The Spotlight: Can DoPs Claim Authorship in Today’s Media Boom?

Anoop* discusses IPR and directors of photography’s (DoP’s) contributions in Different Truths, urging a rewrite of the copyright script to acknowledge and reward visual storytellers in films[1].

The media industry has grown quickly in recent years as a result of the global distribution of audio-visual products via cable, satellite, and the Internet. New technologies benefit producers, distributors, broadcasters, and marketers. However, those who make films often don’t get a fair share of the wealth their works generate. Directors of photography (DoP) are often not rewarded. Claims DoPs’ authorship is disputed due to unclear laws, which typically recognise only the writer and director as authors.

The pursuit of creative work, which requires intellectual property rights or authorship, must be studied in its right perspective. IPR broadly signifies an individual or a group as a composite unit working in a direction for a fruitful result. In this case, Jost Vocano, a senior director of photography and member of both the German Society of Cinematographers and the American Society of Cinematographers, argued for the multiple author domain, as movies/films are the creation of a team.

The copyright systems of most European countries are based on the principle of creativity, which states that the creator of a work is also its author. However, the Anglo-Saxon copyright system takes a fundamentally different position, recognising exclusively the producer of a work as that work’s author. This makes achieving legal recognition in these countries very difficult.

Authorship rights are awarded to certain groups or categories of professionals by law in just a few European countries. For example, in Poland or Bulgaria, the law recognises the authorship rights of the DoP. In other countries, like Italy or Spain. Traditionally, only screenwriters and directors are recognised as the authors of films. In many European

countries, including Germany, copyright laws are considered case by case. There’s no general recognition of authorship for a specific profession, even for directors per se. This makes achieving legal recognition in these countries very difficult.

Most European countries haven’t included it in copyright laws yet. However, there’s a slow shift from individual cases to a more general category approach. This could offer an opportunity for general legal recognition of the DoP as an author.

The recognition of the authorial status of a Digital Photographer applies only to films or other audiovisual products defined as works of art. Recognition doesn’t extend to camerapersons in news and non-artistic filming. Directors of Photography (DoPs) have faced strong opposition from various industry players in their prolonged effort to be acknowledged as authors.

In the film world, there’s a debate about authorship. Who gets credit for the way the film looks? Some say the director is the boss and the DoP just does what they’re told.

They claim that the director would be entirely responsible for giving the film its artistic form. To be recognised as a co-author, a Director of Photography (DoP) must make a standout creative contribution, almost like a co-director. This recognition is particularly tied to artistically distinguished films. In such cases, exceptions to the conventional rule may be warranted. However, this view is particularly applied to B-class entertainment or exploitation films.

German directors have supported the universal recognition of DoPs as co-authors by the German royalty collection organisation (Verwertungsgesellschaft Bild-kunst) for copyright payments since 1985. In 1996, the German Directors Guild reiterated its belief in the creative function performed by DoP and their claim of general co-authorship.

Historical development has played a significant role in the dispute over authorship rights. Until the mid-1970s, films were first screened in cinemas and then shown on TV, and the creators were paid accordingly. Today, films both old and new are exploited and distributed on a global scale, leading to increased profits for producers, distributors, broadcasters, and marketers. Producers work hard to prevent royalty payments to DoPs by challenging their general right to be acknowledged as authors. They structure contracts to explicitly exclude any potential entitlement to royalties.

In the past, enquiries from DoPs regarding claims to authorship were few and far between due to financial consequences and lack of backing from powerful organisations. However, producers and marketing companies prioritise the economics of filmmaking. They are well-versed in legal matters and backed by influential organisations. Older reports depict DoPs as instruction followers, but recent expert opinions strongly acknowledge their right to claim co-authorship.

Blurring creative contributions in a film is a common issue. It demands a consistent and uniform character to evoke the intended emotional response. It is difficult to identify an individual creative contribution or distinguish it from other contributions once the film has been made. The legal issue can only be resolved based on typical criteria that consider the case for evaluating tasks performed by professionals.

An individual creative contribution exists on its own merits and is not dependent upon a certain level of creativity. However, given the collaborative nature of filmmaking, it’s important to question if someone’s contribution qualifies them as the author or co-author of the entire work. This consideration extends to their specific contribution or performance, akin to actors. Photography and lighting designs serve as the visual foundation for every film. Cinematography is the primary and major element contributing to the creative character of the finished work.

Artistic originality must always be viewed within its social framework, against the backdrop of contemporary trends and fashions, styles, genres, schools, masters, or followers. For determining the authorship of a creative work, it is immaterial whether it remains within these frameworks or, quite deliberately, seeks to transgress or transcend them. One work may be more conventional, and another be more avant-garde, but in no case would the very fact of authorship be called into question.

The influence of the director and subordination to a higher authority is often argued, but this is inaccurate. While directors do have the right to overrule conflict situations, this hardly plays a role in the actual practice of filmmaking; teamwork and cooperation are the daily routine. The director’s tasks include checking, approving, and deciding between various creative ideas and proposals, and in the final analysis, determining what is included in the film and what is not.

A further form of “higher authority” is the screenplay itself, which is something all contributors, including the director, must conform to. The producer represents a further authority with the power to issue instructions, such as the financial consequences of certain creative decisions or the impact on the audience. However, this authority must also be accepted by the directors themselves. In summary, a film is subject to “higher authorities” in all phases of its production, which does not influence the question of authorship.

The visual language of directors has evolved, with famous directors often working with various cinematographers to develop their unique formal characters. Ingmar Bergmann’s films, for example, gained their unique visual character after collaborating with DoP Sven Nykvist. Other examples of long-term partnerships include DoP Nestor Almendros and Director Eric Rohmer, DoP Robby Muller with Wim Wenders and Jim Jarmusch, DOP Robert Richardson with Oliver Stone, DoP Vittorio Storaro with Bernardo Bertolucci and Francis Ford Coppola, and DoP Jost Vacano with Paul Verhoeven.

In India, DoP Subrato Mitra with Director Satyajit Ray, DoP KK Mahajan with Mani Kaul and Mrinal Sen, and DoP Ashok Mehta with Shyam Benegal and Aparna Sen are examples of directors who have had their work shaped by their DoPs. In TV productions, variations in visual and cinematographic style can be observed for the same director during a TV series when they had to work with different DoPs on various episodes. However, serial work is the best example of a genre where a director would seek a uniform visual language throughout episodes and would try to give “precise visual instructions” to his DoPs. This demonstrates that the DoP plays a greater role in determining visual language, rather than the director.

Film directors like Andrej Tarkovsky emphasise the importance of creative collegiality between DoPs and production designers in their films. The German Association of TV and Film Directors (German Directors Guild) supports this view, while Dr. Norbert Kuckelmann supports the recognition of authorship for DoPs.

In Germany, since 1982, the German royalty collection organisation (Verwertungsgesellschaft Bild-Kunst) has recognised DoPs as authors, entitled to certain royalties, which are only applicable to authors. However, this practice was not in line with the current law. Effective July 2002, the German Government issued a new law that names certain professions, expressly directors, DoPs, and editors, as co-authors of their films. This development is a notable success for the German Cinematographers Guild BVK and is likely to have a global effect.

In most European countries, the laws of authorship and copyright are based on individual cases and not on the recognition of rights for professional groups in general. However, these countries now face the question of distributing revenue from license fees to the authors of work via royalty collection organisations. Since consideration of each case is not feasible, these countries must also introduce general guidelines for a particular group of professionals, even when this is not provided for in the copyright laws of the affected countries. Consequently, the possibility arises that DoPs achieve de facto recognition in these countries as if it were through the back door.

DoPs are recognised as authors in several European countries: Germany, Bulgaria, Poland, Switzerland, Austria, Hungary, Denmark, Sweden, Finland, Norway, and the Czech Republic. In other words, there is increasing Europe-wide recognition of the authorship rights of the DoP not only based on their work but also with regards to co-authorship of the film. The exceptions in Europe are France, Italy, Spain, The Netherlands, and Belgium where traditionally only screenwriters and directors are legally recognised as the authors of films, and the Anglo-Saxon countries where the so-called “copyright system” prevails.

The USA resembles Germany in that the authors, although they have no authorial status as such, are entitled to royalties (residuals), but this applies only to screenwriters and directors based on guild agreements. These also receive royalties because of the use of their work in Germany, for example when it is broadcast on German TV. Although according to German law, these US-DoPs are also entitled to a percentage of this money, the American producers, screenwriters, and directors share this (approx. $5 million each year) among themselves (75 per cent going to producers, 12.5 per cent each to screenwriters and directors).

The issue of recognition of authorship in the USA has already gained momentum, especially as the discussion on the moral rights of authorship has been raised. The situation in the USA regarding contracts requires the DoP to cede all and any conceivable rights to the producers. The German government has issued a new authorship law designed to take account of this power imbalance and to prescribe specific minimum conditions for the acquisition and use of rights. This new legislation is based on the very new principle that artists generally will have a legal claim to adequate compensation for the use of their works.

For the countries of Eastern Europe, they must develop compatible systems of copyright law. The prospect of a long-term convergence on the smallest common denominator, like the French model, is conceivable. For this reason, DoPs and their organisations must redouble their efforts to achieve recognition in their royalty collection organisations, their national law, and in European organisations as well.

IMAGO, the European Federation of National Cinematographers Associations, could provide support.

The Vacano case study is a stark reminder of the IPR/authorship crisis we face. This crucial seminar tackles the issue head-on, a beacon of hope for all vulnerable creators. Unless stringent legal frameworks are enacted, countless individuals remain exposed. We, gathered here, vow to fight relentlessly until the government upholds our rights. We demand legal recognition from the IPR holders/authors, granting them their rightful share of generated income, not just from the primary exhibition. This injustice must end, codified into law.

*Affiliation: Anoop Chatterjee is the Life Member of the Indian Documentary Producer’s Association and Ex-Gen Secretary of the Western India Cinematographers’ Association.

Picture design by Anumita Roy

1 Here’s an abridged and edited version of the paper presented at the National Seminar on “IPR – IT & Entertainment Industry,” IPR Seminar 2005, at the Indian Institute of Information Technology (IIIT), Prayagraj. It was coordinated by the then Asst. Prof. Anurika Vaish. ~ Editor-in-Chief.