Producers as Authors of Motion Pictures – In Practice

The identity of the "author" of a motion picture under Canadian copyright law is an unsettled point – so unsettled, in fact, that I managed to wrangle a 30-page journal article out of the topic (“Put on Shows That Will Enthrall Them: Producers as Authors of Motion Pictures” (2011) 27 Canadian Intellectual Property Review 31 – copies available on request!).  To spare you the suspense, I concluded that producers should be presumptively considered joint authors of motion pictures along with the director.  Coming to that conclusion requires some finagling of existing Canadian copyright law – unlike in other jurisdictions such as the US and the UK, where the question of authorship is largely determined by statute.

Why does this matter? Well, as I mentioned in the article, identifying the author of a motion picture is critical for determining things like when a motion picture falls into the public domain, who has what moral rights in the work and who exercises the exclusive rights granted to copyright owners (who may or may not be the same person(s) as the author(s)).  A recent case in England and Wales offers an example of the types of disputes which can arise and how they are resolved under a more stable analytical framework than that which we enjoy in Canada.  The case is Slater v Wimmer [2012] EWPCC 7, ably summarized by Enrico Bonadio and Lorraine Lowell Neale in the Journal of Intellectual Property Law & Practice (Joint Ownership of Films in the Absence of Express Terms (Slater v Wimmer)).

Wimmer "commissioned" Slater to film Wimmer’s skydiving exploits over Mount Everst – there was no written agreement between the parties, but Wimmer provided what might be traditionally viewed as "producer" services and Slater provided "directing" services.  When footage from the resulting motion picture was broadcast on TV without Slater’s permission, he sued for copyright infringement.

The English Copyright Designs and Patents Act 1998 stipulates that the producer and principal director of a motion picture are to be considered the joint authors of a film (and, consequently, the initial joint owners).  The court assessed the various roles played by Slater and Wimmer and found that Wimmer fulfilled the role of "producer": he undertook the necessary arrangements for making the film, including the incurring of travelling expenses, engaging personnel and providing equipment.  Contrariwise, Slater was the director: he controlled camera settings and was responsible for the visual elements captured in the film.

Because Wimmer and Slater were joint authors, and because there was no written agreement between them regarding ownership of the intellectual property rights in the film, they were also joint owners of the film.  As a result of that conclusion, under English copyright law (in particular, Section 173(2) of the CDPA), neither was able to exploit the rights in the film without the prior consent of the other – thus, Wimmer’s use of the footage in a documentary without Slater’s permission infringed Slater’s copyright – and Slater’s posting of footage on YouTube without Wimmer’s permission infringed Wimmer’s copyright.

Implications of the case? First, a timely reminder that all arrangements between parties should be in writing: determinations of ownership and how rights would be exploited could easily have been dealt with in a contract.  Second, a useful indication regarding how many issues which are dealt with by legislation in England and Wales remain open points under Canadian copyright law: not only is the identity of the author of a motion picture unsettled law, but so too is the question of who needs to consent to an exploitation if there are joint owners.

Media and Entertainment Group

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The media and entertainment industries are constantly evolving. We know these diverse industries encompass many unique business areas. With the continuing change in the way that content is delivered and viewed, media and entertainment companies require leading-edge advice in many areas of the law—often in multiple jurisdictions.

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