Commercial breaks in films violate directors’ moral rights

The Supreme Court recently ruled that commercial breaks in films violate directors’ moral rights in those films. Although similar judgments have been rendered previously by lower courts in other EU member states, this is thought to be the first judgment of its kind to be rendered by the high court of an EU member state (TV 4 Aktiebolag v Estate of Vilgot Sjöman and Claes Eriksson (T2117-06)).

The plaintiffs, two directors, entered into director agreements with film companies Sandrews and SF, which in turn licensed the right to broadcast the films to TV4, the largest Swedish commercial TV network. The plaintiffs brought an action for damages against TV4 on the grounds that the respondent had infringed the directors’ moral rights by showing the films on a commercial, advertising-financed television channel and by inserting commercial breaks in the films.

TV4 argued that its broadcasting of the films had not constituted a violation of the directors’ moral rights, and claimed that the directors had waived their moral rights in relation to the broadcasts at issue.

The Supreme Court initially established that inserting commercial breaks in a film changes the film since the inclusion of advertisements breaks up the film, preventing the viewer from viewing it in a continuous manner. Furthermore, the changes made by adding the commercial breaks were deemed to violate the directors’ moral rights by affecting their individuality, since the rhythm of the films was disturbed. The Supreme Court also found that the directors had not waived their respective moral rights in this respect.

Thus, the Supreme Court sided with the plaintiffs and ordered TV4 to pay damages.

This is thought to be the first time that the potential conflict between moral rights and commercial breaks in films or television programmes has been considered by a high court in any EU member state. Therefore, the judgment is of great interest to many market players in the media sector at both national and international level.

The primary effect of this judgment is that in future, television channels broadcasting in Sweden will have to request clear representation from film companies that all rights holders have given their consent to the addition of advertisement breaks to television broadcasts of their works.

However, in its ruling the district court made statements in regard to imposing limitations on waivers of moral rights in relation to the insertion of commercial breaks into films, which were later confirmed by both the Court of Appeal and the Supreme Court. The district court implied that even if the directors had given their consent to commercial breaks, any general waiver for commercial breaks would have been too broad to fall within the limited scope permitted by law. Thus, in order for consent to commercial breaks in a film to have legal effect, it may be that the basis for such consent must be specified. Factors such as naming the specific channel on which the film will be broadcasted, as well as the number and nature of commercials allowed in a film, may need to be specifically regulated.

Since director agreements are always entered into long before the details of commercial breaks are decided, in practice it would be impossible to abide by such limitations. Therefore, clarification is needed in relation to the findings made by the district court, and supported by the higher courts, regarding the limitations for legally relevant waivers of moral rights in relation to commercial breaks in films.

This is an Insight article, written by a selected partner as part of IAM's co-published content. Read more on Insight

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