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Cinematographic Heritage of Soviet Ukraine: How to avoid Copyright Infringement
Soviet laws and regulations governing film production differed from internationally recognized concept of copyright protection in several important respects. The filmmaking industry of the Soviet Union belonged to the state. Therefore, the rights to movies were usually assigned to state-owned film studios of a particular Soviet Republic and could have been re-assigned only within the network of the local Ministry of Culture. As a rule, the contractual framework in the sphere of cinematography was peculiar as well and rather poor considering that the scope of authors' rights was limited and the applicable law conferred intellectual property rights on fewer categories of persons involved in film production as compared to modern law.
After the dissolution of the USSR, the newly independent states developed their own legislation on copyright and related rights, sometimes providing for transitional applicability of new laws in order to protect rights of Soviet authors. Ukrainian law became applicable, inter alia, to films that were produced at state-owned studios of the former Ukrainian SSR (Dovzhenko Film Studios, Odessa Film Studio, Kievnauchfilm, etc.).
Apparently, public interest in movies produced in the Soviet era has grown significantly in recent times. The nostalgia of the older generation and curiosity of the younger one, as well as attempts to familiarize people outside the newly independent states with works of Soviet filmmakers, have contributed to popularization of the Soviet era cinematographic heritage. However, considering the peculiarities of law regulating Soviet filmmaking, it is advisable to take a cautious approach while identifying owners and right holders of Soviet cinematographic works. Each individual movie could have a different history and legal status although some general guidelines could be mentioned in this regard.
Distribution of economic rights
As a general rule, the On Copyright and Related Rights Act of Ukraine No.3792-XII of 23 December 1993 (the Act) applies to legal relations that arose after it came into effect. However, the Act's Transitional Provisions provide for additional rules regarding terms of legal protection of creative works. Under the said Transitional Provisions, the terms of legal protection of creative works established by the Act are applicable in case a 50-year term of protection post mortem auctoris had not expired prior to the Act coming into force. Therefore, the copyright holders of a Soviet film should be determined under the law that was effective when the film was created. The term of protection of the film, however, is calculated under the Transitional Provisions of the Act.
Pursuant to the Civil Code of the Ukrainian SSR of 18 July 1963, the economic rights to a movie belong to an organization that produced the movie. Unlike applicable law, the Code did not grant the screenwriter, composer, director, cameraman and art director of a movie any economic rights to the movie that they created. Commonly, Soviet movies were produced by state-owned film studios (like Dovzhenko Film Studios and others) under a government order. In view of this, the economic rights to the movies belonged to the state as represented by state-owned film studios.
As provided for by the Decree of the President of Ukraine On Arrangements for Celebration of a Centennial Anniversary after Birth of Oleksandr Dovzhenko No.511/94 of 10 September 1994 and the Regulation of the Ministry of Culture of Ukraine On Recognition and Carrying as Assets and Accounting of Economic Intellectual Property Rights to Movies of 19 May 2008, No.575/0/16-08 films that were produced at state-owned film studios at government expense are recognized as the national property of Ukraine.
Consequently, the rights to movies of the Ukrainian SSR that were produced by state-owned film studios between 1953 and 1991 are national property that is managed by the Ministry of Culture of Ukraine. Considering that sometimes the Ministry of Culture transferred some movies for management by state film studios (e.g., Dovzhenko Film Studios), a particular studio can be a copyright holder of a film.
It should be mentioned that under Soviet law, the copyright for amateur movies was vested in their authors. However, Soviet amateur movies should not be regarded as a widespread phenomenon due to the state ownership of filmmaking industry and the high cost of film production.
Economic rights of performers
The law of the Soviet Ukraine did not provide for related rights, including rights of performing artists. However, under the Transitional Provisions of the Act, the Act is applicable to those performances that were first recorded or were made available to the public not earlier than 50 years prior to the Act coming into force. Therefore, the provisions of the Act could generally apply to a number of performances of Soviet film actors.
As a practical matter though, the retroactive effect of the Act regarding performances does not significantly benefit the actors of those times. The problem is that relations between actors and a particular state-owned film studio were usually governed by employment agreements, making room for application of the work for hire concept. Generally in the case of old performances, this concept implies that exclusive economic rights to the work for hire belong to an employer unless otherwise provided for by an employment or other agreement. Moreover, the Act stipulates that the economic rights of a film actor are regarded as transferred to the production company of the film unless other rules are set forth in an agreement.
Accordingly, the chances that a Soviet film actor could hold some economic rights to his or her performance appear to be very low. However, each particular situation could be different and it is worth while looking into all available agreements and other aspects of legal relations between the actors in a movie and its production studio.
Moral rights protection
Unlike economic rights, the moral rights of an author are non-transferable and their effect is not limited by a specific time period. Although moral rights are not heritable, the heirs of an author can arrange for protection of his or her moral rights.
In view of this, the use of a cinematographic work requires scrupulous attention in order to avoid infringement of moral rights, including potential damage of integrity of a film. For example, in recent years commercial organizations have invested significant funds in order to "improve" old movies and make them more interesting to the public. The campaign on digital colorization of black-and-white films has become the most well-known among such efforts. Other similar actions include editing, formatting changes (like letterboxing), insertion of additional content and breaking with commercial advertisement. Also, use of separate parts of a movie, such as use of a separate shot or image, may sometimes amount to moral right infringement too.
Film distributors or other organizations usually acquire only the economic rights to a film from a studio or other owner of such rights and do not obtain any permission from the moral right's holders or their heirs.
This practice, however, might lead to certain risks.
In this context, it is worth mentioning a recent claim brought by a heir of the director, co-author of the script and actor of the well-known Soviet film "Only Old Men are Going to Battle" that was produced at the Dovzhenko Film Studios in 1973. A Ukrainian company had acquired the economic rights to this popular black-and-white Soviet movie from a state agency and then restored and colorized the movie. The claimant argued that colorization of the film infringed on her father's moral right because production of a black-and-white movie was a creative concept of her father. Consequently, the claimant asked the court to stop the infringement by ordering withdrawal of the colorized version of the film from circulation. Apart from this, the claimant was seeking a public apology and token compensation for moral damages in the amount of one Ukrainian Hryvnia.
The claim passed through the courts of three instances. The local court found that the respondent indeed had duly obtained all the necessary economic rights in order to carry out the restoration and colorization of the film. However, the company did not receive any permission from the film author for this. Accordingly, the local court ruled in favor of the claimant and declared that colorization of the film without permission of the author (or his heirs) violated the right of integrity of the creative work. However, the claimant subsequently lost in appellate and cassation courts. Notably, the higher courts did not adjudicate the issue of infringement of moral rights. Instead, they found that the claimant was not eligible to protect her father's moral rights because of her waiver of inheritance and general impossibility to inherit moral rights.
This court dispute has demonstrated that a person or entity planning any interference in a cinematographic work should factor in any subsisting moral rights among other aspects.
To sum up, general recommendation for a person or entity intending to use a Soviet movie is to arrange for its copyright due diligence. Seeking a clarification on copyright owners of a particular cinematographic work from the Ministry of Culture could be a starting point for this exercise. Furthermore, depending on the Ministry's response, it may be advisable to conduct additional research, check the copyright notice on the original film, if any, and review all available documents including those reflecting the chain of title to the film.