Table des matières
Introduction: “Beyond Clueless”: Framing the Transition of the European
Audiovisual Sector ... 3
Chapter I: “Birth of a Nation”: Drawing the Borders of the Cinematographic Nation ... 8
Introduction ... 9
Issues ... 10
Part I: Some Principles of the Law ... 14
Copyright and related rights: definitions and functions ... 14
The Law as a discourse ... 16
Part II: Film Copyright – Object and Ownership ... 21
The Early Days ... 21
An Ontological Question: What is cinema?... 22
Cinema and the Avant-Garde... 25
But who owns the rights? ... 28
Dissemination of the idea of the author ... 30
Conclusion ... 32
Chapter II: “The Social Network”: Film Heritage and the Information Society . 34 Introduction ... 35
The New Film History and the Archive ... 37
Convergence and the Information Society: a New Economic Model ... 41
Legal Convergence in Europe: the Paradoxes of the Information Society ... 47
Challenging cultural commodification ... 50
The Digital Library ... 51
Conclusion ... 53
Chapter III: “El Orfanato”: Film Archives as Legal Guardians of our Audiovisual Heritage ... 54
Introduction: Defining the Orphan Work Problem ... 55
Case 1: The Orphan Work Directive ... 58
The Sector Challenges the Law ... 59
United States: a Legal Laboratory ... 59
Ximon ... 61
In Europe ... 62
Case 2: FORWARD Project ... 65
Conclusion ... 70
Conclusion ... 71
Bibliography ... 76
Books ... 77
Articles ... 79
Policy and Legal Documents ... 81
Introduction: “Beyond Clueless”:
Framing the Transition of the
European Audiovisual Sector
The arrival and rapid spread of digital technologies has had a tremendous impact on the work of film archives. In a very short time, they have had to adapt their workflow to a new, complex and hybrid media environment. Acquisition policies were reconceptualized to include new media, and archivists trained to preserve its new formats. Moreover, many opportunities arose to make audiovisual collections more accessible. Once digitized, films can be shown endlessly without risking damage to the original reel. They can be transmitted in seconds to the other side of the world, substantially broadening the potential audience.
The promises of the digital era are proving slow to become reality due to the many obstacles to their fulfilment. Jon Wengström (Curator of Archival Films at the Swedish Film Institute) identifies three major obstacles: funding, fast-changing and yet inadequate technology, and legislation. The last obstacle, he argues, is especially problematic:
“Clearing rights can often be a very time-consuming (and sometimes costly) affair, not least for older films where rights may have changed hands many times over the years, and where production companies have ceased to exist. There is also uncertainty on how the 2006 European Union directive on copyright and related rights for audiovisual works should be interpreted in national legislation, and it is not always easy to distinguish the relation between producers’ rights and authors’ rights.”1
The first film archives existed at first outside of institutional circuits, in the periphery of the industry, and their activities often took place at the margins of legality. Non-commercial, public archives were founded in the early 1930s. At the time, cinema was transitioning to sound, and, as Raymond Borde (the founder of the Cinémathèque de Toulouse) explains, the industry was destroying film reels really quickly.2 A few
individuals took upon themselves to collect films and film-related material before their irreversible disappearance. Henri Langlois and Georges Franju founded Cinémathèque Française in 1935, Iris Barry set up the first film department at the Museum of Modern Art in New York, and in 1938, Pierre Vermeylen, Henri Storck and Vladimir d’Ursel began collecting films in Brussels.
1 Jon Wengström, “Access to Film Heritage in the Digital Era – Challenges and Opportunities,”
Nordisk kulturpolitisk tidskrift 16 (2013): 131.
The first generation of archivists accumulated whatever material they could get hold of and gathered them in all available spots. The material was bought and found in all sorts of places in defiance of all copyrights. The right holders often ignored what was done with their work or that they were even safeguarded.3 The relations between
archivists and the industry were thus strained, and the first archivists spent a considerable time trying to gain the industry’s trust.4 The success of their work was
mitigated. Ernst Lindgren for instance attempted three times to establish a compulsory deposit for films in the UK, as it existed for books, but his draft proposals were never voted by the Parliament due to the resistance of the British film industry.5
Although they are forced to work together, right holders and archivists have never fully come to trust each other. Moreover, archivists tend to see copyright as an obstacle to their work. At the 2015 Colour Conference organized by the EYE Film Institute in Amsterdam, Bryony Dixon, curator of silent films at the BFI National Archive, complained about the national character of copyright law, citing it as the primary obstacle for broadened accessibility of the collections.6 Her remark, which was not the
primary subject of the talk, nevertheless reflects a feeling of powerlessness generally shared by the archival community.
The European copyright legislation that regulates the audiovisual industries proves indeed problematic for film archives. The European Parliament voted the Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, which stipulates:
“It should be made clear that all rightholders recognised by this Directive should have an exclusive right to make available to the public copyright works or any other subject matter by way of interactive on-demand transmissions.”7
3 Borde, 45.
4 Different approaches were possible. Henri Langlois for instance favoured strong personal
relations with the filmmakers and producers. Ernst Lindgren on the other hand tried to convince the studio if the excellent results of its preservation policies, and overcame a lot of their resistance. – Geoffrey Nowell-Smith and Christopher Dupin, The British Film Institute, the Government and Film Culture, 1933-2000 (Manchester: Manchester University Press, 2012), 25.
5 Dupin & Nowel-Smith, 52.
6 Bryony Dixon, “Intervention” (The Colour Fantastic: Chromatic World of Silent Cinema,
Amsterdam, March 2015).
7 European Union, Directive 2001/29/EC of the European Parliament and of the Council of 22 May
The current law, which is very much a continuation of what existed in the analog age, is primarily designed to sustain the development of creative industries. It prioritises therefore the rights of the author over those of the user – whether a private person or a public institution.
In this dissertation, I would like to argue however that reality is more complex than it first seems. Copyright law is, as all legal texts, a discursive formation based on social realities, and should therefore be understood in a broader social, political and economic context.
The advent of digital technologies has not only impacted the work of film archives, but the whole industry. Digital tools were integrated in the production, distribution and exploitation of films. Less and less films are shot today on analog material and post-production is now a hybrid process. Furthermore, the Internet and personal computers enabled the development of alternative distribution models such as video-on-demand. Since the early 2000s, piracy experienced a boom and continues to grow online, with many websites offering illegal streaming or downloadable file versions of films. Traditional business models were challenged and niche audiences grew in importance.8
The film industry as a whole is undergoing tremendous changes, transitioning from one system to another. Giovanna Fossatti explained that
“In the middle of the technological transition, with a sense of the direction (towards the digital) but with no real sense of the destination, we have a unique (and uniquely limited) point of view (…) The current technological transition comes with promises of a revolutionized medium and the utopian dimension has not yet surrendered to the routine of a reified technology and practice.”9
As Fossatti highlights, digital technologies offer many opportunities. Their potential is not yet fully a reality due to slow evolution of the social context. It is up to the users, the institutions, the industry, and society as a whole to determine how the technologies will be used.
As policymakers and legislators struggle to keep up with the fast changes, archives Society (Brussels, 2001), 3, last access Sept 29th, 2015 -
http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=URISERV:l26053&from=EN.
8 Chris Anderson, “The Long Tail,” Wired 12 (2004): last access Sept. 20th, 2015 -
http://archive.wired.com/wired/archive/12.10/tail.html.
9 Giovanna Fossatti, From Grain to Pixel. The Archival Life of Film in Transition (Amsterdam:
and professionals alike feel the inadequacy of the legislation. However, I will argue that the current situation is not a dead-end. Law is on the contrary a dynamic process. It is influenced by social discourses and the activities of all stakeholders – the policymakers as well as the industry, the end-users, and cultural institutions.
In this thesis, I will demonstrate that the law is an extension of daily social practices. I will do so by building bridges between different academic disciplines – film studies, law, and economics – that are too often seen as separate.
In the first chapter, I will establish the theoretical framework of this work. In the first part of the chapter, I will extensively discuss the nature of law. I will argue that, although they are based on economic realities, legal texts actually reflect the dominant ideology. In the second part, I will delve more in-depth into the formation of the legal discourse in the first half of the 20th century, stressing the influence of film theoreticians.
The second chapter will be dedicated to the economic transition of the audiovisual sector. I will argue that the development of new audiovisual technologies is concurrent to a reorganisation of the media industries characterised by an economic and technological convergence. The convergence discourse is supported by the European institutions who see there an opportunity to create a competitive knowledge economy. The role and function of heritage institutions are challenged in this new context.
Finally, the third chapter will look at the Orphan Work issue as a symptom of the transition period. I will argue that no ideal solution exists to solve this issue as long as the bases of the current copyright legislation are not challenged. Yet the introduction of a legal balm, the Orphan Work Directive, has given the film archives some tools to reimagine their role in the contemporary society.
Chapter I: “Birth of a Nation”:
Drawing the Borders of the
Cinematographic Nation
Introduction
The Cinémathèque française became the centre of French cinephilic culture in the 1950s. By then, the institution founded in 1936 by Henri Langlois and filmmaker Georges Franju had acquired an extensive collection of films because, unlike most other European archives, its activities had not stopped during World War II. The institution sent Lotte Eisner, the curator of the Cinémathèque, to the South of France to look after the collection of banned films kept by the Cinémathèque, thereby saving an extensive collection of American films otherwise forbidden in Europe.10 The collections of the Cinémathèque turned out to be a gem for the young cinephiles in the decade following the Liberation.Despite the lack of large viewing spaces, the Cinémathèque multiplied its public activities in the postwar period. The size of the only room available for screenings was not adapted to the size of the audience, and spectators were at times forced to fight for a seat, thereby participating in the creation of the myth surrounding the Cinémathèque. Georges Franju and Henri Langlois were involved in the ciné-club movement of the 30s with their own organisation, Le Cercle du Cinéma, which would later develop into the Cinémathèque. The whole Parisian intellectual elite, from Jean-Paul Sartre to Julien Duvivier, gathered there, and the institution was soon a victim of its own success. Screenings were fully booked in advance, and fights bursted out several times in front of the theatre. Langlois dissolved the Cercle in 1947 to refocus his programming activities to the Cinémathèque’s premises located on rue de Messrine. He established a system of annual paying membership in order to limit and control the audience.11 He gathered around him a tight-knit community of film critics who would later work together at the
Cahiers du Cinéma.
Langlois had a very clear idea of what programming was:
“Notre but n’est pas comme certains d’entre vous semble le croire, de montrer les chefs-d’oeuvre du cinéma, mais de permettre la vision de tous les films nécessaires à la connaissance de l’évolution du cinéma. (…) Le Cercle a pour tâche essentielle de permettre le reclassement des valeurs et l’établissement par la vision de toutes les oeuvres
10 Laurent Mannoni, Histoire de la Cinémathèque Française (Paris: Gallimard, 2006), 138. 11 Jacques Doniol-Valcroze, founder of the Cahiers du Cinéma, quoted in Manonni, 223.
caractéristiques, bonnes ou mauvaises, d’une histoire critique du cinéma.”12
Langlois brought together films in an unexpected way in order to trigger a reaction from the spectators.13 Post-screening discussions were not formally held at the Cinémathèque to encourage the spectators to make up their own opinions. In parallel to the screenings, Langlois often held conferences on cinema. 14 The archivist’s purpose was not only to show films for the pleasure of viewing them but as a way to understand cinema and look critically at its history. By showing unseen or forgotten films, he encouraged a new generation of critics to challenge the canons of cinema. Screening films was a central activity of film archives since their beginnings – it is tied to their
raison d’être.
Issues
The activities of film archives can be divided into three categories: acquisition, preservation and giving access to the collections. Throughout their history, the institutions shifted their priorities from one to the other depending on external factors. Two of the most prominent archivists of the time, Henri Langlois and Ernst Lindgren, embodied this conflict.The founder of the French Cinémathèque Henri Langlois was a passionate cinephile and collector. He was, as Penelope Huston put it, a “Falstaffian figure,” a strong personality who not only influenced the archive, but embodied it.15 He saw the film
archive as a tool to promote film culture and placed programming at the core of its activities. This resulted to the detriment of the long-term preservation of the collection, their cataloguing and restoration.
The first chief librarian of the British National Film Library (NFL, today BFI Film Archive) Ernst Lindgren on the other hand was well aware of the limitations of the archive. He introduced an acquisition policy based on three criteria: representativeness
12 Henri Langlois quoted in Manonni, 215.
13 Langlois famously showed for instance a double bill of Triumph of the Will (Leni Riefensthal,
1935, DE) and The Great Dictator (Charlie Chaplin, 1940, USA) – Manonni, 225.
14 Manonni, 221.
15 Penelope Huston, Keepers of the Frame: the Film Archives (London : British Film Institute,
of the films, their historical interest and their sociological value.16 He developed
pioneering preservation techniques, and set the first standards of film cataloguing. Lindgren’s rigorous management enabled him to establish a national institution that was to become a flagship of British cinematic culture and legitimise the existence of the national archive in the eyes of the film professionals.17
Lindgren was however criticised by cinephiles and film critics alike. He was reluctant to show films that had not been duplicated on viewing copies because of the frailty of the film reel.18 The restrictions he imposed on accessibility to the collections
were not well perceived and contrasted strongly with Langlois’ access-oriented policy. Despite his poor collection management, the latter was hailed by film critics and enthusiasts of the time for his enthusiasm to transmit his love of cinema. In the long run, it appears that both archivists contributed equally to the safeguard of cinema, albeit their means had differed.
As the BFI and the Cinémathèque examples show, acquisition, preservation, and making available to the public are sometimes conflictual activities. The reasons for this conflict may be due to the personality of the archivists, as the reports of the Lindgren/Langlois dispute often stress, but other external factors have to be taken into account.
Firstly, technology has not always enabled immediate and unmediated access. Film reels are, as Lindgren continuously stressed, very fragile. Because they are heavy and difficult to manipulate, they cannot easily be moved and brought to other movie theatres, often limiting their exhibition outside the archives’ premises. Furthermore, reels have an inherent vice: they deteriorate when projected. Therefore, showing a film paradoxically contributes to its death, especially if only one print exists.
Archivists aim at the long-term preservation of the collections in their care. Because of the fragility of the film material, access was at first conditioned to preservation by archivists at the dismay of the public and film historians who demand a more immediate access to the film.19 The different expectations from the film archives
16 David Francis, “From Parchment to Pictures to Pixels. Balancing the Accounts: Ernest Lindgren
and the National Film Archive, 70 Years On,” Journal of Film Preservation 71 (2006): 32.
17 Geoffrey Nowell-Smith and Christopher Dupin, The British Film Institute, the Government and
Film Culture, 1933-2000 (Manchester: Manchester University), 72.
18 Nowell-Smith and Dupin, 51-53.
between the stakeholders led to misunderstanding, and a lack of overall understanding of the archivists’ work.
Secondly, funding, or rather the lack of, limits an archive’s ability to make their material accessible. Archives do not always have the staff, space and equipment necessary to organise screenings on a regular basis.
European national and regional film archives are primary cultural organizations. Their activities thus must have a cultural or educational purpose and cannot be profit-making, as stipulated in the Fédération Internationale des Archives de Films (FIAF) ’s Code of Ethic.20 Competing with commercial companies, the theatres linked to film archives
cannot survive on their self-generated income. Subsidies form an important part of their revenues, and they rely on a government’s good will.
At the same time as the Cinémathèque was multiplying its screening activities in France, Lindgren and the British Film Institute’s (BFI) director Denis Forman were working on securing the position of the National Film Theatre in London. The NFT had opened in 1952 after long negotiations between the BFI, the professional associations, and the London authorities. Despite its popular success, the NFT suffered from the lack of funding – it lived on self-generated income - and repeated attacks from the industry that saw it as unfair competition. Its situation remained precarious for 15 years until the BFI’s central governance decided to allocate a fund to the exhibition of films.21
Another example of the struggle of national film archives to show their collections was seen in Belgium, where the Royal Film Archive managed, with the support of socialist Belgian Justice Minister and president of the film archive Pierre Vermeylen, to secure state funding in 1962 that enabled then-curator Jacques Ledoux to open the
Musée du Cinéma. The hybrid space of the museum, divided between two screening
rooms and an exhibition of pre-cinematic devices, was conceived to educate the general public about questions pertaining to cinema, its history and its materiality.22 It was
rebranded Cinematek and renovated in 2007 to incorporate viewing devices and video screens. With a programming centered around the national collections, the Cinematek has remained the window of the archive.
20 Fédération Internationale des Archives de Films (FIAF), “Code of Ethics,” last access Sept. 3rd,
2015 - http://www.fiafnet.org/uk/members/ethics.html.
21 Nowell-Smith and Dupin, 85.
22 Anne Head, A True love for Cinema: Jacques Ledoux, Curator of the Royal Film Archive and Film
As the BFI and the Belgian film archive’s examples show, governments can have ambivalent attitudes towards archives. While they strongly encourage film archives to make their collections accessible to the public – especially since the 1990s -, States have in parallel cut their subsidies, endangering in some countries the national and regional institutions’ very existences.
Finally, legislation also influences the accessibility of the collections. As films, like other cultural products, are indeed subject to copyright legislation, their accessibility depends legally on the goodwill of the authors.
Intellectual Property Rights had been introduced in the 18th century to protect the
rights of authors and artists by granting them the exclusive rights to the communication and diffusion of their works. The privatization of all cultural productions through legal tools was not a hazardous event. Triggered by a shift in economic relations, laws are a series of rules negotiated within different social groups to organize society. They are rooted in the wider social discourses and philosophies, evolving constantly. Legal texts protecting copyright and related rights for instance were concurrent to the dissemination of the ideas of the Enlightenment philosophers in Europe. The two European legislations, the British Copyright and Related Rights System and the French
Droit d’Auteur, bear traces of John Locke’s (1632-1704) principles on private property
and Immanuel Kant’s (1724-1804) writings on art and the genius of the artist.
The influence of copyright legislation extends beyond the circle of the law to spill over to society. The legal texts institutionalize the social discourse on art, and frame our relation to the cultural industries, making them seem natural. By defining the object and beneficiaries of the laws, they translate philosophical concepts into state ideology. Yet the Law is highly unstable, evolving along with the social, economic and technological context.
Part I: Some Principles of the Law
Copyright and related rights: definitions and functions
Copyright law was introduced in 18th century Europe as a means to regulate theemerging literary market. In the United Kingdom for instance, following the demise of the Royal censorship privilege, the Company of Stationers (the publishers’ guild) lost its monopoly over the book industry, enabling the entry of new stakeholders in the market. Fearing the new competitors, the publishers demanded to the government a regulation of the market. Members of the House of Commons, who feared a disguised version of the Royal privileges, only partially acceded to the publishers’ request. They agreed with the need for regulation but instead of vesting the rights to the publishers, as the latter had hoped for, they vested them in the authors.23 The Statute of Anne (UK, 1709)
implemented this decision, providing for the first time a legal status to the author. The Statute of Anne endowed authors with the right to control the reproduction of their works for a limited period of 28 years from the first publication. The lawmakers had a dual purpose in mind. On the one hand, they hoped through the legal text to protect authors from illegal dissemination of their works. The printing and dissemination of works without neither the author nor the publisher’s consent was more than common, to the detriment of the author who was not remunerated, and of the works, which could be modified accidentally or on purpose.24 Once the Royal privileges
were removed, no law explicitly prevented such practice.
The second purpose of the Statute of Anne was to facilitate the dissemination of printed works. Printing in itself is often credited for enabling the mass dissemination of ideas that preceded the development of the modern times. However, technology was a mere facilitator and cannot be separated from its context – social, economic, political, and of course legal. The Statute, as described above, was likely to hinder the mass dissemination of ideas the printing press had technically made possible. The author’s exclusive control over the work, guaranteed by the law, was detrimental to the public’s rights to access it. Therefore, in order to prevent excessive control by the publishers
23 Anne Barron, “Copyright,” Theory, Culture & Society 23 (2006): 278. 24 Barron (2006), 279.
who had bought the copyrights from the authors, the Statute also limited the exclusive rights of the authors and publishers. The text limited the copyright to a specific period of time and provided a mechanism to cap the prices. The exemptions to the authors’ property rights were introduced so as not to hinder the dissemination of ideas, and respect the public’s right to access cultural production.25
The Statute of Anne was the first legal text to introduce the modern idea of a “copyright.”26 The text laid the foundation of the British Copyright and Related Rights.
This norm, which extended to Commonwealth nations and former British colonies like the United States, was intended to balance the rights of the authors with those of the public. Drawing on John Locke’s conception of private property, copyright laws consider that artworks are the fruit of the artist’s labor. In the texts, the remuneration is seen as a reward for the time and labor put into the final result, and it provides the artist with a means of existence. Furthermore, the remuneration is intended to work as an incentive to encourage artists to create. From the outset, the Copyright doctrine was thought to balance the diverging interests of the different groups – the public and the authors – in order to maximize its reach.
The British Copyright system was originally proposed as a solution for literary productions before being extended to the other arts. The Dramatic Copyright Act 1833 gave the owner the exclusive performance rights while the Copyright Act 1842, as its name indicates, provided to the right holders the exclusive right to reproduction of their works in the written form. These two acts provided the basis for later Acts until 1956.
The extension of copyright to new or other art forms is indeed not automatic in the Copyright system, and the law has to be adapted when new art forms, like photography and the cinema, emerge. The limitations of protected works to an exhaustive list lead to tedious debates concerning the nature of new media like the cinema, as we will see at a later stage.
When the United Kingdom was developing its Copyright system, France was devising its own system to regulate the cultural market, known as the Droit d’Auteur. This legal doctrine highlights the creative aspect of artworks, always favouring the author above other stakeholders like the employer or producer. Inspired by Kant’s “creative genius” ideal, the Droit d’Auteur recognizes artworks as the sole expression of
25 Barron (2006), 279. 26 Barron (2006), 278
the artist’s personality, acknowledging the existence of an inherent right of the artist to have complete economic and moral control over his work.
The modern Droit d’Auteur is based on two revolutionary Acts: The first from13-19 January 1791, provided performance rights for dramatic works, and the second from 19-24 July 1793, assigned copyrights of texts, musical compositions, paintings and drawings.27 Unlike the British system, the Droit d’Auteur does not discriminate between
the media but protects “all works of the mind whatever their kind or form of expression.”28 It is thus more flexible and readily adaptable to production changes.
The Copyright and Droit d’Auteur doctrines both intended to regulate the art trade. By doing so, they configure our relations to art. The systems are conflictual, as it appears in their understanding of the object and beneficiaries of the law. While the Copyright law insists on the social and economic value of artistic productions, the Droit d’Auteur favours their creative aspect and link between the work and the artist.
These differences show that legal texts are not neutral: they reflect the way society sees itself rather than how it actually is. The various conceptions of art, as we will see in the next chapter, result from intense negotiations between the different parties, lawmakers, the industry and the general public.
The Law as a discourse
Legal studies are too often seen as being of interest for legal academics only. The complexity of legal texts and their vocabulary makes them seem difficult to understand for someone who is not trained for the job. As a consequence, many, including scholars in the humanities, dismiss the analysis of the law as a problem solely concerning legal professionals. Yet laws help us apprehend reality and the social order that surrounds us. Legislations affect us, as citizens, beyond the mere realm of the legal profession.Law is a regulatory mechanism; it helps organize society. For instance, traffic regulations determine how road users move in the public space depending on their status as pedestrians, drivers, cyclists. The texts, written and voted on by the government, are effectively implemented by the users. Traffic regulations are not merely written texts, they actually come to life through our actions and behaviours.
27 Pascal Kamina, Film copyright in the European Union (Cambridge: Cambridge University Press,
2002), 15.
Legal texts are therefore not purely descriptive but also have a performative function and, through this, they shape reality.
According to Marxist theories, society is divided into two strats: the base and the superstructure. The base consists of the conditions (technology, infrastructure) and the relations (employer-employee) of production. In Marx’ social design, men are not defined as individuals but as part of and in relation to their position within the production system as a whole. The relations of production constitute the economic structure of society, what Marx calls the “the real foundation, on which arises a legal and political superstructure and to which correspond definite forms of social consciousness.29” In other words, the economic relations determine the other
non-economic components of society - such as art, religion, education, politics and law - that constitute the superstructure. Therefore, any change in the means and relations of production – such as the introduction of new technologies – will provoke changes in the superstructure.
Analysed from a Marxist perspective, copyright legislation resulted from a transformation of the base. The shift from a feudal to a capitalist system of exploitation affected literary production. A correlation exists between the mass dissemination of ideas made possible by the invention of the press and the abolition of royal privileges in Europe, which led to a reconfiguration of the relations of production into a literary market based on competition. The rules that had defined the old literary market were no longer relevant in the new system.
Furthermore, as mentioned above with the example of traffic regulations, laws are performative texts, influencing our behaviour. Because of their official character, the legal texts hail all individual members of the society as their subjects, playing thereby an important role in shaping the dominant ideology of the society - a function highlighted by Louis Althusser. Drawing on Marx’ notion of the superstructure, the French Marxist philosopher argued that the State Apparatus (SA) – including among others the Army, the Administration, the Tribunal, the Government, the Police - could not explain the dissemination of the dominant class’ ideology throughout the whole society. Instead, he suggested besides the SA, which worked primarily through repression, the existence of a series of distinct institutions – including School, Religion, Family, Judicial and Political systems - that he called Ideological State Apparatuses (ISAs). Unlike the SA, the ISAs
29 Karl Marx, A Contribution to the Critique of Political Economy (Moscow: Progress Publishers,
worked primarily “à l’idéologie,” i.e. they did not coerce the individual into the dominant ideology through violence but rather interfered with the private sphere.30
The law works precisely this way: whereas individuals believe that the rules dictated by laws are the reality, Althusser teaches us that, as human constructs, they are actually merely “the imaginary relation to the real conditions of existence.”31 On the one
hand, the Tribunals, which are part of the SA, force citizens to follow the rules through repressive means such as fines or prison sentences. On the other however, the laws’ primary power is their ideological function: because members of society believe that laws are norm, the one and only way to organize society, they obey their rules.
To come back to the main topic, let us apply Althusser’s ideas to copyright law. Having a legislation to control the art market is nowadays seen as natural. Who would deny the artists’ social status and rights over their work today? And yet, for a long time artists were only recognized by society as artisans. Until the Renaissance, most works of art, whether paintings, literary texts, sculptures and so on, were anonymous. For instance, the author of the Chanson de Roland, one of the earliest examples of a literary text in French, still remains unknown today. The nine surviving manuscripts contain nine different versions, making it difficult to recognize the original text – if it exists at all. The social recognition of the artist through legislation has therefore influenced the concept of art as a whole.
Firstly, ownership of the work is challenged. Prior to the Statute of Anne, the publishers owned all rights to the books, and the writers were considered as mere employees.32 Afterwards, the situation shifted: the creative person became the right
holder, forcing the publisher to buy the rights. Similarly, the painters no longer depended solely on a patron to subsidise their works, but had the opportunity to sell their creations.
In parallel to the shift in the relations of production, technical innovations challenged existing preconceptions on art. German philosopher Walter Benjamin noted that with the introduction of photography, art works were not what we had thought. Art works could easily be reproduced and disseminated, like books after the invention of the
30 Louis Althusser, “Idéologie et Appareils Idéologiques d’Etat. (Notes pour une Recherche),” La
Pensée 151 (1970): 95-102.
31 Althusser, 77. 32 Barron (2006), 280.
press; they were no longer defined by their uniqueness.33 The mechanical means of
reproduction (photography, radio and especially cinema) substituted “a plurality of copies for a unique existence.”34 Culture was produced en masse for the masses; it was
an industry. With the democratization of culture, its commodification also came about. Marxist theories introduce the notion that economic forces are the primary motor behind changes in society. However although the relations of production explain the need for change, they do not justify why one alternative is favoured over another. As we saw earlier, two author’s rights systems were developed in parallel, the English Copyright and Related Rights and the French Droit d’Auteur. Although both systems tend to promote an art suitable for a market economy, substantial divergences exist among them regarding the concept of art and the artist. Marxist theories do not allow us to understand why such divergent doctrines exist in the different legal systems.
Instead, as British media law specialist Anne Barron points out, we should look at the work of cultural theorists. Building on Althusser’s work on ideology, academics in the 1980s studied how social discourses actively produced meaning, and, together, shaped our “reality.”35 Yet unlike Marxist theorists, who claim that economic forces
underpin ideology, cultural theorists favour the idea that culture predetermines discourses.36
Barron remains vague about the notion of culture. Culture is indeed a very complicated term, as Raymond Williams has pointed out, that can take on many meanings depending on the context and the utterer.37 The lack of clear definition in
Barron’s text thus becomes problematic, as it renders the term meaningless.
I will argue instead in this work that the law is a compromise between the different forces in society. Although legal texts are ratified in the current European political system by the Parliament, they are written in consultation with the different stakeholders, ranging from industry professionals and private companies to specialized lawyers and public institutions. The public sphere, which constitutes for Jurgen Habermas the foundations of democratic societies, also plays an essential role in the
33 Walter Benjamin, “The Work of Art at the Age of Mechanical Reproduction,” in Illuminations,
ed. Hannah Arendt (NY: Houghton Mifflin Harcourt, 1968), 221.
34 Benjamin, 222. 35 Barron (2004), 178. 36 Barron, (2004), 178.
37 Raymond Williams, Resources of Hope: Culture, Democracy, Socialism (London: Verso, 1989),
debate.38 Through their research, film theorists and historians look critically at concepts
that are too often overlooked or taken for granted, and subsequently disseminate them among the general public through lectures and essays. With the media, the intellectuals contribute to the formation of the public opinion.
In the following section, we will look at the formation of the legal discourse on cinema. The characteristics of the cinema as an artistic medium, a technology, and a commercial product made it difficult for lawmakers to fit it in one of the pre-existing legal categories of art - even its status as an art form was questioned.
38 Jurgen Habermas, The Structural Transformation of the Public Sphere: an Inquiry into a
Part II: Film Copyright – Object and Ownership
The Early Days
Although it seems natural now that films are copyrighted, this was not always the case. Cinema was at first not considered an art form. The first research that would lead to the cinematograph was indeed not carried out for artistic purposes. The medium was the result of years of research in the optical, engineering and scientific domains.39Consequently, when the cinematograph came about in the late 19th century, lawmakers
were at loss. They did not know how to categorize the new medium: was it a scientific tool or was it art? Could it be compared to photography? Was there an element of creativity in the filmmaking process? Cinema did not fit any pre-existing legal categories, as its existence had not been – could not have been – anticipated by the previous lawmakers, giving rise to many debates within the film and legal communities.40
Film scholar and film law specialist Peter Decherney described the early years of the legal battles led by American entrepreneurs pioneering in the film business. As no legislation governed the booming business yet, courts were used as battlegrounds by entrepreneurs to lay the foundations of a future legal framework. As Decherney explained, the economic war first took place at the technological level with inventors racing in the last decades of the 19th century to patent their invention:
“When new technology necessitates the development of a new recording medium, it generally takes time for the recording medium to appear independent from the technology. Needless to say, this further complicates judges’ decisions about whether a new media technology is truly new or not.”41
For instance, one of the first lawsuits concerning the cinematographic industry in the United States saw Thomas Edison, one of the first and most successful film moguls in the country, being sued for patent infringement by DW Griffith’s Biograph company (1901). It was only two years later that Howard Hayes, Edison’s principal lawyer,
39 Jussi Parikka, “Introduction: Cartographies of the Old and the New,” in What is Media
Archaeology? (Cambridge: Polity, 2012), 10.
40 Peter Decherney, “Copyright Dupes: Piracy and New Media in Edison v. Lubin (1903),” Film
History: An International Journal 19 (2007): 109.
included copyright in the Edison Trust’s legal arsenal. Edison’s court victory guaranteed the businessman a quasi-monopolistic situation over the cinematographic market, as most exhibitors were using his format. Pushed by economic interests, the film companies were thus among the first stakeholders to attempt to understand what the cinematograph was. Their first response was to define cinema and its predecessors, like the kinetoscope, as a new technology rather than a medium. However, as duping films became common in the film industry, success of the cinema-as-technology strategy proved limited for Edison. Hayes subsequently decided to rethink his approach to the cinematograph, trying to inscribe it within the artistic tradition.
Copyrighting films had been common practice in the United States since 1894 when Edison submitted Edison Kinetoscopic Record of a Sneeze to the Library of Congress. Yet as films were not included in the list of copyrighted material, the clip was deposited as a series of photographs. Hayes drew on the analogy between the cinema and photography, arguing that the former was a mere extension of the latter. Twice judges refused his argument for lacking to take the film experience into account. A year later, in 1904, another judgment found that to copyright the film experience, the deposit of a single photograph in the Library of Congress was sufficient to resume a whole work. The turn-arounds, from Hayes and the courts, highlighted the struggle to define film as a legal object. Cinema was at first not legally recognised as a medium on its own. The definition of the object of the law is central because it shapes the institutional discourse about this object, and therefore determine its use. As the Decherney example showed, the accent was first put on the cinematographic apparatus, waving a patent war, before being shifted onto the content. As a consequence, the medium shifted categories, from being an intellectual property issue to a copyright one – two legal fields with different purposes and philosophy.
An Ontological Question: What is cinema?
In 1926, two Belgian lawyers, Charles Havermans and Maurice Van der Moesen wrote a book dedicated to the question of cinema and the droit d’auteur. The lawyers approached the two main questions we continuously go back to: what is the object of the law and who is the rightholder of the film. In their work, the two lawyers underline theimportance of defining the cinematograph legally, in order to grasp the extent of the law and define the right owners.
By the time Havermans and Van de Moesen’s book was released, cinema had already obtained a legal status with the 1908 Berne Convention. The amended treaty did not protect cinematographic works per se, but guaranteed copyright protection for “photographic works and to works produced by a process analogous to photography.”42
This definition included cinematographic works, as the latter were at the time always recorded on film. Cinematographic works were however explicitly mentioned in article 14 of the Convention:
“Authors of literary, scientific or artistic works shall have the exclusive right of authorizing the reproduction and public representation of their works by cinematography.
Cinematograph productions shall be protected as literary or artistic works, if, by the arrangement of the acting form or the combinations of the incidents represented, the author has given the work a personal and original character.
Without prejudice to the rights of the author of the original work the reproduction by cinematography of a literary, scientific or artistic work shall be protected as an original work.
The above provisions apply to reproduction or production effected by any other process analogous to cinematography”43
Article 14 of the Berne Convention was concerned with the protection of original ideas across media. It had been pushed by the French and Dutch governments under pressure of dramatists and writers to act on the lack of regulation concerning the adaptation of their works to the screen. Film producers regularly based their screenplays on existing books or work plays, and no legal mechanisms forced them to obtain the author’s consent.44 Although it protects cinematograph productions, article
14 limits this category to adaptation, and does not take into account original works. It thereby creates a distinction between the different film genres.
Although it acknowledged the existence of the cinematograph, the Berne
42 Berne Convention, Berlin Act, 1908: Revised Berne Convention for the protection of Literary and
Artistic Works (Berlin: 1908), 1, last access Sept. 11th, 2015 -
http://keionline.org/sites/default/files/1908_Berne_Convention.pdf.
43 Berne Convention, 10. 44 Kamina, 19.
Convention actually created legal uncertainties. The text does not provide any clear definition of the cinematograph, instead classifying films according to their content: while article 14 emphasised the artistic character of film adaptations, article 3 created a separate category for other films, drawing on the photographic quality of the medium. This categorization had important legal consequences as films benefited from a different protection depending on the category they belonged to.
The Berne Convention’s failure to rule on the nature of cinema was reflected in national legislation.45 The British Copyright Act of 1911 for instance creates a similar
dichotomy, distinguishing between films as dramas and films as photographs. Article 35 (1) only recognises as dramatic work “any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character”46
Like the Berne Convention, the 1911 Act did not acknowledge the existence of cinema as a medium per se, and only granted protection to works analogous to previous artistic forms like drama. The Act prevailed in the United Kingdom until the 1956 Copyright Act, which marked a turning point in Copyright legislation because the “originality” of a work was no longer a criteria to define it as a cinematographic work.47
France saw a similar period of indecisions. In 1922, French lawyers E. Meignen & JJ Dumoret compiled a series of court decisions made before and after 1908, showing that debates concerning the nature of cinema continued to agitate the tribunals long after the Berne Convention had been signed. The different decisions show that until the 1920s, courts did not question the existing categories of art works recognised by the law; instead, they attempted to make cinematographic works fit into existing ones. Meignen and Dumoret underline three types of categories considered during trials: as drama, illustration, publication or theatrical performance.48
The focus of Meignen and Dumoret’s book on the cinematograph and the droit
d’auteur was concerned with the current legal framework within which the film industry
operates. The two lawyers analyse the consequences of legal texts for professionals and
45 Barron (2004), 194.
46 British Government, Copyright Act, 1911 (London: 1911), 1, last access Sept. 10th, 2015 -
http://www.legislation.gov.uk/ukpga/1911/46/pdfs/ukpga_19110046_en.pdf.
47 British Government, Copyright Act 1956 (London: 1956), last access Sept. 13th, 2015 -
http://www.legislation.gov.uk/ukpga/1956/74/contents/enacted.
the public who wish to show films. However, they do not challenge the existing legal categories of art works.
Havermans and Van der Moesen on the contrary attempt to conceptualise cinema as an artistic medium on its own, on an equal footing with the other arts. They define the cinematographic work as “une production de la pensée manifestée par les moyens d’expression propre à la cinématographie. ”49 For the two lawyers, the law failed
because it did not distinguish between the material aspect of cinema, and cinema as an artistic medium, as it did with the book and the novel. They criticised the distinction between films-as-dramas and films-as-photos consecrated in the 1908 Berne Convention for leaving non-dramatic cinematographic productions in a legal vacuum, and argued instead that all films had a unique character because of the decisions – position of the camera, mise-en-scène, framing… - prefiguring the shooting.50 Havermans
and Van der Moesen argue in the end that the art work exists outside of its material manifestation, the medium being a mere communication tool – contrasting sharply with the British law approach. For them, an artwork is first and foremost an idea, and it is the intellectual and creative work that should be legally protected rather than its end-result.
The two lawyers’ considerations are extremely interesting because they extended beyond the mere realm of the law. Their book reflect some of the major concerns of film theorists and artists at the time, exemplifying the bridges that actually exist between the two social spheres.
Cinema and the Avant-Garde
The French avant-garde proved to be particularly interested in cinema. Surrealists found in cinema a new medium ideal to convey their ideas. They made very few films that can be considered surrealist – with the notable exception of Un Chien Andalou (Luis Bunuel, 1929) – but nevertheless wrote a lot about films. Inspired by Sigmund Freud’s writings on dreams and human inner life, surrealists wished to reclaim the importance of the unconscious in shaping our selves in the hope to resist social conventions and the
49 Charles Havermans & Maurice Van der Moesen, Le Cinéma et le Droit d’Auteur, Namur :
Jacques Godenne, 1926), 13.
rationalism imposed by the Western bourgeois ideology.51 Anti-conformist, they found
that overturning the ideology would not be possible without reaching to the masses, thereby justifying their interest in cinema and popular entertainment. They were especially inspired by American slapstick comedy, such as Charlie Chaplin and Buster Keaton, described by the press of the time as a “primitive form of Surrealism.”52. The
dream sequence in Keaton’s Sherlock Jr (1924) shares many similarities with surrealist’s thinking by drawing an analogy between the cinema and our dreams.
As critics and intellectuals showed a growing interest in the cinema, its legitimacy as an independent medium began influencing the work of filmmakers and gaining ground within the society at large. French filmmaker Germaine Dulac was a fierce advocate for the development of a cinematic aesthetic independent from the other arts, going even further than Ricciotto Canudo’s “7th art” theory.
Dulac disagreed with Canudo’s idea that cinema was the total art by excellence, encompassing all the previous ones. She claimed that cinema stood apart from all previous forms of expression; it could not be an extension of photography because it had the ability to reproduce movement. The reproduction of movement, or rather illusion of it, she argued, constituted the essence of cinema: “l’art du cinéma est plus un art d’expression, de mouvements intérieurs qu’extérieurs… ”53 Dulac proved extremely
critical of the current film productions, deploring their reliance on theatre and literature. She advocated for a renewal of the cinematographic aesthetic based on movement, to create “symphonie visuelle faite d’images rythmées et que seule la sensation d‘un artiste coordonne et jette sur l’écran.”54 Although cinema was still mute,
the similarities between music and cinema were being recognized by avant-garde filmmakers from the 1920s who attempted to escape the linearity of the cinematographic language popularized by their American counterparts – such as D.W. Griffith – in the previous decade. A few years later, Walter Ruttman shot Berlin,
Symphonie of a City (DE, 1927) and Dziga Vertov shot The Man with a Movie Camera (RU,
1929). The two movies were eulogies of the modern city, trying to grasp its essence
51 Jean Goudal, “Surrealism and the Cinema,” in French Film Theory and Criticism, ed. Richard
Abel (Princeton: Princeton University Press, 1988), 354.
52 Time, “Film Review,” in French Film Theory and Criticism, ed. Richard Abel (Princeton:
Princeton University Press, 1988), 115.
53 Germaine Dulac, “Le Cinéma, Art des Nuances Spirituelles,” in Ecrits sur le Cinéma 1919-1937,
ed. Prosper Hillairet (Paris: Paris Expérimental, 1994), 52.
through the clash of images. For a whole group of filmmakers and film theoreticians, the dialectic of the montage constituted the essence of cinema.
The cinema-as-art discourse soon gained grounds outside of the avant-garde circles. The concept was defended, as we saw earlier, by lawyers themselves but also the general public who was beginning to appreciate the medium for its cultural value.
Films had a very short life span, as reels were destroyed or reused after their exhibition period. Old films were no longer available once they were withdrawn from the market. In 1927, a survey from the magazine Les Cahiers de la République des Lettres, des Sciences et des Arts (1927, pp. 80-94) revealed a growing sense of irremediable loss among the general public. A reader explained that “cinema is becoming so important that it is necessary to act while there is still time; if we wait longer, it will be too late to save a heritage whose disappearance our grand-nephews will regret.” (René Brunschwig, p. 81)55 This impression was shared by critics and
intellectuals of the time, who advocated for concrete measures to be taken. Germaine Dulac claimed that
“a library of films is necessary to document history for the future,
as well as to keep intact the thoughts and endeavours of the first filmmakers. Cinema is an emerging art, an art that has of course no contact with the other arts, and to whom we owe to keep all its steps before its full blossoming.”56
She called, along with other intellectuals of her time, for the foundation of an institution that would preserve and make available films to future generations. Such institution would not, in her mind, value films exclusively for their historical interest, but also for their aesthetic significance.57 For the first time came about the idea of
archiving films as an artistic medium with its own value.
55 Georges Brunin Guardia, “Une Bibliothèque du Film ? Enquête menée par René Brunschwik,
Bibliothèques," Les Cahiers de la République des Lettres, des Sciences et des Arts (1927) : 81.
56 Dulac quoted in Georges Brunin Guardia, “Une Bibliothèque du Film ? Enquête menée par
René Brunschwik, Bibliothèques," Les Cahiers de la République des Lettres, des Sciences et des Arts (1927) : 83.
But who owns the rights?
Since the spread of humanist ideas during the Renaissance, Western philosophers had developed the idea that a strong link existed between the artists and their works, the latter being the expression of their inner selves.58 The growing success in themodern notion of authorship paralleled the advent of capitalism in European society where individual merit was rewarded over birth and status quo. As an art, cinema ought to have an author.
Unlike most arts, including literature, painting, sculpture, photographs, and so on, cinema is always a collective work. Depending on the budget and the type of production – studio or independent film for instance - the screenwriter and the filmmaker can be the same person or a team; the actors, technicians, and other creative persons will have more or less latitude to work; and the producer will be to a certain extent involved in the creative process. In these conditions, finding the real author(s) proved difficult, and no consensus has yet been reached.
As Marjut Salokannel points out, the author of a film works as a “unifying element between different social practices.”59 The meaning of author for a film depends thus on
the way one understands cinema. The cinema-as-art discourse, favoured by the Droit
d’Auteur, links the notion of author to the creative people, the workers whose
personality can be detected on screen. The cinema-as-commodity approach, which is enshrined in the Copyright system, will take into account the contribution of the producer and other economic agents. In reality however, the division between Copyright and Droit d’Auteur is less clear-cut due to the production system. As cinema grows into an industry, a certain parallel evolution in time can be observed across Europe regarding the notion of the film author.
The film producer was often considered as the sole author in the early days of cinema. As Marjut Salokannel underlines, cinema was not produced at an industrial level. The division of labour was not clear-cut like in the Fordian production-lines, and one individual could play several functions. Films were similar to artisanal products.60
58 Pam Cook, ‘Authorship and Cinema’, in The Cinema Book, eds. Pam Cook and Mieke Bernink
(London: BFI, 1999), 235.
59 Marjut Salokannel, “Cinema in Search of its Authors: on the Notion of Film Authorship in Legal
Discourse,” in Film and Authorship, ed. Virginia Wright Wexman (New Brunswick: Rutgers University Press, 2003), 170.
A similar approach was taken by Anglo-Saxon countries. As we saw earlier, copyright legislation is based on the idea that because art works are the product of the artist’s labour, they obey, like manufactured goods, to the capitalist logic: the owner of the means of production is the owner of the product, while the worker is only entitled to a wage. Translated to the cinematic industry, the copyright doctrine favoured the investor, i.e. the producer. Films-as-photographs were considered to be the property of the owner of the negative, whether the client or the author, while films-as-dramas were the property of the author except if the latter was employed. In this case, the rights belonged to the employer.61 The British 1956 Act confirmed a balance in favour of the producer. It stipulated that the “maker” of the film, which was defined as “the person by whom the arrangements necessary for the making of the film are undertaken,” was entitled to the rights. For the act, the managerial aspect of filmmaking prevails, to the detriment of other factors such as originality or personality.
The competing system of the French droit d’auteur and its neighbouring rights tends to favour on the contrary the link between the creator and his work. The French legislation distinguishes between two types of works with multiple authors. Collective works are commissioned by a single person or entity who is also responsible for its diffusion, and the contribution of the individual authors cannot be distinguished, as in the case of an encyclopaedia or dictionary. The oeuvres de collaboration on the other hand are made of distinguishable parts, each evidently produced by one author. Courts struggled to attribute films to either of the categories. At first, judges tended to define films as collective works and give the rights to the producer but the situation was overturned at the end of World War II, when films started being considered as oeuvres
de collaboration.62
The status of films as oeuvres de collaboration was consolidated by the Droit
d’Auteur Act of 1957. Article 14 stipulated that cinematographic works were the
co-property of its authors, the latter consisting of the screenwriter, the adaptor, the dialogue writer, the music composer, the filmmaker, and, if applicable, the author of the original work. Each author could exploit independently his own work provided that it did not infringe on the nature of the collective work or the other contributions (art. 15). The new law however did not include the producer as one of the authors, unless his contribution fit one of the aforementioned role (art.17). Instead, he is linked to the
61 Kamina, 27. 62 Kamina, 25.
authors by a contract delegating the exploitation rights to him – the moral rights remaining the exclusive rights of the authors.63
The “humanist” approach of the French Droit d’Auteur has been favoured by European legislators, and the 1993 Directive harmonizing the term of protection of copyright and certain related rights stipulates that all European countries must now accept the filmmaker as an author of the film.64 Although the directive was not fully implemented by the Member States, and substantial divergences remain concerning the authors and right duration, all countries, included those using the Copyright system, have adopted the filmmaker as one of the authors of the film.
Dissemination of the idea of the author
As we saw at the very beginning of this chapter, the French film critiques of the 1950s gathered at the Cinémathèque to watch the American films that had been banned during World War II. The comparison they could draw from these screenings with the French productions of the time inspired them to write dithyrambic essays on American films, and more critical ones on their French counterparts. In 1954, François Truffaut wrote “A certain Tendency of French Cinema.” In this pamphlet, the critic attacked frontally what he named the “Tradition of Quality” that had made the reputation of French cinema for favouring literary figures, such as Pierre Bost and Jean Aurenche, over the hommes de cinéma.65 Often seen as the founding text for the auteur theory, Truffaut’s article actually bears resemblance with Germaine Dulac’s writings. Just like Dulac, Truffaut called for a new and pure cinematographic aesthetic that no longer depended on previous artistic and literary expressions, an aesthetic that existed on its own, and demanded a clear politique des auteurs where the metteur-en-scène, or filmmaker, was the real author. He put his theories into practice in his films, which,
63 French Government, “Loi n° 57-298 d 11 Mars 1957 sur la Propriété Littéraire et Artistique,”
Journal Officiel de la République Française (1957), last access Sept. 20th, 2015 -
http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=19570314&pageD ebut=02723&pageFin=02730&pageCourante=02724.
64 European Council, Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection
of copyright and certain related rights, (Brussels, 1993), last access Sept. 10th, 2015 -
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31993L0098:EN:HTML.
65 François Truffaut, “A certain tendency of the French Cinema,” in Auteurs and authorship: a film
along with those of his colleagues at the Cahiers du Cinéma, helped popularise the author theory worldwide.
The American critics were especially receptive of the author theory although the studio-based model of the American industry did not presuppose such success. In his notes on the Auteur Theory, American film critic Andrew Sarris classified authors according to three circles fitted into each other. The outer circle would include filmmakers that are also good technicians, the middle circle those with a personal style, and the inner circle those who displayed an interior meaning, or “élan of the soul,” in their films.66 Sarris’ classification model was extremely debated among critics and helped disseminate Truffaut’s and the Cahiers du Cinéma’s writings overseas.
66 Andrew Sarris, ‘Notes on the Auteur Theory in 1962’, in Film Theory and Criticism:
Introductory Readings, ed. Leo Braudy and Marshall Cohen, (Oxford: Oxford University Press, 1999), 516.
