as a set of descriptions and (or) images of one or another character in the work in the form (forms) inherent in the work. Not every character in a work is a character in the sense of paragraph 7 of Article 1259 of the Civil Code of the Russian Federation. The plaintiff applying to the court for the protection of the rights specifically to the character as part of the work must substantiate that such a character exists as an independent result of intellectual activity. This takes into account whether a particular character in the work has sufficient individualizing characteristics: in particular, whether the appearance of the character in the work, distinctive features (for example, movements, voice, facial expressions, speech features) or other features by virtue of which the acting person the face of the work is recognizable even when it is used separately from the work as a whole."

Unfortunately, there is no similar interpretation for such part of the script as “name” in the clarifications of the highest judicial body.

And if the expression of the script, including its parts, in an objective form for the author is not difficult, then the rationale for the existence of a creative nature often causes a number of difficulties for the author.

So, for example, back in 2001, refusing to satisfy the claims, the basis for which, according to the plaintiff, was the illegal use of the title of the script for the television series "Petersburg Secrets" when the defendant created the book of the same name, the court of general jurisdiction pointed to the lack of creativity and originality in a controversial name and the impossibility of applying copyright rules to it (decision of the Zamoskvoretsky Intermunicipal (District) People's Court of the Central Administrative District of Moscow dated August 28, 2001 in case No. 2-1345/1).

Further, it should be emphasized that the presumption of authorship provided for by Article 1257 of the Civil Code of the Russian Federation is not identical with the presumption of possession of exclusive copyrights, since these rights may later be transferred to another person who is not the author, on the grounds established by law (Resolution of the Court on Intellectual Property Rights dated 26.11 .2019 in case No. А40-230948/2016).

At the beginning of this article, it was already mentioned that the protected results of intellectual activity, including the script, can form independent, frame objects, named in Article 1240 of the Civil Code of the Russian Federation as complex objects.

Unfortunately, the current civil legislation does not contain a legal definition of a "complex object". At the same time, we can draw a certain parallel with an object known to the legislation - a “complex thing”, presenting a complex object as protected results of intellectual activity, connected in a way that implies their use for a general purpose. At the same time, judicial practice indicates the possession of protected results of intellectual activity as part of a complex object as well as some signs of unity, which may include: a single creative idea; actors (characters); the overall storyline created by the script (Resolution of the Court of Intellectual Property Rights dated April 16, 2021 in case No. A21-14377/2019, dated December 11, 2020 in case No. А40-262160/2019, dated November 15, 2016 No. А68-7453/2015, etc.).

A special place in the creation of a complex object is occupied by the person who organized the creation of a complex object. In accordance with paragraph 44 of Decree No. 10, “The person who organized the creation of a complex object (Article 1240 of the Civil Code of the Russian Federation) means the person responsible for organizing the process of creating such an object, in particular the person who took the initiative and responsibility for the creation of the corresponding object (for example, a producer)."

Depending on the complex object, in addition to the producer, judicial practice refers to the person who organized it, for example, a theater, film studio, director or other person who took the initiative and responsibility for the creation of the corresponding object (Appeal ruling of the St. Petersburg City Court dated 02/21/2019 in case No. 2-4223/2018).

In order for the person who organized the creation of a complex object to have the right to use the scenario, he, by virtue of Part 1 of Article 1240 of the Civil Code of the Russian Federation, must conclude an agreement on the alienation of the exclusive right or a license agreement with the owner of the relevant exclusive rights. At the same time, when concluding a license agreement, its terms should provide for the possibility of using the scenario as part of a complex object for the entire period and in relation to the entire territory of the relevant exclusive right, while the terms of the license agreement limiting such use are recognized as invalid (paragraph 2 of Article 1240 of the Civil Code of the Russian Federation).

Since it is the person who organized the creation of a complex object that is responsible for organizing the process and creating such an object, he is also responsible for the unlawful use of the protected results of intellectual activity in its composition, including, in relation to this article, a scripted work.

So, for example, the court refused to satisfy the claims of the author of the play "The Hidden Tsar", brought against the owner of the media - All-Russian State Television and Radio Broadcasting Company (VGTRK), where the television series "Split" was placed, in which, according to the plaintiff, copyrighted materials belonging to him were illegally used storylines, characters' replicas, dialogues, as well as some scenes, since, according to the provisions of the contract and article 1240 of the Civil Code of the Russian Federation, "VGTRK" is not the person who organized the creation of a complex object and did not decide on the inclusion of certain works in the film and did not commit appropriate actions to include various scenes in the composition of the film. In addition, the court noted that the fragments indicated by the plaintiff do not belong to copyright objects and are not subject to protection, t.to. the disputed fragments contain an indication of characters of a historical nature and are not the result of the plaintiff's intellectual activity, and storylines, replicas and dialogues are not in themselves objects of copyright in accordance with Article 1259 of the Civil Code of the Russian Federation without material embodiment. The disputable objects of this case are the work of the plaintiff (a play) and a complex audiovisual work, where direct borrowings and quotations from the play "The Hidden Tsar" in the film "Split" were not used (Appeal ruling of the Moscow City Court dated 18.05.2016 in case No. 33-17459/2016).

Summing up, we believe that being a rather trivial object of copyright, nevertheless, a scripted work contains “gray areas” that require additional research, which is hampered by a small number of court cases in this category of disputes. The emergence of new judicial practice will contribute to the disclosure of the legal nature of the object.