Cinematography and co-Authorship in film: The limits of article 44 of the Italian Copyright Act and possible interpretative developments

Rationale and comparative perspective: the rigidity of Article 44 and scope for a more flexible interpretation

The “exhaustive list” reading of Article 44 LdA is often explained by the historical origins of the cinematographic regime. The statutory model of film co-authors developed at a time when cinematographic works were still understood by analogy with dramatic works and were heavily centred on literary components, music, and directing. Full recognition of the artistic autonomy of individual visual contributions emerged only progressively, alongside a broader reflection on the originality of the various professional roles involved in filmmaking (as evidenced, for instance, by the recognition of the authorial autonomy of composers in musical works).

A further, still-relevant systemic rationale is the need to ensure certainty in the circulation of rights and not to hinder the film’s economic exploitation. This concern also emerges at the international level. Article 14bis(2)(b) of the Berne Convention (Paris Act, 1971) seeks to prevent multiple creative contributors from obstructing or blocking the distribution and exploitation of a film.

Comparative law nevertheless shows that this demand for certainty can coexist with a degree of flexibility in identifying authorial contributions.

In France, although the system designates the authors of cinematographic works ex lege, recognition of an additional creative contribution is not automatic and requires a strict assessment of originality, with a particularly heavy burden of proof. The courts readily deny such recognition where the Director of Photography’s work remains within the execution of the director’s instructions (see Code de la propriété intellectuelle, Article L113-7; Tribunal de grande instance de Paris, Civil Chamber 3, 6 February 2008, No. 06/06837).

In Germany, by contrast, the identification of relevant contributions is more sensitive to the concrete reconstruction of the case and to the role effectively performed within the creative process (see Urheberrechtsgesetz – UrhG, § 89).

From this standpoint, the choice faced by legal practitioners does not lie between an entirely “closed” list and an indiscriminate opening. Rather, the key question is whether it is possible to introduce a criterion for a case-by-case assessment of creative contribution — capable of recognising the input that decisively shapes the work’s visual identity — without undermining the stability of rights allocation and the commercial exploitation chain.

Effects of (non-)co-authorship: rights, credits, remuneration, and the economic exploitation chain

Excluding the Director of Photography from the category of co-authors under Article 44 LdA entails, in practice, a shift in legal status: from an original rights holder (in co-ownership) of rights in the cinematographic work to a technical-artistic collaborator whose position is predominantly governed by contract with the producer. This reduces the economic, moral, and negotiating levers typically associated with authors of the film.

(i) Economic rights: loss of participation in economic exploitation of the film

If the Director of Photography is not recognised as a co-author, they are excluded from the original co-ownership of rights attributed to the persons listed in Article 44 LdA. As a result, they do not participate — even in principle — in rights in the cinematographic work as such, and their remuneration tends to be limited to the fee agreed contractually, without statutory claims linked to later exploitation of the film.

Moreover, they do not have access to certain statutory supplementary remuneration mechanisms reserved to certain authorial figures. This is the case, for example, of the percentage-based remuneration on proceeds from public screenings provided by Article 46(4) LdA, which is granted to certain co-authors of the cinematographic work but not to the Director of Photography.

(ii) Moral rights: credits and influence over alterations

As regards moral rights, Article 48 LdA grants the co-authors of the cinematographic work the right to have their name mentioned, with an indication of their role and contribution, in the film’s projection. If the Director of Photography is not treated as a co-author, they do not benefit from this specific statutory protection, and their visibility becomes largely a matter of production practice and contractual arrangements.

As to modifications of the work, Article 47 LdA provides a conflict-resolution mechanism — through a panel of experts — where disagreements arise between the producer and the co-authors listed in Article 44. A collaborator who is not an author falls outside this procedure and, on that statutory basis, lacks an enforceable say over cuts or alterations, even where such modifications directly affect the film’s visual style.

(iii) Contractual position and rights chain: a structurally weaker position

Finally, exclusion from co-authorship affects the Director of Photography’s bargaining position within the rights chain of the cinematographic work. The absence of authorial status limits their ability to influence dynamics typical of the cinematographic regime, such as producer inertia, modes of exploitation, or subsequent reuses of the work.

In this regard, the mechanism in Article 50 LdA is significant: it allows certain authors to regain control over their literary or musical contribution if the film is not completed or distributed within three years. This provision does not apply to the Director of Photography, who remains primarily exposed to the contractual framework governing their relationship with the producer.

A proposed solution: a controlled opening of Article 44 and measurement of the creative “quid”

As noted, the 2011 decision of the Court of Rome adopts a clear interpretative stance: it denies that the Director of Photography can be classified as a co-author of the cinematographic work under Article 44 LdA, emphasising the closed nature of the statutory list and treating cinematography as falling within directing/artistic direction, without recognising an autonomous creative function.

That said, the very approach based on “creative functions” may allow for a different analytical perspective. The proposal would not be to supplement Article 44 LdA by adding a new co-author in the abstract, but rather to assess whether, in the specific cinematographic work, the Director of Photography’s contribution displays such creative content as to participate — together with the director — in the film’s overall directing function. On this approach, the issue becomes primarily case-specific and aligns with the general criteria for originality under copyright law.

From a factual standpoint, cinematography may embody a creative contribution through individualising choices regarding the use of light, colour and contrast, as well as framing perspectives, materials, and shooting tools. More broadly, these choices determine how images are translated into film language, with significant effects on the visual “text”, style, and dramatic impact of the work. In practice, the creative input may not be confined to shooting itself, but may extend to oversight of the final rendering and the film’s overall visual unity.

A methodological issue remains: how to determine when such choices go beyond the mere technical execution of the director’s instructions. A possible solution, consistent with a case-by-case approach, is to adopt — adapted as appropriate — the criteria developed in case law to distinguish a “simple photograph” from a protected photographic work, and to transpose those criteria to the context of cinematographic photography.

On that basis, what matters is not the technical complexity of the activity performed, but the presence of a recognisable creative “quid”, which may be reflected in the originality of the visual solution, the expressive construction of the image, or the capacity to generate suggestions that go beyond mere reproduction of reality.

Using such a parameter shifts the debate from abstract classifications to what is more consistent with copyright logic: the assessment of the originality of the contribution. This approach would not automatically grant authorial status to the Director of Photography, but would allow it to be recognised where the contribution is expressed through individualising and identifiable expressive choices.

In this way, any interpretative opening would not occur by introducing new categories of persons, but by a controlled application of an already-established doctrinal and judicial criterion, capable of reconciling the system’s need for certainty with the protection of genuinely creative contributions present in the cinematographic work.