The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Sunday, 12 November 2017

Can a film be released without mention of the name of its director?

This question relates to moral rights. In particular the right at stake is attribution, ie the right - to use the language of Article 6-bis of the Berne Convention - of an author to claim authorship of his/her work.

The protection of moral rights has been traditionally regarded as particularly strong in those jurisdictions that follow the traditional French-style droit d'auteur approach to copyright protection, including Italy. This is indeed the country where this question may be raised.

The latest news is in fact that the latest film by well-known film director and writer Fausto Brizzi, due for release on 15 December and entitled Poveri ma ricchissimi, may appear in cinemas without indication of his name as the director of the film. 

In the wake of the Harvey Weinstein, Kevin Spacey, etc etc scandals, it is rumoured (so far no confirmation has been provided though) that Brizzi might have sexually assaulted a number of Italian actresses. According to Corriere della Sera[the translation from Italian is mine]

"[Brizzi's] film is produced by Wildside [a production company in which Brizzi himself used to hold a minority quota until recently] and Warner Bros, which is also the film distributor. And Warner is currently assessing the option to release Poveri ma ricchissimi without the indication of Brizzi's name, as if it was a film without a director. The US entertainment colossus would thus follow a policy that in the US has been in place since the Weinstein scandal, as it also happened to Kevin Spacey who has been erased from the new Ridley Scott film."

Aside from the consideration whether a move of this kind would be appropriate in the case of a person, Brizzi, who so far has not been explicitly identified (nor found to have actually behaved as claimed) as "the well-known, 40-year-old film-maker" that a number of Italian actresses referred to when revealing their own experiences of sexual harassment to Italian TV programme Le Iene, the question that arises is whether Italian copyright law would allow an initiative like the one considered by Warner.

Directors as authors, and their moral rights

In line with what is required under EU law [on the issue of directors of cinematographic works as authors, see the important decision of the Court of Justice of the European Union in Luksan, C-277/10], the Italian Copyright Act (Legge 633/1941) recognises directors among the authors of a cinematographic works. Article 44 states in fact that the principal director of the work shall be considered to be the author of a cinematographic work, together with the authors of the film plot, screenplay, and soundtrack.

Fausto Brizzi
What about the moral rights of directors as authors then? 

Article 20(1) (and with a similar tone, with specific regard to cinematographic works, Article 48) provides that independently from the exclusive economic rights, and even after their transfer, the author shall have the right to be recognised as the author of his/her work. However, Article 22 states that, while moral rights are non-assignable, the author who has known and accepted the modifications to his/her work shall not be entitled to prevent its execution and seek its destruction. 

The scope of attribution

In all this, it would appear that Warner might find it potentially difficult to distribute Brizzi's film without the mention of his name. 

Brizzi's consent would be necessary, but might not be sufficient. In fact, at least two further points would require consideration. 

The first is whether the omission of the authorship credit may be regarded as some sort of 'modification' of the work. If the answer was yes, then the author could consent to it and be prevented from opposing the subsequent release of the film. However, the answer to this question might be potentially problematic because 'modification' appears to relate more to another key moral right, this being the right of integrity [see again the language of the Berne Convention, Article 6-bis], rather than attribution. 

The second point (directly related to the answer to the point above) is whether and to what extent the moral right of attribution may be waived. This issue is still debated, both in Italian scholarship and case law. The conclusion that one is entitled to waive his/her moral right of attribution would be hardly acceptable to those who hold the view that moral rights are not just non-assignable, but also unwaivable. In this respect, one might recall that it is not entirely clear under Italian law whether an agreement by means of which one waives his/her right of attribution, eg in the context of ghostwriting, is valid and binding or, instead, should be regarded as void because contrary to the imperative norms on moral rights protection.

In all this, Brizzi's case is fairly unprecedented, and it will be interesting to see whether and to what extent Warner goes ahead [the initiative seems already to have been taken: see here] with the initiative of 'erasing' the director's authorship credit from Poveri ma ricchissimi. 

Updated on 13 November 2017

Update on 14 November 2017: Warner Bros Italia has confirmed that Poveri ma ricchissimi will be promoted and distributed without any reference to Fausto Brizzi: see here.

4 comments:

Lorenzo Albertini said...

"In all this, it would appear that Warner might find it potentially difficult to distribute Brizzi's film without the mention of his name." . I agree: looks it's "very difficult", in light of art. 48 of the Italian Copuright Act

Eleonora Rosati said...

Thanks Lorenzo. Yet, it seems it's happening already: see http://www.huffingtonpost.it/2017/11/13/la-warner-bros-cancella-il-nome-di-fausto-brizzi-dal-suo-ultimo-film_a_23275444/

Lorenzo Albertini said...

Yes I know, but according to italian law it seems a quite uncomfortable road ... (usually you cannot react to a breach of contract with another breach of contract: unless the law admits it)

Lorenzo Albertini said...

or, better: "you cannot react to a breach of contract with another breach of contract and/or with a violation of a -expressely declared- unavailable right". Unless -perhaps- if complying with this right might cause a significant damage: in this case the judge will balance the two opposite damages. Interesting case, thanks Eleonora! Let us know possible developments!

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':