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by Derek Strahan


Written by way of a report on a Arts Law Seminar "Auteur or Author" held at The Gunnery, 43 Cowper Wharf Road, Woolloomooloo, Sydney, Australia, 9 March 1994 6 - ppm

The Seminar was held to discuss the issue of "Moral Rights in Film" We were provided with a
Definition as a basis for discussion.


What are moral fights? In 1928 Australia became a signatory to the Berne Convention which guaranteed that " ... independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation." The Australian Copyright Council's view is that " ... moral rights are personal rights, as distinct from economic rights, that belong to creators in relation to their work. Moral rights result from the recognition that a work is an extension of the creator's personality and, as such, both the work and the creator's relationship to the work must be acknowledged and respected."


Considering the title of the seminar it was extraordinary that there was no scriptwriter on the panel nor any representative of a Writer's organisation such as the Australian Writers Guild, who are known to be vehemently opposed to the present government's proposal that "only the director and not other creators in film shall be granted moral rights and only if that director is the principal creative contributor and it is reasonable in all the circumstances." Neither was there any representative of composers on the panel. The audience was addressed by 6 speakers each of whom was allotted from 10 to 20 minutes.

Clearly, if each took up the maximum time allowed (which happened) there would be no time left for questions (which happened - only 20 minutes was available for this, and the allowance was for questions only, not statements). As advertised, the Seminar was to have been addressed by only 5 speakers, so it seems fair to assume that the 6th speaker, representing the interests of commercial TV was a late ring-in. The following account represents my understanding of the viewpoints of the various interests represented on the panel.

Commercial TV, it seems, will insist that moral rights must be, in effect, waived in film and TV in Australia, otherwise there wilt be no further investment by commercial TV in local production, since investors require security. The Film Finance Corporation, which dispenses public funds for film production, is, I gather, opposed to the granting of moral rights because of the difficulties this would create, contractually, in getting films off the ground, and because of the possibility of litigation occurring over the enforcement of moral rights. Legal advice was offered explaining that if the UK precedent were adopted in Australia, moral rights would create no problems. That precedent is to require, in all contracts, total waiver of moral rights. Opinion emanating from the Australian Screen Directors Association understandably vaunted the role of the director in film making and there was a somewhat gratuitous dismissal of claims by such as writers to having any moral rights in their own creation as "mere ego". From the Media Entertainment Arts Alliance we were assured that the vital, creative contribution of actors gives them claim to moral rights as creators of a film work at least as valid as that of the writer. The position of the Federal Government, as I understand it, is that no final decision has been made in respect of moral rights in film, although the preference of government is to accord these to the director. It was observed that much of the argument heard during the evening involved the setting up of straw men and knocking them down, which was fair comment since the advertised topic of the seminar, "Auteur or Author", was hardly touched upon. How could it be, when no contribution was invited from any authors?

In the opinion of this writer/composer it is urgent that a definition of film as a form of MUSIC THEATRE be widely publicised until it achieves public acceptance and is reflected in legal opinion and in the attitudes and procedures of arts bureaucracies. In accordance with that definition, and as historically understood, music theatre, or a musical play, is theatre in which words and music play an equally important part in the unfolding of the drama, in the telling of the story. The fact that, in film, words are generally spoken rather than sung, does not in any way diminish the primary role of music as a narrative device of equal importance to words. The role of the director and other contributory talents have to do with interpretation and presentation of the original concept. Merely because, through photography, performances can be frozen and, thereby, turned into a marketable product, does not mean that the current version of a film script is the one and only performance that could ever be made of it; and, indeed, the history of cinema abounds in remakes, and alternative versions.

If there is to be any chance of affecting the outcome of the impending legislation it may lie in widening discussion of the issues beyond legalities to encompass considerations of motive and intent on the part of producers and directors of film, and thereby engage in some debate about pertinent moral issues which underly the issue of moral rights. It is clear that the very issue of morality is regarded as threatening to the status quo by the hierarchy of film production and distribution! And it is therefore not surprising that we are witnessing a very aggressive attempt to hijack moral rights in creative work before there can be any real debate about the morality involved in moral rights!

Unfortunately, as matters stand it will be much easier for the government to give moral rights to the director of a film because, under the usual arrangements a writer has to cede copyright in the script to the production company in order for the film to be made. Therefore the writer no longer owns the script and, legally, has no basis for claiming ownership of moral rights. Music for film is always an afterthought and composers still, often, retain artistic copyright, whereas the production company owns mechanical copyright in the recording of the sound track. The issue of moral rights is therefore quite threatening to composers.

Creative talent has always been regarded by producers as an unfortunately necessary evil and the requirement to cede copyright may ,actually, be a device to rid the producer of a nuisance, namely the writer, before commencing production. Otherwise, why not welcome the writer onto the production team as consultant and co-beneficiary in the film's profits? There are two reasons why not:

1) The producer; for obvious reasons, would prefer not to share the producer's percentage. The director is already dealt a share. Why include the writer? All that he/she should be allowed is a one-off payment for writing the script. Forget rights of any kind, or forget the job. We all know how hard it is for a writer, having ceded copyright, to then negotiate a percentage of beneficial ownership of the film, and, having negotiated, actually get paid what is due! If writers are treated like this, what hope does a composer have of striking a better deal?!

2) Neither the producer nor the director wish to share power or authority on the film set, and the last person they want hovering around during production is an importunate writer objecting to changes. This reason has to do with power psychosis and it is probably the principal reason why producers and directors very strongly object to the possibility of a writer being given moral rights in a film. Again, the precedent set by treatment of the writer applies equally to the composer, particularly as the composer is usually employed as an afterthought after the film is completed!

A fact of life about the nature of film production, as it has evolved, is that, in structure a film production is essentially fascist, or, if you like, feudal:- fascism being a survival of feudalism in this century - that is, a politico-economic structure dominated by one individual who has absolute authority and whose word is law, and whose regime is enforced by a loyal private army. If anyone doubts that this is so, let me regale you with a true story, which perfectly illustrates that thesis:

As a composer I am, from time to time, given employment as an actor, and sometimes as a surrogate actor. This was the case when, in 1981, I was engaged as a stand-in for the late James Mason during shooting of a film set in the Blue Mountains ( a distant suburb of Sydney, well known for its exquisite bush and mountain scenery.) The director had a tenuous command of logistics, such that extras and volunteer firemen narrowly escaped being run over by rampaging fire trucks during photography of scenes depicting the result of arson. (The same director improved on his track record by, in his next film, having a camera assistant actually run over and killed by an out of control car during filming of a race sequence).

The pleasure of watching Mason at work was offset by the tedium of many hours of hanging around. Tiring of sitting on upturned logs or upturned cartons I purchased a fold-up chair at Woolworths for $13, and used this to sit on. Alas, I had forgotten that, on a film set, a fold-up chair is a potent symbol of royalty, being known in this microcosmic kingdom, as a "director's chair." I had unwittingly committed treason. Word of my sin got back to the monarch, and very soon I received a visit from the first assistant director who said: "We're a bit short of chairs on this production. Can we buy yours from you?" It was, of course, a de facto confiscation. I, a mere serf, had arrogated to myself the right to sit on the sacred symbol of royalty, the throne!

Where there is a feudal lord, you would expect to find serfs. The true serfs in the film world are not the film crew, who are artisans being paid to do a job, and who don't regard the film as being in any way their property. The true serfs are the writer and composer who, under common law, begin by owning their own work, a product now defined in law as intellectual property.

The word serf comes from the Latin word, servum, meaning a slave. Serfdom, in feudal times, was a condition of partial slavery. The serf was not owned by his overlord, but the land which he worked was. It was the property of his overlord. The serf had to give all surplus produce to his lord and in addition had to pay a tax called CAPITAGIUM, a head payment, and also a TALLAGE, or rent.

The serf could not leave the lord's domain or marry outside of it. And he also had to surrender part of his inheritance to the lord at his death. This was called MAINMORTE.

It seems to me there are some very striking parallels between the situation of a serf in the twelve and thirteen centuries and situation of writers and composers in the final years of the twentieth century. Firstly, as regards film, they do not own, or very soon cease to own the property on which they labour, just as a peasant, in feudal times did not own the property on which he worked. Where the writer or composer is deprived of copyright earnings thereby, he or she is effectively donating these earnings to the producer, which , being a transfer of income, could be regarded as a form of tax. As regards restriction of movement, a producer defines a writer's or composer's place as being, properly, at the appropriate keyboard, certainly not on the set of the film being made of his or her work! The presence of the serf on the property of the lord is strictly by invitation!

An appropriation of the lord's property by the serf is a criminal offence, and this includes the product of the serf's own work once the lord has assumed ownership of it.

As regards MAINMORTE, the surrender of part of one's inheritance, this is very much the situation of all conceptual artists in respect of copyright law pertaining to intellectual property. Land title can be passed on forever, from generation to generation, but title to intellectual property cannot. Such title expires 50 years after the death of the owner. (Efforts to extend this to 75 years are sponsored by media corporations dismayed at loss of title to their own property after a mere 50 years of beneficial exploitation of product!)

It seems to me that conceptual artists are the very last artisans to be liberated from serfdom, and the process of liberation is, as yet, incomplete. Society, as a whole, and film producers and film directors in particular still regard writers and composers as servants.

Mozart was privileged to be allowed entry to the aristocrat's palace, but was expected to enter and leave by the servants' entrance. On leaving he might or might not be handed a bag containing some coins, but, of course, the amount of payment was not known and was never questioned. And it was bad form to count it in the presence of the nobleman or his servant.

The method of payment of servant/artists is better defined in the twentieth century, but the underlying attitude of master/servant still lingers in the attitude of film producers towards those they employ in the making of film ( and indeed in live music theatre! ). It is, I submit, this master/servant mentality which motivates producers and directors in their determination to arrogate to themselves moral rights in a film creation. I suggest that they have the same moral right to such intellectual property that a feudal lord had to the landed property on which a peasant was obliged to work. The fact that writers and composers have a need to work is no argument in favour of them losing rights in their own property. Like peasants, writers and composers need work to survive. Like peasants, writers and composers also deserve liberation from serfdom.

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