Civil Law vs Common Law Copyright in Film Production: A Comparative Guide for International Producers

The legal protection of film and audiovisual works rests on two fundamentally different traditions: the civil law tradition of droit d’auteur (author’s rights), prevalent in continental Europe including Italy, France, Germany, Spain, and most of Latin America; and the common law tradition of copyright, prevalent in the United States, the United Kingdom, Canada (mixed), Australia, and most of the Commonwealth. The two systems share certain foundational principles — exclusive rights, automatic protection, territorial scope — but diverge significantly in their treatment of moral rights, work-for-hire, authorship attribution, and the contractual transfer of rights.

For international film and television producers, the divergence has direct practical consequences. A clause that is enforceable in a Hollywood contract may be void in an Italian or French production agreement. A waiver of moral rights that closes the matter in California may not survive judicial scrutiny in Rome or Paris. Understanding when, why, and how the two systems diverge is essential for structuring international productions, co-productions, talent agreements, and distribution deals.

This guide compares the civil law and common law approaches to copyright in film production, with attention to the practical implications for Italian, European, and international productions, the famous Huston colorization case as a leading example, and the contractual drafting strategies that work across both systems. It is written for international film producers, directors, performers, distributors, broadcasters, music supervisors, and lawyers handling cross-jurisdictional productions involving Italian or European rights. For broader cluster context, see our guide to copyrightable elements in film and chain of title.

The two legal traditions

The two traditions developed from different philosophical foundations:

The civil law tradition of droit d’auteur (author’s rights) is rooted in the natural rights philosophy of the eighteenth and nineteenth centuries, particularly in post-revolutionary France. It treats the author as having a fundamental personal connection to the work — a connection that survives any economic transfer and that cannot be extinguished by contract. The author is, in a sense, present in the work permanently. This philosophical foundation generates the inalienable moral rights characteristic of civil law copyright systems.

The common law tradition of copyright developed from the 1709 Statute of Anne in England, with an explicit economic and utilitarian rationale: copyright as a state-granted monopoly to incentivise the creation and dissemination of works. The author’s interest is principally economic; the work is a commodity that can be fully transferred, including to corporate authors under work-for-hire doctrines. Moral rights, in this tradition, are either narrowly limited or not recognised at all.

Both systems coexist within the global framework of the Berne Convention (since 1886, with major revisions in 1908, 1928, 1948, 1967, and 1971), but they apply the Berne principles through different national approaches.

The Berne Convention as common foundation

The Berne Convention for the Protection of Literary and Artistic Works establishes minimum standards of copyright protection that all signatory states must respect. Importantly, Article 6bis of the Convention requires signatories to recognise moral rights — at minimum, the right of paternity (attribution) and the right of integrity (objection to derogatory modifications).

The Convention has been signed by virtually all major countries, including the United States (since 1989), the United Kingdom (founding signatory), Italy (founding signatory), and most other film-producing nations. However, implementation varies significantly:

• civil law countries typically implement Berne Article 6bis through inalienable moral rights regimes — moral rights cannot be waived or transferred;
• common law countries typically implement through more limited frameworks — moral rights may be waivable, may be limited to specific categories of work, may rely on other legal frameworks (defamation, unfair competition) rather than explicit moral rights statutes.

This common foundation with divergent implementation is the structural reason for the practical differences that arise in international productions.

Shared principles across both systems

Before exploring the divergences, it is useful to identify the principles that both systems share:

• Exclusivity: authors or rights holders have the right to authorise or prohibit certain uses of the copyrighted work by third parties;
• No formalities for establishment: copyright arises automatically from creation, without need for registration or other formalities (Berne Article 5);
• Contractual freedom: authors or rights holders can define the terms under which they grant exploitation rights;
• Remuneration: the foundational rationale is to compensate authors for their creative effort;
• Territoriality: copyright is territorial, with the author or rights holder deciding the geographic scope of each licence;
• Enforcement: rights holders can enforce their rights against unauthorised use;
• Duration: under the Berne framework, copyright lasts at least 50 years post-mortem auctoris, with most jurisdictions extending to 70 years (life of author plus 70 years across the EU, harmonised by Directive 2006/116/EC).

Moral rights: the central divergence

Moral rights — the rights of the author over the integrity and identification of the work, distinct from economic rights — are the principal axis of divergence between civil law and common law systems. The principal moral rights are:

• Right of paternity (attribution): the right of the author to be identified as the author of the work;
• Right of integrity: the right of the author to object to modifications, mutilations, or alterations that distort the work or prejudice the author’s honour or reputation;
• Right of disclosure (divulgation): the right of the author to determine when and how the work is first made public;
• Right of withdrawal: in some civil law jurisdictions, the right of the author to withdraw the work from circulation in specific circumstances.

Moral rights in civil law jurisdictions

In civil law jurisdictions, moral rights are typically:

• Inalienable: the author cannot transfer them, even by express contract;
• Unwaivable: contractual waivers are void or have limited effect;
• Perpetual: in many jurisdictions (Italy, France), moral rights last indefinitely, surviving even after the economic rights have expired and entered the public domain;
• Heritable: at the author’s death, heirs typically inherit the right to enforce moral rights;
• Enforceable through specific procedures: civil law jurisdictions provide explicit statutory mechanisms for moral rights enforcement.

In Italy, moral rights are governed by Articles 20-24 of Law no. 633/1941 (the Italian Copyright Act) and are inalienable. In France, moral rights are codified in the Code de la Propriété Intellectuelle and are also inalienable and perpetual. Germany, Spain, Belgium, the Netherlands, and most other European civil law countries have similar regimes.

Moral rights in common law jurisdictions

In common law jurisdictions, moral rights are typically:

• Waivable: in some jurisdictions, explicit contractual waivers extinguish moral rights;
• Limited in scope: in the United States, federal moral rights are limited to “works of visual art” under the Visual Artists Rights Act (VARA, 17 U.S.C. § 106A); other works rely on state law mechanisms (right of publicity, unfair competition, defamation);
• Time-limited: in the UK, moral rights generally last for the same period as economic rights, not perpetually;
• Subject to assertion: in the UK, the paternity right must be expressly asserted by the author to be enforceable;
• Less procedurally robust: enforcement often relies on adjacent legal frameworks rather than dedicated moral rights procedures.

The United States approach is particularly restrictive. The US copyright statute (17 U.S.C.) does not recognise moral rights for audiovisual works. Authors who wish to preserve attribution and integrity rights in the US must rely on contractual provisions and on adjacent legal frameworks (Lanham Act for false attribution, state defamation law, right of publicity).

The United Kingdom approach, under the Copyright, Designs and Patents Act 1988 (Articles 77-89), provides for moral rights but allows them to be waived. The script writer, director, cinematographer, lyricist, composer and other authors of a film have moral rights, but these can be waived by signed agreement.

The Huston case: a leading comparative example

The most famous illustration of the practical divergence between civil law and common law moral rights regimes is the Huston colorization case. John Huston’s 1950 film noir “The Asphalt Jungle” was colorized in the 1980s by Turner Entertainment for television distribution. Huston, before his death in 1987, and his heirs after his death, vigorously objected to the colorization on the grounds that it violated the artistic integrity of the original black-and-white film.

The case was litigated in both the United States and France:

• In the United States: the Huston heirs lost their claim. US law, at the time, recognised no enforceable moral right of integrity for cinematographic works that would prevent the colorization. Turner’s contractual rights as copyright owner authorised the modification;
• In France: the same colorized version was challenged when broadcasters attempted to distribute it. The French Cour de Cassation (Supreme Court), in its landmark decision of 28 May 1991 (Consorts Huston et autres c. Société Turner Entertainment Co. et autres), held that the colorization constituted a clear breach of Huston’s moral right of integrity. The court applied French moral rights law to the matter, holding that the rights were inalienable and survived any US contractual arrangement to the contrary.

The Huston case crystallises the practical consequences of the civil law / common law divergence. The same modification of the same film, performed by the same contractual rights holder, was lawful in the United States and unlawful in France. For international productions distributing across both systems, this divergence is unavoidable and requires careful contractual and operational planning.

The Huston principle continues to govern French and broader civil law jurisprudence on integrity rights in film. Italian courts apply similar principles under Articles 20-22 of the Italian Copyright Act, with the inalienable moral right of integrity prevailing over US-style contractual transfer.

Authorship of film: who is the author?

The question of authorship — who is the legal author of a film, and therefore who holds the original copyright — is treated differently across jurisdictions:

Italian and broader European civil law approach

Italian Copyright Act Article 44 recognises the audiovisual work as having three co-authors:

• the author of the subject and screenplay;
• the composer of music specifically composed for the work;
• the director.

Economic rights are transferred to the producer by contract (Article 45). Moral rights remain inalienable with each co-author. Similar approaches apply in France (Article L. 113-7 Code de la Propriété Intellectuelle, identifying the same co-authors plus the author of dialogue and the author of pre-existing works adapted), Germany (where the director, screenwriter, composer, and other authors are co-authors), and most other civil law jurisdictions.

United States approach

In the United States, films are typically deemed “works made for hire” under 17 U.S.C. § 101. The producer (or production company) is the legal author for copyright purposes, with the actual creators (director, screenwriter, composer) considered employees or contractors whose contributions are absorbed into the producer’s authorship. This US approach is fundamentally incompatible with the civil law approach in the cases that matter: an American film distributed in Italy carries the moral rights of its actual creators under Italian law, regardless of the US legal fiction of producer authorship.

United Kingdom approach

Under the UK Copyright, Designs and Patents Act 1988, the principal author of a film is the producer and the principal director (jointly). Other contributors (screenwriter, composer) are not co-authors of the film itself but hold copyright in their underlying contributions. This UK approach sits between the US work-for-hire and the continental co-authorship models.

For international productions, the choice of law and the practical recognition of authorship across jurisdictions becomes a contractual and operational matter that must be planned in advance.

Work for hire and its limits in civil law

The US “work for hire” doctrine (17 U.S.C. § 101) treats specifically commissioned works as if the commissioner were the original author, with no underlying rights remaining with the actual creator. For films and other audiovisual works, this doctrine is foundational to US production practice and contracts.

Under Italian law, the US work-for-hire structure does not translate directly:

• the actual creators (screenwriter, composer, director) remain authors for copyright purposes;
• economic rights can be transferred by contract — but transfer must be express, must specify rights, and must not violate inalienable elements;
• moral rights remain with the creators regardless of any contractual language;
• provisions of the DSM Directive (2019/790, transposed into Italian law by D.Lgs. 177/2021) — particularly Article 22-bis (contract adjustment for disproportionate remuneration) and Article 22-ter (revocation for non-exploitation) — provide creators with additional inalienable rights.

For international productions where US contractual templates are imported into Italian or European production agreements, careful adaptation is essential. Standard US work-for-hire language is generally:

• Effective for economic rights transfer when properly structured as express assignment under Italian law;
• Ineffective for moral rights waivers — these provisions are simply void under Italian law;
• Subject to DSM constraints — provisions on fair remuneration, contract adjustment, and revocation cannot be excluded;
• Subject to penalty clause review — Italian Civil Code Article 1384 authorises judicial reduction of disproportionate penalty clauses.

Director’s rights across jurisdictions

The director occupies different positions across the jurisdictions:

• United States: under work-for-hire structures, the director is typically a contractor whose contribution is absorbed into the producer’s authorship. The director retains no underlying authorship of the film, only contractual rights from the director agreement. Final cut provisions are negotiable but not the default;
• United Kingdom: the director is recognised as a joint author of the film alongside the producer (CDPA 1988). The director has moral rights, but these can be waived by signed agreement;
• Italy and France: the director is a co-author with inalienable moral rights. Final cut, in the strongest civil law form, is structured as a moral right of integrity. The director can object to material modifications that prejudice the integrity of the work. Under DSM transposition (D.Lgs. 177/2021 in Italy), the director also has rights to fair remuneration, contract adjustment, and revocation;
• Germany: similar to Italy/France, with the director as co-author and strong moral rights protections, including a robust integrity right.

For international productions, director agreements should be drafted to function across the relevant jurisdictions. Final cut provisions, modification approval rights, credit obligations, and post-release control should be structured to comply with civil law moral rights frameworks while preserving US-style production flexibility.

Performer and image rights divergence

Performer rights also diverge significantly:

• Civil law jurisdictions: performers have inalienable moral rights (Article 80 ff. of the Italian Copyright Act) and substantial neighbouring rights to compensation for public communication of their performances (administered through NUOVO IMAIE in Italy);
• United States: performer rights derive primarily from union and guild agreements (SAG-AFTRA), state right-of-publicity laws (which vary significantly by state), and contractual provisions. Federal copyright law provides limited protection for performances embodied in audiovisual works;
• United Kingdom: performers have neighbouring rights under the CDPA 1988, with provisions for both moral and economic rights, generally aligned with EU standards (though post-Brexit divergence is possible);
• Image and publicity rights: civil law jurisdictions typically embed image rights in personality rights protected by the civil code (Article 10 of the Italian Civil Code). US state law provides right-of-publicity protection that varies significantly by state, with California, New York, and Tennessee providing strong protection and other states minimal.

For international productions involving performers active in multiple jurisdictions, performer agreements should address rights, image, likeness, and publicity comprehensively across all relevant frameworks.

Contractual drafting strategies for international productions

For productions that cross civil law and common law boundaries, several contractual strategies have emerged in modern practice:

Choice of law

The contract should expressly designate the applicable law, with awareness that:

• Italian and EU mandatory rules on moral rights, fair remuneration, and contract adjustment apply regardless of choice of law for Italian-resident creators or Italian-source work;
• foreign choice of law clauses are not effective to extinguish inalienable rights under Italian law;
• Brussels I bis Regulation (Regulation EU 1215/2012) and Rome I Regulation (Regulation EC 593/2008) govern cross-border contractual disputes within the EU.

Modular contract architecture

Modern international productions often use modular contracts with:

• express economic rights assignment language compatible with both civil and common law;
• limitation and non-exercise clauses for moral rights (rather than waivers, which are void in civil law);
• specific approval mechanisms for modifications, calibrated to civil law moral rights expectations;
• jurisdiction-specific schedules addressing local mandatory rules;
• DSM compliance acknowledgments for EU productions.

Dual-language and dual-jurisdiction drafting

For productions involving Italian and US/UK parties, dual-language contracts (English and Italian) with consistent legal effect across jurisdictions are best practice. Each language version should be drafted to function under its respective legal system without internal inconsistencies.

Specific clause approaches

• Moral rights: in civil law, use limitation and non-exercise clauses; in common law, express waiver where permitted;
• Final cut: structured as approval mechanism in civil law; as negotiable contractual right in common law;
• Credit obligations: detailed specifications that satisfy paternity rights across jurisdictions;
• Modifications: prior consent procedures for material modifications;
• DSM compliance: acknowledgments of statutory rights, fair remuneration provisions, contract adjustment frameworks.

Italy specifics within the civil law framework

Italian copyright law has specific features within the broader civil law tradition:

• Articles 20-24 of Law 633/1941: moral rights provisions, including paternity, integrity, and disclosure. Inalienable and perpetual;
• Article 44: co-authorship of audiovisual works (screenwriter, composer, director);
• Article 45: presumed transfer of economic rights to producer by contract, with specific scope;
• Articles 22-bis and 22-ter: DSM transposition provisions on contract adjustment and revocation;
• Articles 78-bis ff.: phonogram producers’ neighbouring rights;
• Article 80 ff.: performers’ neighbouring rights;
• Italian Civil Code Article 10: image rights as part of personality rights;
• Italian Civil Code Article 1384: judicial reduction of disproportionate penalty clauses;
• D.Lgs. 177/2021: DSM Directive transposition.

For US, UK, or other foreign producers working with Italian creators or distributing in Italy, these provisions form the mandatory framework that shapes contracts regardless of choice-of-law clauses.

Frequently asked questions

What is the most important difference between civil law and common law copyright in film?

The treatment of moral rights. In civil law jurisdictions (Italy, France, Germany, most of Europe), moral rights are inalienable: the author retains the right of paternity and integrity regardless of any contractual transfer. In common law jurisdictions (US, UK), moral rights are typically narrower, waivable, or implemented through adjacent legal frameworks. For films modified, colorized, re-edited, or distributed in altered form across both systems, the divergence has direct practical consequences (Huston case).

Does the US “work for hire” doctrine apply in Italy?

Not directly. Italian law treats the actual creators (screenwriter, composer, director) as co-authors regardless of US-style work-for-hire arrangements. Economic rights can be transferred by express contract, but moral rights remain inalienable. US work-for-hire language imported into Italian productions must be adapted: economic rights assignment is effective; moral rights waivers are void.

What was the Huston colorization case?

John Huston’s heirs successfully challenged the colorization of “The Asphalt Jungle” in France in 1991, although they had lost the same claim in the United States. The French Cour de Cassation held that colorization violated Huston’s inalienable moral right of integrity under French law. The case illustrates how the same modification can be lawful in one jurisdiction and unlawful in another based on the legal tradition applied.

Can a US producer require a director to waive moral rights in an Italian production?

The waiver will not be effective for moral rights purposes. Italian moral rights are inalienable: contractual waivers are void. The producer can structure the contract with limitation and non-exercise clauses (the director agrees not to invoke specific moral rights in specific commercial contexts) rather than outright waivers, and can provide for specific approval mechanisms — but cannot eliminate the rights.

How long do moral rights last in Italy compared to the US?

In Italy, moral rights are perpetual: they survive the author’s death and continue indefinitely, exercisable by heirs. In the US, moral rights under VARA (limited to visual art works) last for the life of the author. For most US works, moral rights as such are not recognised; equivalent protections rely on other legal frameworks (defamation, unfair competition) with much shorter time horizons.

What law applies to a film produced in the US but distributed in Italy?

The applicable law depends on the specific question. For acts of exploitation in Italy (distribution, modification, public performance), Italian law applies to determine whether moral rights have been violated, regardless of US-law structuring of the underlying contracts. For contractual disputes, the contract’s choice of law governs (subject to mandatory rules). For tax credit applications by Italian co-producers, Italian rules apply comprehensively.

Does the DSM Directive affect international productions involving Italian creators?

Yes. The Digital Single Market Directive (2019/790, transposed into Italian law by D.Lgs. 177/2021) provides authors and performers with rights to fair remuneration, contract adjustment for disproportionate compensation (Article 22-bis Italian Copyright Act), and revocation for non-exploitation (Article 22-ter). These rights apply to Italian-resident creators and Italian-source works regardless of contractual choice-of-law clauses purporting to exclude them.

How should I draft moral rights provisions for a US-Italy co-production?

Use a dual-track approach: express economic rights assignment with US-compatible language; limitation and non-exercise clauses for moral rights (compatible with Italian inalienability principles); specific approval mechanisms for modifications, credits, and material uses; DSM compliance acknowledgments; clear jurisdiction and choice-of-law clauses. Bilingual drafting (English-Italian) with consistent effect across both systems is best practice.

How DANDI supports international film productions

DANDI.media supports US, UK, French, German, and other foreign film and television producers operating in or with Italy, with attention to cross-jurisdictional legal complexity:

• Co-production agreements: drafting and negotiation for Italian-US, Italian-UK, and other cross-jurisdictional co-productions, with calibrated rights allocation and moral rights handling;
• Director and performer contracts: for Italian directors and performers in foreign productions, and for foreign directors and performers in Italian productions, with moral rights compliance;
• Choice of law structuring: contractual designation of applicable law with awareness of mandatory rules across jurisdictions;
• Distribution agreements: for cross-border distribution, with attention to local moral rights, fair remuneration, and other mandatory rules;
• Modification and re-edit clearance: where productions are colorized, re-edited, dubbed, or otherwise modified for different markets, with moral rights and integrity analysis;
• DSM compliance: integration of EU Directive 2019/790 provisions into international production agreements;
• Litigation and dispute resolution: for cross-border copyright, moral rights, and contract disputes;
• Coordination with foreign counsel: working with US, UK, and other foreign counsel on multi-jurisdictional matters.

For an initial consultation on cross-jurisdictional film production matters, book a session with Avv. Claudia Roggero, founding partner of DANDI.media.

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