April 05, 2013 2:03pm PT by Eriq Gardner
Oscar-Winning Danish Film at Center of Tug-of-War
An international copyright struggle has broken out over the 1987 Danish film, Babette’s Feast, which won an Oscar for Best Foreign Picture.
The film was directed by Gabriel Axel, who according to a lawsuit filed in California federal court this week, now claims to own the movie. That's caused Josi Konski, a Cuban-born film producer who lives in Beverly Hills and operates Astrablu Media, to object. Konski believes that in 2007, he acquired rights to Babette’s Feast from the film's original producer.
What makes this lawsuit intriguing is that two weeks ago, upon word that Babette’s Feast was going to be reissued as part of Janus Films' "Criterion Collection," the Danish Film Directors trade association sent a letter stating that Axel -- not Konski -- owned the copyright.
The basis for that proposition appears to come from an obscure 2010 amendment to the Danish Copyright Act. Now, the question might be whether something known in copyright circles as an artist's "moral rights" allows a foreign film director to reclaim a movie upon one film company's transfer of ownership to another.
According to the lawsuit filed by Konski against Axel and the Danish Film Directors (read in full), it was only very recently that Axel make an ownership claim on Babette’s Feast, which is about two adult sisters living in an isolated village in 19th Century Denmark.
The film was produced by Just Betzer and when it came out 25 years ago, it was owned by Betzer's company, Panorama Film International. The complaint says that when the film was made, and Axel agreed to render his directorial services, the contract acknowledged that Panorama retained copyright.
Panorama is also said to have registered copyright on the film in the U.S. in 1987, "listing Panorama as the author," and that a decade later when Axel initiated arbitration over owed royalties due, he didn't assert ownership. Nor, according to the lawsuit, did he make any claims on Betzer's estate when the producer died in 2003, or when the film rights were sold four years after that.
The only complication appears to be a company named Nordisk, which is said to have partially financed and co-produced the film and which retained a minority financial interest. The relationship between Panorama, Nordisk and Axel is somewhat complicated, but in 2000, Nordisk reportedly acquired rights for Babette’s Feast in Scandinavian territories with Panorama retaining rights elsewhere.
After Konski came to an agreement to acquire rights to the film, and then made an agreement with Janus for a DVD re-release, he heard from the Danish Film Directors, representing Axel, that he owed the director 15 percent of the gross profits. In response, Konski asserted that he had not assumed any obligations.
The lawsuit then follows, "Apparently frustrated by their inability to show that Axel was due any payment, on information and belief, the Danish Film Directors and Axel decided to resort to unlawful tactics to force payment."
Konski says that on March 21, he got a letter that asserted he had no copyright interest in Babette’s Feast.
According to a second letter, his non-ownership was allegedly due to Section 56 of the Danish Consolidated Act on Copyright 2010, which has been translated to read, "Assignment of copyright does not give the assignee any right to alter the work unless the alteration is usual or obviously presumed."
That seems consistent to an approach adopted by many foreign countries regarding an artist's moral rights -- which typically protects the integrity of a work from being altered, distorted or mutilated without an author's approval.
But can it protect against copyright assignments?
The lawsuit refers to the letter and answers, "No explanation was given concerning why a stranger to the copyright would have standing to object to an assignment of copyright, nor why a release of the Film in Bluray and DVD formats constitute an 'alteration' of the Film that is neither "usual' nor 'presumed.'"
Konski , represented by attorney Jay Spillane, now seeks a declaration of his rights under the Copyright Act -- which might force a judge to look at both U.S. and Danish law -- and whether a home video release is a substantial alteration.
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner