The art lies within the listening

Usually, a film is created by more than one person. However, in the end, not all of these persons will be (co-)authors of the cinematographic work in terms of copyright. Condition for co-authorship is an individual creative contribution that cannot be utilized apart from the cinematic work and the common will of the authors to collaborate and to subject to the overall idea.

As a continuation of the introduction „Film sound and copyright“, the following explanations are looking into the copyright issues of film sound in depth.

The co-authors of a film usually are the director, the director of photography (camera), the film editor and the costume and set designers. This is undisputed, that is to say recognized by jurisdiction and science.

It is striking that these professional groups are concerned mainly with the visual part of the film. A film undoubtedly thrives on its visual layer: the audience focuses on the image. But this is too short-sighted – the era of silent movies has been over since the end of the 1920s. Without the second, equally important layer of the film, the auditory one, the visual layer would lose a great part of its impact and impressiveness: the audience sees and feels, what it hears. Sound in film has the capacity to direct the spectator, his emotions and associations within the respective scene.

The complexity and importance of film sound is expressed, not least, in the diversity and elaboration of the miscellaneous film sound professions. Hence, the audio track is a collaboration of multiple (film) sound professionals. It begins with the production sound mixer, who records the acoustic actions at the filming location. Next is post production with the sound designer, the dialogue editor, the team of Foley artist and Foley mixer, the Foley and FX editor as well as the ADR recordist and the ADR editor, who create or edit the single sound elements – dialogue, noises, ambiences, effects and music. The supervising sound designer composes the sum of these results into a dramaturgical whole and the re-recording mixer adds final dramaturgical touches, designs the overall sound of film.

Do film sound professionals rank among the co-authors of the cinematic work? Do they contribute individually and creatively in terms of the German copyright law?

Starting point is the definition of film sound : “Works in film sound that use tones (sounds, noises) as a means of expression for the creation of an authentic or artistic sound for motion pictures are all personal intellectual creations”.

So the known criteria for a “personal intellectual creation“, developed by jurisdiction and literature have to be met.

Personal creation: A creative, designing activity must take place, carried out by a human being. This assumption can clearly be taken for granted in the case of film sound professionals.

Intellectual content: Further, the human spirit needs to be reflected in the creation. This is the case: film sound is designed in a conscious process, and is not merely a technical product of chance. The sounds are specifically used for the creation of a sound pattern, much like an acoustic pattern. As a comparison, for musical works, the “intellectual content“ lies within the sequence of notes perceptible by hearing. A film sound professional uses technical tools, as do all film professionals, but these do not operate independently and in an uncontrolled way.

Perceptible design: The perception process must access the human senses. The result of film sound professionals’ work, the film sound/ audio track, is perceptible by the human senses (the hearing among other things).

A key criterium for the copyright understanding is individuality. It must be an individual creation of personal expressive quality, the result of individual intellectual work. The individuality can be expressed in various intensities. This qualitative element is described by the term “threshold of originality”. This threshold of originality – depending on the kind of work – must be attained in order to be able to speak of a work in copyright terms. The more creative freedom a creative person enjoys, the earlier the threshold of originality is attained.
When trying to determine if we are dealing with a work protected by copyright laws, this is often – as in our case – the key issue: is it mere craftsmanship, a routine performance, or does the work of the film sound professional sufficiently reflect the individual spirit of an artist?

Film sound professions do indeed have an element of craftsmanship that requires a technical expertise. This, however, is no indication of a routine, everyday performance – much to the contrary, craftsmanship and technical skills are the admission ticket, allowing the professional to create immensely diverse, individual, contrasting works (“soundscapes”) and subsequently attain the threshold of originality needed for a creative, inventive contribution. Considerable scope for individual creative traits remains.

So the known criteria for a “personal intellectual creation“, developed by jurisdiction and literature have to be met.

Personal creation: A creative, designing activity must take place, carried out by a human being. This assumption can clearly be taken for granted in the case of film sound professionals.

Intellectual content: Further, the human spirit needs to be reflected in the creation. This is the case: film sound is designed in a conscious process, and is not merely a technical product of chance. The sounds are specifically used for the creation of a sound pattern, much like an acoustic pattern. As a comparison, for musical works, the “intellectual content“ lies within the sequence of notes perceptible by hearing. A film sound professional uses technical tools, as do all film professionals, but these do not operate independently and in an uncontrolled way.

Perceptible design: The perception process must access the human senses. The result of film sound professionals’ work, the film sound/ audio track, is perceptible by the human senses (the hearing among other things).

A key criterium for the copyright understanding is individuality. It must be an individual creation of personal expressive quality, the result of individual intellectual work. The individuality can be expressed in various intensities. This qualitative element is described by the term “threshold of originality”. This threshold of originality – depending on the kind of work – must be attained in order to be able to speak of a work in copyright terms. The more creative freedom a creative person enjoys, the earlier the threshold of originality is attained.
When trying to determine if we are dealing with a work protected by copyright, this is often – as in our case – the key issue: is it mere craftsmanship, a routine performance, or does the work of the film sound professional sufficiently reflect the individual spirit of an artist?

Film sound professions do indeed have an element of craftsmanship that requires a technical expertise. This, however, is no indication of a routine, everyday performance – much to the contrary, craftsmanship and technical skills are the admission ticket, allowing the professional to create immensely diverse, individual, contrasting works (“soundscapes”) and subsequently attain the threshold of originality needed for a creative, inventive contribution. Considerable scope for individual creative traits remains.

The art lies within listening, particularly within the evaluative listening: What do I want to hear? What am I supposed to listen to? What am I supposed to hear how?

The creation of a sound-aesthetic concept – a soundscape – is the result of an individual intellectual activity, that exceeds technical necessities by far.

Our aim is to demonstrate this by means of the example professions production sound mixer, sound designer and Foley artist/mixer. In the following article, the professions re-recording mixer, dialogue editor, Foley editor and FX-editor will be discussed under their copyright aspects.

Production sound mixers

The production sound mixer records the audible action at the filming location, focusing especially on dialogue. But before the filming even starts, production sound mixers already advise directors concerning the acoustic suitability of the sets. For these tasks, they contribute artistic-creative skills: he or she possesses a pronounced intuition for the underlying mood of the scene, understands the image contents and dramaturgical functions of a take in an instance and employs the means of production sound design accordingly. Depending on the way that they wants to portray the scene and atmosphere, they choose and align suitable microphones. They may employ technical aids in the process, but do so in order to create a sophisticated “soundscape”. They enjoys great autonomy in the decision-making: directors or DOPs usually cannot give exact specifications regarding their job, the creation of a soundscape, due to lack of technical expertise. The production sound mixers thus bring forth their individuality in the film by developing a preliminary sound-aesthetic concept (e.g. what aesthetic is the recording supposed to have? Which genre is the recording supposed to belong to?) and hence operates creatively and inventively in copyright terms.

Foley artists / Foley mixers

The job of a Foley artists is per se an artistic one because they create and recreate entirely new sounds from scratch. Their original sounds, created for a specific film, give the film’s action an organic feeling of authenticity and sensuality. It is only through sounds created by Foley artisst and their distinct actions and creativity that an illusion of a perceived reality or hyperreality is conveyed to the audience, where things/appearances sound, that do not sound in reality (such as a sun ray).

The Foley mixers record the sound creations of Foley artists according to the dramaturgical requirements of the film. These do not necessarily come from the image or the screenplay, and may thus lie completely in the hands of the Foley mixer and artist.

Foley mixers design the sound and sound impacts in an individual intellectual work. They enhance or diminishes filmic messages and makes feelings perceptible/palpable by the use of sounds.

For the shaping of sound, Foley mixers employ technical aids; they does so in order to further shape the soundscape for example through miking, filtering and dynamic processing. Along with the Foley artists they decide on type, length, frequency and intensity of sounds and are not subject to the director’s specific requirements. They also enjoy a considerable design scope that they fill with their individuality.

Sound designers

In post production, sound designers recreate the sound reality, exaggerate or reshape it. They design ambiences and add sound effects. It is only through sound design that non-human agents like vehicles or furniture receive the desired emotional character. The sound designer defines and opens time and spaces in which the film’s action takes place. As a result, the feelings and associations of the audience are being directed: Where are we? Which mood is spreading here? Peaceful or threatening? The sound designer elaborates an all-encompassing, final sound concept, an acoustic scenography and thus helps shape the audio layer and the film in general on a dramaturgical level.

Conclusion

Every one of these representative examples of film sound professions meet the criteria for an “individual intellectual creation“ in copyright terms in their respective field of activity. They work in a sufficiently independent way and thus comply with the requirements of an individual intellectual creation.

Other requirements of co-authorship are also met: they have the will to shape the film along with other co-authors and subject to the overall idea. They represent the auditory counterpart to the filmmakers primarily occupied with the visual layer such as director of photography, film editors and costume and set designers. It is for these reasons that the film sound professionals are to be seen as regular co-authors of a cinematic work.

In the context of the negotiations for the „Ergänzungstarifvertrag Erlösbeteiligung Kinofilm“ (Supplementary Wage Contract of Proceeds Participation in Feature Film) between the trade union ver.di/the German actor’s association BFFS and the producer’s alliance Allianz Deutscher Produzenten, that settles an “adequate remuneration“ of film authors according to §32 UrhG (German copyright law), this co-authorship was recognised in 2013 by all negotiators. For a start, production sound mixers, sound designers, FX editors, Foley artists, Foley mixers and re-recording mixers were then recognised as filmmakers regularly involved in the copyright authorship of the film.

The author of this text further advocates a holistic approach to film sound, which means: film sound = work. Film sound as a whole is a work in copyright terms.

Béla von Raggamby,
Specialist lawyer for copyright and media law and legal advisor of the bvft

Special thanks for the assistance to Lorenz Müller-Tamm.