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

Last updated: September 2026 — by Avv. Claudia Roggero, Rome Bar since 2003, entertainment and copyright law, DANDI.media

The same modification of the same film, made by the same rightsholder, can be lawful in the United States and unlawful in Italy. That is not a theoretical proposition — it is the holding of the leading case in this area, and it is why a production agreement that works in Los Angeles cannot simply be exported.

Film copyright rests on two traditions. The civil law tradition of droit d’auteur governs Italy, France, Germany, Spain and most of Latin America. The common law tradition of copyright governs the United States, the United Kingdom, Australia and most of the Commonwealth. They share the foundations — exclusive rights, automatic protection, territoriality — and diverge precisely where international productions need certainty: moral rights, work for hire, who counts as the author, and what a contract can actually transfer.

This guide maps the divergence and what to do about it in drafting.

In this guide

• Two traditions, one Berne framework
• Moral rights: the central divergence
• The Huston case: the divergence in practice
• Who is the author of a film?
• Work for hire and its limits in Italy
• The director across jurisdictions
• Performers and image rights
• DSM rights that survive the choice of law
• Drafting strategies that work in both systems
• Frequently asked questions
• How DANDI supports international productions

Two traditions, one Berne framework

Droit d’auteur developed from eighteenth and nineteenth century natural rights philosophy, particularly in post-revolutionary France. It treats the author as having a personal connection to the work that survives any economic transfer and cannot be extinguished by contract. That premise generates inalienable moral rights.

Copyright developed from the 1709 Statute of Anne with an economic and utilitarian rationale: a state-granted monopoly to incentivise creation and dissemination. The author’s interest is principally economic, the work is a transferable commodity, and corporate entities can be authors outright.

Both operate inside the Berne Convention, and Article 6bis requires every signatory to recognise at least the rights of paternity and integrity. But Berne sets a floor, not a method — and the implementations diverge sharply:

• Civil law states implement through inalienable regimes: moral rights cannot be waived or transferred.
• Common law states implement narrowly — rights that are waivable, limited to certain categories of work, or displaced onto adjacent frameworks such as defamation and unfair competition.

A common foundation with divergent implementation is the structural reason productions get caught.

What both systems agree on

Exclusivity of the rightsholder; automatic protection without formalities (Berne Article 5); freedom to contract over exploitation; remuneration as the underlying rationale; territoriality; and a minimum term of life plus 50 years, extended to life plus 70 across the EU by Directive 2006/116/EC.

Moral rights: the central divergence

In Italy, moral rights sit at Articles 20–24 LDA: paternity, integrity, disclosure, and — in exceptional circumstances of serious moral reasons — withdrawal from circulation under Articles 142–143 LDA. They are inalienable, unwaivable and perpetual, and they pass to the heirs identified in Article 23.

The US position is the most restrictive of the three. Federal moral rights under the Visual Artists Rights Act (17 U.S.C. § 106A) cover works of visual art and do not reach audiovisual works at all. A US producer seeking attribution or integrity protection relies on contract and on adjacent doctrines.

The UK sits in between: the CDPA 1988, sections 77–89, gives moral rights to the screenwriter, director, composer and others — but allows them to be waived by signed agreement, which in commercial practice means they usually are.

The Huston case: the divergence in practice

John Huston’s 1950 film The Asphalt Jungle was colourised in the 1980s for television distribution. Huston objected before his death in 1987; his heirs continued after it.

In the United States, the heirs lost. US law recognised no enforceable integrity right in a cinematographic work that could prevent the modification, and the copyright owner’s contractual rights authorised it.

In France, they won. The Cour de Cassation held on 28 May 1991 that the colourisation breached Huston’s moral right of integrity, applying French law to the exploitation in France notwithstanding the US contractual arrangements.

Three propositions follow, and they remain the working rules:

1. Moral rights govern acts of exploitation in the jurisdiction, whatever the contract’s choice of law.
2. Substantial modification triggers the integrity right even where economic rights were validly assigned. Owning the copyright is not the same as being free to alter the work.
3. Heirs enforce perpetually — here, on a film made forty years before the litigation.

Italian courts apply the same logic under Articles 20–22 LDA. The modern equivalents are AI colourisation, aggressive remastering, aspect ratio changes and AI de-aging: the right attaches to the modification, not to the technology.

Who is the author of a film?

Italy

Article 44 LDA names four co-authors of a cinematographic work:

1. the author of the subject (soggettista);
2. the author of the screenplay (sceneggiatore);
3. the composer of the music written for the work;
4. the artistic director.

Subject and screenplay are two distinct positions, not one — frequently two different people, and the distinction matters twice: each holds moral rights individually, and the term of protection in the work runs from the death of the last survivor among all four.

Economic rights pass to the producer through the framework of Articles 45 and following. Moral rights do not pass at all, and under Article 10(3) LDA the defence of the moral right can always be exercised individually by any one co-author. One objection is enough; the agreement of the other three does not cure it.

France

Article L. 113-7 of the Code de la Propriété Intellectuelle identifies a comparable set, adding the author of the dialogue and the author of any pre-existing work adapted.

United States

Films are typically works made for hire under 17 U.S.C. § 101. The production company is the legal author; the director, writer and composer are employees or contractors whose contributions are absorbed. This is not a drafting convention but a statutory allocation of authorship — and it is fundamentally incompatible with the Italian position. A US film distributed in Italy carries the moral rights of its actual creators under Italian law, whatever US law says about who the author is.

United Kingdom

Under the CDPA 1988 the authors of a film are the producer and the principal director jointly. The screenwriter and composer are not co-authors of the film, but hold copyright in their own underlying works. The UK therefore sits between the US and continental models.

Work for hire and its limits in Italy

Importing US work-for-hire language into an Italian agreement produces a predictable pattern of outcomes:

The director across jurisdictions

• United States — a contractor under work for hire, with no underlying authorship. Final cut is negotiable and is not the default.
• United Kingdom — joint author of the film with the producer, holding moral rights that can be waived by signed agreement.
• Italy and France — co-author with inalienable moral rights. Final cut, in its strongest form, is the integrity right: not a privilege that was granted, but a right that could never be sold.
• Germany — comparable to Italy and France, with a robust integrity right.

The practical consequence for a US–Italy production: a producer holding contractual final cut under California law does not hold it in Italy. What works instead is an approval mechanism — see the drafting section below.

Performers and image rights

• Italy — performers hold neighbouring rights under Article 80 and following LDA, moral rights under Article 81, and equitable remuneration collected through NUOVO IMAIE. Image rights sit separately in personality rights under Article 10 of the Civil Code and Articles 96–97 LDA.
• United States — protection comes from guild agreements, state right-of-publicity laws that vary widely between states, and contract. Federal copyright gives performers in audiovisual works little.
• United Kingdom — neighbouring rights under the CDPA with both moral and economic elements, broadly aligned with EU standards.

A performer may have no copyright claim in Italy and a strong personality rights claim on identical facts. The two run in parallel and are enforced separately — which is why AI voice cloning and face replacement engage both at once.

DSM rights that survive the choice of law

Chapter 3 of Directive (EU) 2019/790, transposed by D.Lgs. 177/2021, gives authors and performers rights that cannot be waived in advance.

Two features matter for a foreign producer:

• Articles 110-quater and 110-quinquies are overriding mandatory provisions for the purposes of Article 3(4) of the Rome I Regulation. Choosing New York or English law does not displace them where Italian creators or Italian-source works are involved.
• Contract adjustment reaches historical agreements. A property acquired cheaply that then performs far beyond projections is exactly what the provision addresses.

Drafting strategies that work in both systems

Choice of law, honestly assessed

Designate the governing law expressly, but do not expect it to do more than it can. Italian mandatory rules on moral rights and the DSM transparency and adjustment provisions apply regardless. Brussels I bis (Regulation (EU) 1215/2012) governs jurisdiction within the Union; Rome I (Regulation (EC) 593/2008) governs the applicable law to the contract.

Limitation and non-exercise instead of waiver

The enforceable substitute for a void waiver is an undertaking not to invoke specified moral rights in specified commercial contexts — standard exhibition, customary distribution, ordinary restoration, dubbing for territorial markets, normal promotional use. Precision is what makes it hold. A clause covering “any and all modifications” is closer to a waiver and closer to being unenforceable.

Approval mechanisms under Article 22(2) LDA

This is the provision to build around. Article 22(2) LDA provides that an author who has known of and accepted modifications to their work can no longer act to prevent them or seek their removal.

It converts open-ended exposure into a closed process: the producer proposes specific modifications, the co-author approves or declines case by case, and approved modifications are protected. Slower than a waiver, and unlike a waiver it works.

Modular architecture

Express economic rights assignment compatible with both systems; jurisdiction-specific schedules for local mandatory rules; DSM acknowledgments rather than exclusions; and, for Italian–US or Italian–UK deals, bilingual drafting where each version functions under its own system without internal inconsistency.

Frequently asked questions

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

The treatment of moral rights. In Italy, France, Germany and most of Europe they are inalienable: the author keeps paternity and integrity whatever the contract says. In the US and UK they are narrower, waivable, or displaced onto adjacent frameworks. For films that are modified, re-edited or colourised and then distributed across both systems, the divergence is unavoidable.

Does the US work for hire doctrine apply in Italy?

Not as such. Italian law treats the actual creators as authors regardless of work-for-hire language. Economic rights can be assigned by express written contract; the deeming of authorship in the producer has no effect, and the moral rights waiver is void.

Who are the co-authors of a film under Italian law?

Four, under Article 44 LDA: the author of the subject, the author of the screenplay, the composer of the music written for the work, and the artistic director. Subject and screenplay are separate positions. Each co-author can defend the moral right individually under Article 10(3) LDA.

What was the Huston colourisation case?

John Huston’s heirs challenged the colourisation of The Asphalt Jungle. They lost in the United States and won in France before the Cour de Cassation on 28 May 1991, which applied inalienable French moral rights to the exploitation in France regardless of the US contractual arrangements. The same modification was lawful in one jurisdiction and unlawful in the other.

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

The waiver will not be effective. The workable structure is a limitation and non-exercise clause for defined commercial contexts, combined with an approval mechanism under Article 22(2) LDA under which the director approves specific modifications case by case.

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

In Italy they are perpetual, surviving the author’s death indefinitely and exercisable by the heirs identified in Article 23 LDA. In the US, VARA rights last for the author’s life and cover only works of visual art; audiovisual works are outside the regime entirely.

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

It depends on the question. For acts of exploitation in Italy — distribution, modification, public performance — Italian law determines whether moral rights have been infringed, whatever the contracts say. Contractual disputes follow the governing law clause, subject to mandatory rules.

Do DSM rights apply to international productions involving Italian creators?

Yes. Transparency (Article 110-quater LDA), contract adjustment (Article 110-quinquies), ADR before AGCOM (Article 110-sexies) and revocation for non-exploitation (Article 110-septies) cannot be excluded by contract. The transparency and adjustment provisions are overriding mandatory rules under Article 3(4) of the Rome I Regulation.

How should moral rights be drafted for a US–Italy co-production?

Express economic rights assignment in terms that satisfy both systems; a limitation and non-exercise clause rather than a waiver; a case-by-case approval mechanism under Article 22(2) LDA; jurisdiction-specific schedules; DSM acknowledgments; and bilingual drafting where each language version works under its own law.

How DANDI supports international productions

DANDI.media acts for US, UK, French, German and other foreign producers operating in or with Italy, and is regularly instructed by foreign counsel on the Italian-law elements of a wider transaction:

• Co-production agreements across jurisdictions, with rights allocation and moral rights handling
• Director and performer contracts — for Italian talent in foreign productions and foreign talent in Italian ones
• Adaptation of US and UK templates — replacing void waivers with enforceable Italian provisions
• Choice of law structuring with a clear view of which mandatory rules survive it
• Distribution agreements with master cut and approved variation frameworks
• Modification and re-edit clearance for colourisation, dubbing, restoration and AI modification
• DSM compliance and enforcement of transparency, adjustment and revocation
• Disputes and coordination with foreign counsel on multi-jurisdictional matters

We work in English, Italian and French.

Book an initial consultation with Avv. Claudia Roggero.

Related guides

Primary sources

Italian Copyright Act (Law 633/1941), in particular Articles 10, 20–24, 44–50, 80–81, 96–97, 110, 110-quater to 110-septies and 142–143; Italian Civil Code Articles 10 and 1384; D.Lgs. 177/2021; Berne Convention, Article 6bis; Directive (EU) 2019/790; Directive 2006/116/EC; Regulations (EU) 1215/2012 and (EC) 593/2008; French Code de la Propriété Intellectuelle; UK Copyright, Designs and Patents Act 1988; US Copyright Act, 17 U.S.C., including § 101 and § 106A.

This guide states the position at the date above. Confirm current provisions before relying on it for a specific transaction.

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