Ennio Morricone, the famed 88-year-old Italian composer, has lost a lawsuit aimed at grabbing back rights to film scores for Cosi Come Sei (Stay As You Are), Il Giocattolo (A Dangerous Toy) and Un Sacco Bello (Fun Is Beautiful). On Friday, in a case that had a New York judge reviewing Italian copyright law, U.S. District Judge Katherine Forrest granted summary judgment in favor of Bixio Music Group, the publisher assigned rights decades ago.
Morricone scored the films in the late 1970s and early 1980s pursuant to agreements with Bixio, which had its own contracts with film producers. The composer transferred to Bixio all rights in the works in exchange for three million Italian lira, the right to credits, and the right to a portion of the proceeds from use of the scores.
In 2012, Morricone sent termination notices over six film scores pursuant to the 1976 Copyright Act. In November 2016, he filed a lawsuit seeking a declaration that he indeed was successful in his termination.
The law, however, doesn’t allow “works for hire” to be terminated. Both Morricone and Bixio agreed that the film scores were commissioned works, but disagreed on the import.
Under American law, what matters is whether there’s a written instrument attesting to a “work made for hire,” meaning that the publisher is deemed the author. Some courts further analyze the situation by looking at whether an employer induced the creation of the work and had the right to direct and supervise the manner in which the work was carried out.
Italian law appears to be less stringent, and both sides presented dueling experts to interpret it.
According to Professor Rescigno, Bixio’s expert, a score is a work for hire if the publisher is conferred exclusive ownership via contract, and if the agreement sets forth instructions and requirements as to the delivery of the work. Rescigno essentially submitted that there’s no difference between a work for hire and a commissioned work. The score, though, would have to be completed in response to an “order” from a publisher or producer. Use of a pre-existing work wouldn’t qualify.
On behalf of Morricone, Professor Ricolfi (the opinion omits first names) had a different take. Ricolfi submitted that ownership vests with the original creator and that rights could be transferred, but that creators always retain rights. He nodded to how Italian law grants moral rights to authors. In his view, a composer’s work can never be a work for hire.
“The Court finds Rescigno’s explanation of Italian law more persuasive than Ricolfi’s,” states Forrest’s opinion. “Ricolfi argues that Italian law ‘rules out in principle that the work of a Composer may be considered a work for hire in the meaning adopted by the U.S. legal system.’ However, while the Italian copyright laws referred to by Ricolfi do typically grant the original copyright to a work to its creator, Rescigno explains that this does not prevent the assignment of those rights — an assignment which took place under each agreement between Morricone and Bixio. Ricolfi does not substantiate his opinion that a score cannot be a ‘work for hire’…”
“[M]oral rights are irrelevant,” she adds. “Economic exploitation rights — the only rights at issue in this case — are separate from moral rights relating to an artistic composition. There is no contention here that Morricone has lost his moral rights. And Rescgino points out that Italian law must recognize a ‘work for hire’ doctrine, as ‘articles 12 bis, 12 ter., 38, 45, 88 and 89 of the [Italian] Copyright Law’ demonstrate that copyrights can vest with persons other than the original creator.”
“Ultimately, Rescigno’s well reasoned analysis, combined with the text of the example contracts submitted to the Court by plaintiff, indicates that the six scores created by Morricone were, in fact, works for hire as defined by Italian law,” she concludes. “Defendant is thus the owner of the copyrights of the six scores. As such — and as the parties agree — 17 U.S.C. § 203 prevents plaintiff’s termination of the assignment of those rights.”