LEGAL ROUND TABLE - Moral rights in all their forms

At this first round table of the 12th Marché International du Film Classique, SACD set the ball rolling by focusing on moral rights. Alongside Isabelle Meunier, Head of Audiovisual Production Contract Negotiation Department / Legal Affairs and Audiovisual Contract Department at the SACD, were Pascal Kamina, University Professor, Master’s degree in film, audiovisual and multimedia law, Faculty of Law, Jean Moulin Lyon 3 University, Nicolas Pagnol, Chairman of Marcel Pagnol Endowment Fund and Ellen Schafer, Catalogues Exploitation Director at Argos Films/Cité Films.

Moral rights are an often misunderstood but omnipresent concept in the creative world. Often mentioned in contracts, particularly since the introduction of a standard clause in 2021 between authors and producers, it defines a set of rights inherent to the author, giving him or her the power to control the exploitation of his or her work.

According to Pascal Kamina, moral rights comprise four essential prerogatives:

The right of disclosure: the right to decide when and how one's work will be disclosed for the first time (or not disclosed at all)
The right to authorship
The right to respect for the work: respect for integrity (modifications, alterations, etc.), but also for the spirit of the work (questionable associations, context of exploitation).
The right of withdrawal or repentance: the right to go back on a transfer contract and withdraw the work from the market. Very rarely exercised, as prior compensation is required.

Under the common system, moral rights are :

Attached to the author (within the meaning of French law, even for foreign films) and their heirs (normal order of succession, except disclosure rights -> special rules for devolution/exercise)
Perpetual (i.e. on works in the public domain)
Non-transferable, the author cannot waive them
Exercise is in principle ‘discretionary’ (but minimum control over the right to respect, abuse, etc.)
No exceptions, some limitations on their exercise (e.g. audiovisual domain: on the finished work only)

Internationally, there is very little harmonisation of this moral right, even at European level. It is less protected in some legislation, with a limited duration of economic rights and restrictions on its application (an infringement must be significant for it to be applied). It should be noted that under American copyright law, there is no moral right at all. Pascal Kamina points out that, even though moral rights are important and strong in France, a large body of case law and a more restrictive trend in their application are tending to erode their possibilities.

For her part, Ellen Schafer, Director of Catalogue Exploitation at Argos Films/Cité Films, gave us a rich and complex overview of the challenges posed by moral rights in catalogue management. Using a number of concrete examples, she illustrated the tensions between the aspirations of creators and the demands of the market:

Integrity of the work and restoration: When Night and Fog was released, a censorship, validated by the author, was an integral part of the film on its release. It showed a gendarme hidden behind a post painted directly onto the film. When the film was restored, Alain Resnais asked for the censor to be removed so that the original shot could be restored as it had been filmed.
Broadcasting - new requirements: Netflix now requires full subtitling for works broadcast on the platform. In the case of Wings of Desire, however, after lengthy discussions, it was agreed that part of the film would not be subtitled, in line with director Wim Wenders' initial creative wishes.
Adaptation to new media and formats: When Chris Marker's Sans Soleil was released as a boxed set, Potemkine and Argos Films wanted to add Chris Marker's 1982 book « Le Dépays » as a bonus. They had to convince 13 rights holders of the relevance of the choice and the quality of the paper, for example.
Censorship and self-censorship: The banning of certain scenes of lesbianism from La grande bouffe in Russia due to new legislation on LGBTQ representations illustrates the constraints linked to the distribution of works abroad.
Derivative works and adaptations: Cine-concerts, which may be reinterpretations of the original music or the inclusion of completely different music as in Fantastic Planet by René Laloux, the use of the film as material for a fashion show (such as the use of Wings of Desire by Louis Vuitton) or adaptations or close-ups (such as between Au hasard, Balthasar by Robert Bresson and Eo by Jerzy Skolimowski) raise complex questions about the limits of exploitation of a work.

While the previous examples show that questions relating to moral rights have ultimately been resolved, this is not always the case. The different versions of the text of Nuit et Brouillard, in particular the release in Germany, where an official version, validated by Alain Resnais, and an unofficial and non-validated version, were to be the subject of an exhibition and screening in Germany. This was refused by Alain Resnais' heirs, as the 3rd version was not supposed to exist. Ellen Schafer points out that it is very difficult to apply this moral right when the problem comes from abroad, because it is difficult to verify whether or not it is being applied.

The round table ended with a case study of a right holder faced with the challenge of promoting his heritage while at the same time respecting his grandfather. This is the case of Nicolas Pagnol, Marcel Pagnol's grandson, who is also the guarantor and manager of his grandfather's literary and cinematographic heritage. He outlined a number of cases.

The difficulty of asserting his rights: Despite the fact that Nicolas Pagnol has inherited his father's moral rights, he has encountered obstacles in imposing his vision when adapting the work. For example, when adapting Fanny for the Comédie-Française, he explained that he should have negotiated greater access to rehearsals when signing the contract to ensure that the spirit of the work was respected.

Pressure from producers and broadcasters: While the contract is with the producer, this is not the case with other important elements in the making of a film, such as a TV channel, which can also impose its artistic choices. That's what happened with the casting of Christophe Barratier’s Le temps des secrets, where the channel really wanted actor Kad Merad to play Joseph Pagnol, when the family felt he didn't match the man who really existed. Covid decided otherwise and it was finally Guillaume de Tonquédec who inherited the role.

Preserving the integrity of the work: The Pagnol family had to make difficult choices regarding the distribution of unfinished or controversial works, such as La prière aux étoiles or Gaby ou la belle et l'argent. The desire to preserve Marcel Pagnol's image and not alter his vision and choices sometimes led to decisions limiting public access to these works.