The director of photography: A forgotten author?

What is the role of photography in the language of cinema?

One element confirming the centrality of photography in cinematic creation is the recognition it receives within the system of international film awards.

Among the principal institutions that celebrate cinema — from the Academy Awards to the BAFTAs and the major film festivals — cinematography is recognised as an autonomous category of artistic achievement.

Awards for Best Cinematography are consistently placed alongside those for directing, screenwriting and music, that is to say, among the principal creative functions contributing to the making of a film.

Film festivals, moreover, do not serve merely a celebratory function. They also represent a key node within the industrial system of cinema, where the selection and presentation of works contribute to their artistic legitimisation and to their subsequent circulation within the audiovisual market.

This recognition reflects a widely shared awareness within the film world: the construction of the image is a fundamental dimension of cinematic language.

It is not simply a technical contribution. Cinematography participates in defining the style and visual identity of the film.

From a historical and technical standpoint, cinema in fact developed out of photography. The cinematographic image consists of a succession of photographic images organised over time and projected at a speed sufficient to generate the impression of movement.

As André Bazin observes in his essays on the ontology of the photographic image, photography represents «the object itself, freed from the conditions of time and space that govern it», while cinema is its continuation through time.

This relationship between photography and cinema is clearly reflected in film-language theory. The studies of David Bordwell and Kristin Thompson analyse film form through the interaction of four principal dimensions: mise-en-scène, cinematography, editing and sound.

In the present context, attention is focused above all on the visual dimensions of the work — mise-en-scène, image construction and editing — because it is on this level that the creative contribution of cinematographic photography becomes most evident.

• Mise-en-scène concerns the organisation of the scene before the camera. It includes the arrangement of actors in space, the set design, costumes, props and, more generally, all visible elements within the frame.
• Editing, by contrast, organises images in time, establishing the rhythm of the narrative and the relationships among the various shots.
• Finally, the construction of the cinematographic image, commonly referred to in film theory as cinematography, encompasses all choices relating to lighting, framing, perspective, depth of field, colour and camera movement.

Through these choices, the visual identity of the film takes shape.

While music undeniably plays an important role in the cinematic experience, one should not forget that cinema experienced a long era of silent films. By contrast, a film without images is inconceivable.

European Union law offers a further point for reflection. The Court of Justice has made it clear that an image may constitute a copyright work where it reflects the author’s creative choices, for example in the selection of framing, the composition of the image or the handling of lighting.

According to the Court, this occurs where the author «was able to express his creative abilities in the production of the work by making free and creative choices» (CJEU, 1 December 2011, Case C-145/10, Eva-Maria Painer v Standard VerlagsGmbH).

If that is the criterion by which copyright protection is recognised for a photograph, it becomes difficult to deny that cinematographic photography is likewise the result of creative choices.

Can the opposite seriously be maintained?

A film may be aesthetically successful or mediocre; it may be praised or criticised. The artistic merit of the work does not affect its authorial nature. The existence of creative choices remains the prerequisite for copyright protection and constitutes the foundation of the creative contribution made by the person responsible for constructing the film image.

Although the Italian system has traditionally classified cinematographic frames within the category of “simple photographs”, governed by Articles 87 et seq. of the Copyright Act, it is equally true that this classification now raises a number of questions from a systematic standpoint.

The construction of the cinematographic image is the result of a complex creative activity involving choices of lighting, composition, perspective, colour and camera movement.

Automatically treating the cinematographic frame as a merely reproductive photograph therefore risks creating a disconnect between the legal classification of the image and the creative reality of the cinematic process.

That disconnect appears even more evident in light of the recent extension of the term of protection for simple photographs from twenty to seventy years from the production of the image (for more on this, see: Simplification Act: the protection of simple photographs increases from 20 to 70 years).

Where the gap between the two protection regimes is reduced so significantly, the original distinction between creative photography and merely reproductive photography loses much of its systematic function.

It therefore becomes necessary to question the overall coherence of the legislative framework.

Transparency and remuneration of authors under European law

The most recent developments in European copyright law show increasing attention to the economic position of authors and performers participating in the creation of audiovisual works.

An important step in this direction is Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market, which introduced a series of instruments intended to rebalance contractual relations between authors and economic operators in the cultural sector.

Chapter 3 of the Directive establishes a system designed to ensure greater transparency in the exploitation of works and adequate and proportionate remuneration for authors who license or transfer their rights.

Among its most significant provisions is Article 19, which requires those economically exploiting works to provide authors with periodic information concerning such exploitation.

Alongside this transparency obligation, Article 20 of the Directive introduces a contractual adjustment mechanism. The provision allows authors to claim additional remuneration where the compensation originally agreed proves disproportionately low compared with the revenues subsequently derived from exploitation of the work.

In the Italian legal system, these principles were implemented by Legislative Decree No. 177 of 8 November 2021, which inserted Articles 110-quater and 110-quinquies into the Copyright Act.

The former establishes a transparency obligation towards authors and performers, requiring those who have acquired exploitation rights in works to provide periodic information on their use and on the revenues generated (for more on this, see: The new “accounting to authors” obligation under Legislative Decree No. 177/2021).

The latter, by contrast, grants authors the right to obtain further adequate and fair remuneration where the amount originally agreed proves disproportionate to the revenues subsequently generated.

These provisions reflect a significant shift in the understanding of European copyright law. The focus of the legislature is no longer limited to protecting the work as such, but also extends to the economic position of those who contribute to the creation of cultural value.

Within this framework, however, an evident tension arises.

The European system strengthens the economic protections afforded to authors and performers, while the traditional structure of national cinematographic copyright law continues to leave at the margins a creative figure who is central to the making of the film.

Indeed, direction of photography contributes decisively to shaping the visual identity of the cinematographic work.

If European law seeks to guarantee transparency and remuneration to those who participate in the creation of audiovisual works, it becomes difficult to maintain that the director of photography falls outside that system of protection.

The risk is of producing a paradoxical outcome: one of the most widely recognised figures in film production would continue to remain deprived of the guarantees of transparency and adequate remuneration provided for authors.

To understand how this systematic tension may be resolved, one must return to a provision of the Copyright Act that is often overlooked: Article 10, concerning works created in collaboration.

And it is precisely from that perspective that the question of the position of the director of photography within the cinematographic work can be addressed.

Article 44 and the risk of forgetting an author

Article 44 of Law No. 633 of 22 April 1941 on copyright identifies the typical authorial figures of the cinematographic work and assigns to the director — referred to in the statute as the artistic director — a function of creative synthesis and coordination of the work.

The structure of this provision, however, did not arise from a theoretical reflection on the language of cinema, but from the reworking of earlier legislative models.

As early as Royal Decree-Law No. 1950 of 7 November 1925, the authorship of the cinematographic work was in fact organised around three principal elements:

• the written scenario,
• the music, and
• the film reel.

The 1941 Act reworked that framework by replacing the earlier category of the written scenario with the author of the story and the author of the screenplay, while preserving the idea of identifying a limited core of structural creative contributions to the cinematographic work.

Within that framework, the visual dimension of the film was subsumed under the figure of the artistic director — that is, the director — to whom the function of synthesising the various creative components of the work is entrusted.

Direction therefore operates as the point of convergence among the different dimensions through which the film takes shape: the organisation of scenic space, the construction of the image, and the temporal organisation of sequences through editing.

It is precisely here that the general principle governing works created in collaboration, as set out in Article 10 of the Copyright Act, becomes relevant.

Indeed, principal creative contributions cannot be treated as mere technical inputs.

This is particularly true of the construction of the cinematographic image, through which the visual identity of the work takes shape.

Moreover, where a work arises from the creative contribution of several persons whose contributions merge into a unitary and inseparable result (Article 10), copyright belongs jointly to the co-authors.

The cinematographic work is one of the clearest examples of this model of collective creation. A film takes shape through the integration of different creative contributions which, once the work is completed, are no longer separable from one another.

Read from this perspective, the rules laid down in Article 44 cannot, under a retrograde and purely literal interpretation, exhaust all possible creative dimensions of the cinematographic work.

The general principle set out in Article 10 makes it possible to take into account those contributions which, although not expressly indicated in Article 44, participate in a substantial way in the expressive form of the cinematographic work.

Today, this perspective acquires particular significance in light of the evolution of European law.

Directive (EU) 2019/790 introduced obligations of transparency in the exploitation of works and the right to adequate and proportionate remuneration. Its implementation in the Italian legal system has strengthened authors’ rights to know how works are used and to participate in the revenues generated by their exploitation.

In this context, excessively restrictive interpretations of Article 44 risk producing problematic effects.

A rigidly literal reading of the provision could in fact lead to a diminished legal recognition of creative contributions which, in the practice of the film industry, have long been regarded as an integral part of the authorial process.

The issue, therefore, does not concern merely the symbolic recognition of a single artistic profession. Rather, it concerns the overall balance of the rights system in the audiovisual sector.

Authors should not be forgotten.

And this applies in particular to the director of photography, whose contribution to the construction of the cinematographic image represents an essential component of the film’s identity.

If audiovisual copyright law is to continue to reflect the reality of contemporary cinematic creation, it can scarcely ignore the creative role of the person responsible for the visual form of the work.

Otherwise, the risk would not merely be that of relegating to the margins a figure central to the creative process, but also that of undervaluing the authorial contribution of direction of photography through an opportunistic and restrictive reading of Article 44.