AUSTRIA
This subject has not been raised in most of the years since the Austria Copyright Act came
into force in 1936. Why should it have?
Austrian Copyright Law provides the transfer of all utilisation rights for commercially
produced films to the producer (cessio legis). The authors of a film, among them directors and cinematographers, have to cede their copyright to the producer. Their only right remaining is to be listed on the credits of the film.
This situation changed when around the middle of the eighties it became known in Austria
that the Verwertungsgesellschaft Bild Kunst in Bonn (Germany) was paying remuneration to cinematographers out of the money which Bild Kunst received from the blank tape levy
(video) and also cable. Austrian cinematographers who received this information joined Bild Kunst and received payments for several years.
At the beginning of the nineties a new collecting society for audio-visual authors was
established, VDFS Verwertungsgesellschaft der Filmschaffenden. At the foundation and
within the governing bodies of this society cinematographers were involved from the very
beginning. For the first years of its existence VDFS was restricted to the collection of foreign royalties and the distribution of these amounts to their members because of the existence of cessio legis in Austria. In this area of foreign collection VDFS depended on the internal legislation and rules of the societies in individual countries. Some recognised the
cinematographer as co-authors of the film (Germany, Hungary, Finland), some did not
(Switzerland – until 1996, France and Netherlands).
While collecting foreign royalties VDFS worked to establish participation of audio-visual
authors in the financial results of their works primarily from the cable and blank tape income. In the last years income from blank tape levy and cable was roughly 15 million euros each per year for all right holders. This income from copyright royalties first included audio-visual authors, among them cinematographers, through the revision of the Austrian Copyright Act effective April 1, 1996.
In principle, there is a division between film producers and audio-visual authors of 50:50
which at present is reduced in favour of producers by transitory provisions.
In this situation (income could be distributed at last!) the question if the cinematographer is to be considered an audio-visual author has increased in importance. The Austrian Copyright Act is clear in its answer to the question “Who is the author of the work?”. The reply is: “Author of the work is the person who created it“ (Art 10 para 1 of the Austrian Copyright Act). If there are more than one author there is common authorship in a work.
The relevant question is of who created a film. The explanatory remarks of the Austrian
Copyright Act read as follows: “As far as the authors are concerned it has to be kept in mind that films are mostly collective creations to which various individual persons contributed. It would be an obvious exaggeration of protection if the law would give each contributor even if his creative input is minimal the same rights to be considered as the author of the film. This consideration justifies the rule to give only these persons the right to be considered as authors of the film who imprinted the mark of their personality to the making of the film”.
Do cinematographers usually “imprint their mark of personality” to the film?
The Court of Appeals in Vienna was not so sure about this. In a decision of 1990 it considered that the director was the only person to be called author of the film. This decision was criticised by one of Austria’s leading copyright experts Michel Walter as follows:
“It cannot be ruled out that even for films such as classical feature films to be performed in
cinemas which really have the mark of the personality of the director imprinted upon them
other persons have contributed substantially to the making of the film. This will normally be the case for the cinematographer and the editor of a film”.
The legal situation in Germany is much clearer. A commentary to the Germany Copyright Act of 1994 reads as follows:
“For the cinematographer the creative quality of his contribution for the direct sequence of
pictures, light, colour and realisation cannot be doubted”.
A special case is the participation of cinematographers for non classical feature films. In cases were family events such as weddings are recorded on video it is the cinematographer who holds the rights in the recording. However, if he is employed by a commercial provider of such services (video producer) the rights lie with the producer.
To summarise: typically, cinematographers in Austria are co-authors of the film and enjoy
the resulting rights (primarily remuneration rights in cable and blank tape levy). For the
collection of these rights their society VDFS has been established. VDFS never hesitated in
granting participation to cinematographers.
The current percentages for right holders in films is as follows:
Director 54,00%
Cinematographer 15,00%
Editor 14,00%
Costume Design 8,50%
Architecture 8,50%
According to these percentages VDFS pays royalties to the various groups of right holders out of its cable and blank tape money. VDFS´s income in 2008 has been roughly 6 million euros.
