Typically, more than one person contributes to the creation of a film. It is clear that not everyone involved will be a (co-)creator of the final film work in the copyright sense. Co-authorship requires an individual creative contribution that cannot be separately exploited from the film work, as well as a mutual intention of the authors to collaborate and subordinate themselves to the overall idea.
Continuing from the introduction "Film Sound and Copyright," the following section delves deeper into the copyright issues related to film sound.
It is undisputed - recognized in both jurisprudence and academia - that the co-authors of a film work typically include the director, the cinematographer, the film editor, and the costume and set designers.
Notably, these professions are primarily engaged with the visual aspects of the film. Of course, a film thrives on its visual dimension; the audience is focused on the image. However, this perspective is too narrow: the era of ´silent movies´ has been over since the late 1920s. Without the equally important acoustic layer, the visual would lose much of its impact and effectiveness - the audience sees and feels what they hear. The sound in film has the power to guide the viewers' emotions and associations within each scene.
While the other filmmakers create a visual image and their own world of images, the film sound creators craft a sound image and their own sound world.
The complexity and significance of film sound are also reflected in the diversity and roles of various film sound professions. The sound track is a collaboration among several (film) sound creators: it starts with the production sound mixer, who acoustically captures the action on set. This continues in post-production with the sound designer, dialogue editor, the team of sound effects creators and sound effects mixer, the Foley and FX editor, as well as the ADR sound mixer and ADR editor, who generate and/or edit the individual sound elements - dialogue, sounds, atmospheres, effects, and music. The lead sound designer dramaturgically integrates all these results, and the re-recording mixer adds the final dramatic touches, shaping the overall sound from film sound design and film music, thereby creating the final film sound track.
Are film sound creators typically considered co-authors of the film work? Do they provide their own creative contribution in the sense of copyright law?
The starting point is the definition of film sound: "Works of film sound are all personal intellectual creations that use sounds (tones, noises) as a means of expression to create authentic or artificial sound images for moving images.
The established criteria developed by jurisprudence and literature for a "personal intellectual creation" must therefore be fulfilled.
- Personal Creation: There must be a human creative activity. This is unproblematic when considering film sound creators.
- Intellectual Content: Furthermore, the human spirit must be expressed. This is also the case: the film sound is consciously crafted and is not merely a mechanically produced random product. The sounds (tones, noises) are deliberately used to create a sequence of sounds or a sound image. By comparison, in works of music, the "intellectual content" is found in the auditory sequence that can be perceived through hearing. Although the film sound creator uses technical aids, like other filmmakers, these tools do not operate independently and without guidance.
- Form Design: The perception must be accessible through human senses. The work product of film sound creators, the film sound/soundtrack, is perceivable through human senses (including hearing).
A central criterion of the copyright work concept is individuality. There must be a personal creation of individual expressive power, meaning the result of individual intellectual effort. Individuality can exist in varying degrees of intensity. This qualitative element is described by the term "design quality." This design quality, which varies depending on the type of work, must be achieved to consider something a work in the copyright sense. The more creative freedom the creator has, the more likely the necessary design quality is reached.
When determining whether it is a copyright-protected work, the key question often remains - as it does here: Is it merely a purely craft-based, routine performance, or does the work of the film sound creator sufficiently reveal the individual spirit of an artist?
Undoubtedly, film sound professions have a craft component that requires technical expertise. However, this is not indicative of a routine, everyday performance - in fact, just the opposite: it is precisely through the craft and technical skills that the film sound creator earns the ticket to create various, individual works (sound worlds) that stand out from others, thus achieving the necessary design quality of a creative contribution. There is considerable room for personal creative elements.
The art lies in listening, specifically in evaluative listening:
What do I want to hear? - What should I hear? - How should I hear it?
The creation of an aesthetic sound concept - a sound world - is the result of individual intellectual effort that goes far beyond technical necessities.
This will be exemplified through the roles of the production sound mixer, the sound designer, and the sound effects mixer/sound effects creator. In a second article, the roles of film sound creators such as the re-recording mixer, dialogue editor, Foley editor, and FX editor will be presented from a copyright perspective.
Production Sound Mixer
The production sound mixer acoustically captures the action on set, with a particular focus on dialogue. Additionally, prior to filming - during location scouting - the production sound mixer provides the director with insights regarding the acoustic suitability of the locations. For these tasks, the production sound mixer brings artistic and creative skills: they have a keen sense of the overall mood of the scene, immediately grasp the visual content and dramatic function of a shot, and use sound design tools accordingly. Depending on how they want to represent the scene and atmosphere, they choose and position the appropriate microphones. While they use technical tools, these are employed to create a sound world. They enjoy significant decision-making freedom: the director or cinematographer usually lack the technical knowledge, or at least the experience, to provide the production sound mixer with precise instructions regarding their work - namely, the creation of a sound world. The production sound mixer expresses their individuality in the film work by developing an initial aesthetic sound concept (e.g., What aesthetic should the recording have? What genre should the recording belong to?) and thus acts creatively in the copyright sense.
Sound Effects Creator/Sound Effects Mixer
The role of the sound effects creator is inherently an artistic film sound profession, as they create or replicate sound events entirely from scratch. The sounds/noises they originate for a specific film give the film a sense of organic authenticity and sensuality. It is only through the sounds created by the sound effects creator - through their individual activity and creativity - that the viewer experiences the illusion of a lived reality or even hyperreality, especially when things or phenomena make sounds that have no counterpart in reality (e.g., a sunbeam).
The sound effects mixer records the sound products of the sound effects creator according to the dramatic requirements of the film work - requirements that do not necessarily have to be dictated by the visuals or the screenplay, and thus can be entirely at the discretion of the sound effects mixer / sound effects creator.
The sound effects mixer shapes the sound and its effects as part of an individual creative effort. They amplify or diminish cinematic statements and make feelings perceptible through the use of sounds.
For sound shaping, the sound effects mixer also employs technical tools; they use them to further develop the sound world through techniques such as microphone placement, filtering, and dynamics processing. Together with the sound effects creator, they decide on the type, duration, frequency, and intensity of the sounds and are not bound by exact specifications from the director. They thus have considerable creative freedom, which they adequately fill with their individuality.
Sound Designer
The sound designer recreates, exaggerates, or reshapes the sound reality during post-production. They craft atmospheres and add sound effects. Non-human agents, such as vehicles or furniture, acquire their desired emotional character through sound design. The sound designer defines and opens up the time and space in which the film’s action takes place, guiding the viewers’ feelings and associations: Where are we? What mood is unfolding here? Peaceful or threatening? To this end, the sound designer develops a comprehensive final sound concept, an acoustic scenography, thus significantly shaping the sound level and the film overall in a dramaturgically critical way.
Conclusion:
The film sound creators exemplified here each fulfill the criteria for a "personal intellectual creation" in the sense of copyright law within their respective fields. They operate sufficiently individually, thereby meeting the requirements of personal intellectual creation.
The additional prerequisites for co-authorship are also met: They have the will to collaborate with the other co-authors in shaping the film work and subordinate themselves to the overall idea. They provide the acoustic counterpart to the filmmakers primarily concerned with the visual aspects, such as the cinematographer, film editors, and costume and set designers. For these reasons, film sound creators are regularly considered co-authors of the film work.
During negotiations for the "Supplementary Collective Agreement on Revenue Sharing for Feature Films" between ver.di/BFFS and the Alliance of German Producers, which regulates the "appropriate remuneration" of film authors in accordance with §32 of the Copyright Act, this was recognized by the negotiating partners at the end of 2013. Initially, production sound mixers, sound designers, FX editors, sound effects creators, sound effects mixers, and re-recording mixers were included as regularly participating copyright-active filmmakers.
The author further advocates for a holistic approach to film sound, meaning: Film sound = work. The sound of the film as a whole is a work in the sense of copyright provisions. All film sound creators significantly involved in this work are therefore to be regarded as authors. More on this in a forthcoming article.
