Whilst we have found out many surprising things recently about Pope Francis (such as that he is a passionate fan of the San Lorenzo Football Club, enjoys a tango and used to work as a bouncer in a Buenos Aires bar), we were not surprised to find out that His Holiness’ favourite film is Babette’s Feast.

With themes of selflessness and generosity, no wonder Pope Francis loves Babette’s FeastBabette’s Feast is a 1987 Danish film, directed by Gabriel Axel, based on the story by Isak Dinesen.  Babette, a refugee from Paris is taken in by two elderly and pious sisters in a small Danish village.  Without spoiling the story (if you haven’t seen the movie – you really should), Babette engages in a heart-warming act of such amazing generosity for the small village and the sisters, reducing decades of audiences to tears.  The film won an Academy Award in 1988 for best foreign language film.

We wonder whether the Pope is aware of a recent copyright dispute over the ownership of the film.  Why has this dispute arisen 25 years later?  Perhaps it is due to the film’s recent revival, having regard to its papal fan.

Mr Josi Konski (who claims ownership by reason of purchasing the estate of the producer of the film), has applied for declaratory relief against Mr Gabriel Axel, the director, and the Danish Film Directors’ association in California.  According to the application, Mr Konski has asked the court to make a declaration that the defendants have no copyright interest in the film and no right to object to or interfere with the copyright exploitation of the film.  Mr Axel is apparently claiming that under Danish copyright law, Mr Axel holds the principal copyright in the film, as writer and director.  Mr Konski claims that all copyright that was owned by Mr Axel was assigned to the producer.  There are certainly a lot of different contracts and assignments described in the application, which may complicate things.

The application says that the reason for Mr Axel’s claim to copyright ownership is a Danish provision stating: “Assignment of copyright does not give the assignee any right to alter the work unless the alteration is usual or obviously presumed.”  This doesn’t look like a typical copyright ownership provision to us, but we’re Australian, not Danish.  Those with a conflicts of laws bent must be relishing the prospect of  Danish law copyright principles playing themselves out in a Californian Court soon.

Further, we ask this practical question: Babette’s Feast will be released on Blu-ray and DVD later this year.  Is a DVD release a “substantial alteration” under Danish law?

A discussion about ‘alteration’ triggers in our mind another question: is the Danish provision focussed on moral rights or copyright?  Well, we don’t know, but for readers wanting to know the difference between these concepts, read on:

  • Historically, civil law countries in continental Europe have been concerned with the moral rights of authors, which are based on the author’s creative sense of self. Moral rights are the author’s right to protect his or her personal relationship with their work. Moral rights include the “right of integrity” (the right to prevent distortions, modifications or derogatory uses of the work) and the “right to attribution” (the right to be identified as the author of the work).
  • By contrast, economic rights such as copyright have been central to Anglo-Australian law, namelyis the right of the author to commercially exploit and make money from his or her work. Copyright provides an economic incentive to authors to continue to create new works.
  • Notwithstanding our historic economic focus, moral rights were introduced into the Australian Copyright Act in 2000 (see Part IX). The moral right of an author consists of the right of attribution of authorship, a right not to have authorship falsely attributed and a right of integrity of authorship. The right of integrity of authorship is the right not to have the work subject to derogatory treatment, excepting “reasonable” derogatory treatments. A derogatory treatment would include anything that results in a material distortion, mutilation or alteration of the work that is prejudicial to the honour or reputation of the maker.
  • Under Australian law, copyright and moral rights co-exist. Therefore, if an author assigns ownership in a work to someone else (say they’re architect plans), but the question of moral rights is not deal with, then the new owner may be in for an unwelcome surprise if he or she amends the plans or makes them available without attribution.

Dealing with these issues in Australia:

  • Who owns the ‘copyright’ in a film? The “maker” of a cinematograph film is the owner of the copyright (see s. 98). A “maker” is the person that does the things necessary for the production of the first copy of a film and the person that makes the necessary arrangements (s 22(4)). This would usually be the producer. However, under s 98, the director is also deemed to be the maker of a film, such that the director and producer will be considered co-owners.
  • Who is the author for the purpose of ‘moral rights’ of a film: The “author” of a film is the “maker”, which is defined, for the purpose of moral rights, to be the director of the film, the producer of the film and the screenwriter of the film.
  • Note how the author for the purpose of moral rights, could be different from the maker, for the purpose of copyright.

For readers thinking this is all quite complicated, it is!  Typical film credits provide a clue to the complexity: different nationalities, studios, countries and contributors.  Copyright disputes concerning ownership of films must necessarily grapple with these dimensions.  So too, if one ignores moral rights issues, this could be at one’s peril.