United States of America
Russian Federation
Copyright and Related Rights
4. Article 1240 (IP/N/1/RUS/O/2 at 363): We are concerned that this provision could nullify negotiated terms by authors of underlying works. For example, if a musical composition is used in a movie – either a pre-existing recording or one created for the movie – the author of the composition often maintains some rights, such as the right of public performance. Can a composer's contract require that a film incorporating her music only be shown in theaters/transmitted by broadcasters that are licensed to publicly perform musical compositions or would 1240(2) nullify such a contract?
A film (audiovisual work) is an independent complex object of author rights (Civil Code of the Russian Federation, Article 1259). According to paragraph 1 of Article 1240 of the CC RF a person who has organized the creation of a complex object including several protected results of intellectual activity (e.g. the film) shall obtain the right of use of these films on the basis of contracts (for the alienation of the exclusive right or license contracts) concluded with the rightholders on the respective results of intellectual activity, which had been used in the process of creation of the film. Herewith License Contract about granting right to use (e.g. a music in the film) recognized be invalid in case if such contract contains limiting to use music in the film. Specified positions of the Civil Code of the Russian Federation correspond to positions of subparagraph (b) of paragraph 2 of Article 14 bis of the Berne Convention for the Protection of Literary and Artistic Works from 9th September 1886 (farther Berne Convention) which establishes that in the countries of Berne Union where legislation recognize authors as primary possessor of copyrights about author's cinematographic work who brought creative contribution in creation of this work; if they pledged to bring creative contribution in creation of cinematographic work and they have not some restrictive or special conditions, these authors may not prevent to use cinematographic work for reproduction, spreading, public presentation and performance, report along wires for general information, broadcast on the air or another public report the work, and also forbid a subtitling and a duplication text of cinematographic work. Thereby author of music may conclude with a person who has organized the creation of a complex object License Contract about the use of his musical work in complex object, e.g. in the film, or contract for the alienation the exclusive right by created musical work. In case when concluding License Contract with author of musical work are used in the film, author of music grant to producer of film right to use his musical work in the film in all methods of use the film including public performance (in case of use in cinema, for example), communication over the air or by the cable. Moreover in accordance with paragraph 5 of Article 1263 of the CC RF composer shall keep the exclusive right to his work and may use his work in any method not prohibited by law, if he hadn't transfer exclusive right to his work to the preparer in full. The procedure of Conclusion a Contract for the alienation the exclusive rights of the musical work is use when a musical work is created spatially for being included in audiovisual work.