Translated material
Cheburashka sold
However, in October, at the international animation festival “Krok”, 15 famous domestic directors and animation artists (including Fyodor Khitruk, Yuri Norshtein, Eduard Nazarov, Leonid Shvartsman, Sergei Alimov, Natalya Orlova and others) hung under a desperate poster “They are stealing!” open letter. It said there that they “never transferred their rights to either Soyuzmultfilm, its Film Fund, or the Fancy company.” This means that the agreement concluded between the fund and Fancy is an agreement on the production and sale of counterfeit products.” The Film Fund, on the contrary, presents the matter in such a way that all other companies, even those who previously entered into agreements with directors and artists to produce goods using Soviet cartoon characters, are acting illegally.
To understand the intricacies of this story, you need to go back exactly ten years ago, when Soyuzmultfilm ended a series of endless disputes, trials, struggles for power and redistribution of property that lasted throughout the nineties.
Background
A lot has been written about the dramatic events of those years: the criminal stories surrounding the most valuable collection of Soyuzmultfilm, which was sold and resold by all and sundry, without having any rights to it, did not differ from other showdowns with property of the 90s. Self-proclaimed directors who cannot be removed from office even by a court decision, armed guards who do not allow workers into the studio, physical violence against those who interfere, dubious corporatization against the backdrop of endless meetings of the labor collective - all this happened at Soyuzmultfilm in the same way, as in other enterprises. The only difference was that a film studio is a creative enterprise, and now the people who created the films for which there was a struggle were sent to a miserable pension or left without work.
Tired of dealing with the complicated situation, the state simply abandoned the remnants of Soyuzmultfilm, where there were still many full-time employees, and recreated the studio anew: by order of the government of the Russian Federation in June 1999, a new organization appeared - the Federal State Unitary Enterprise "Film Studio "Soyuzmultfilm", which was endowed rights to the collection and settled in the old place under the old name. Some animation historians believe that the new Soyuzmultfilm cannot even be legally considered the successor of the old one.
The next step was taken in January 2003, when the Soyuzmultfilm film studio was separated from its collection. This is how two separate enterprises appeared - the Film Fund of the Soyuzmultfilm film studio and the Soyuzmultfilm film studio. From the point of view of world practice, the separation of a producing film studio from its collection is absolute savagery, because all the world's studios live and make films thanks to the sale of the rights to use their old successful films. But we don’t care about world practice: in full accordance with the old communist tradition, our state with one hand takes away everything that was accumulated before, and with the other it feeds itself, albeit in a very meager and egalitarian way.
And finally, step three: at the end of 2008 it was announced that the film funds of all state film studios, except for Mosfilm, would be transferred to the Film Fund of the Soyuzmultfilm film studio as the most profitable and all this would be renamed the “United State Film Collection”. This spring It became known that the Soyuzmultfilm Film Fund had already absorbed the funds of the Diafilm studio, Tsentrnauchfilm and the M. Gorky studio, and in July, with the addition of the film funds of the Sverdlovsk Film Studio and Lenfilm, the reorganization was supposed to come to an end. The process of transferring everything that was done in animation during the Soviet years into one hands has been completed and the separation of the film archive from those who created it has been completed.
Present day
It is clear that the super-film collection is a storeroom to which “strangers” will not be allowed. Now the director of the Film Fund is Vasily Shilnikov, who previously worked at the advertising agency Sorec Media, but studio workers overseeing the large-scale renovation that turns the filming premises into offices are confident that one of the main film officials will come to head the fund. One way or another, the life of the Film Fund is becoming more and more active, this can be seen even from its page on the Internet. Since August, news began appearing on it and the forum started working. True, so far there are practically no messages in it, but only the topics stated by the moderator: “Cartoons are our national treasure”, “Whose cartoons are these?”, “Cartoon characters and who can use them”, “Cartoon piracy”, but the given direction interests are quite clear. Having concentrated a huge collection in one hand, the Film Fund is now very strict about ensuring that profits from its use do not go into other hands. There is a strict warning on the foundation’s website, emphasizing that it is the exclusive copyright holder of the collection: “The use of animated films, both as a whole and individual parts of these films (fragments, characters, soundtracks, etc.) by third parties is possible only on the basis of appropriate agreements, prisoners with the Federal State Unitary Enterprise Film Fund of the Soyuzmultfilm Film Studio.
Meanwhile, the press is full of reports about noisy trials in recent years, where the litigants in the dispute over the characters of old cartoons are the authors who created them. One of the main participants in this kind of litigation was the writer Eduard Uspensky, who more than once won lawsuits against companies that produced goods depicting cartoon characters based on his scripts. And among the most odious disputes is the long-term litigation of the writer and director of cartoons about Cheburashka Leonid Shvartsman over the right to the image of the hero. It seems that now we can expect a new wave of lawsuits filed by the Film Fund, which insists that everything belongs to it.
This situation is directly related to how work will be carried out with the united collection, the acquisition of which serious administrative resources have been devoted to - according to the law or not? In order to understand it, we turned to the Center for Legal Protection of Intellectual Property. The question is simple: who owns the cartoon characters?
Who owns what?
Our interlocutors are Vladimir Lvovich ENTIN , corresponding member of the International Academy of Comparative Law (France), director of the Center for Legal Protection of Intellectual Property, lawyer, and executive director of the center Rita Grigoryevna LIKHOTA .
Vladimir Entin: -- The fact is that our legislation has changed many times throughout the life of one generation, and in Soviet times, when there was no private property, and now, when it is recognized, the laws on this matter were fundamentally different. The Soyuzmultfilm film studio only had the right to make cartoons. She had no other authority to use the works included in the cartoon (that is, images, music or script). Issues of film distribution, television exhibition, and export of films were removed from the jurisdiction of film studios. This was done by specialized government organizations. Such, for example, as Goskino, Sovexportfilm. In 1991, the USSR disappeared, but Soviet civil legislation continued to operate. On August 3, 1993, the Russian Federation Law “On Copyright and Related Rights” came into force. It gave the organizations where films were made the right of ownership of the film, and the authors the right of ownership of the works included as part of the film (that is, artists - for drawings, composers - for music, etc.). On January 1, 2008, Part IV of the Civil Code came into force, and the situation with the rights of authors changed again. The courts have a lot of questions about what to do with works created before the latest changes in legislation. The resolution of the Supreme Court and the Supreme Arbitration Court of March 26, 2009 explained to the courts that with regard to the ownership of rights, one must proceed from the legislation that was in force at the time of the creation of the work. When it comes to using a work, one must apply the law that was in force at the time of use. In addition, since 2008, such a sub-object as a character in a work has appeared, which is the reason for all the time controversy.
- About the character, please, in more detail.
V.E.: -- The law defines a character as part of a work. This means that the character exists in a form specific to the work. The pictorial character is drawn by the artist. A literary character emerges from the writer's text. If a character moves and speaks, and can be seen thanks to a technical device, we, in accordance with paragraph 1 of Art. 1263 of the Civil Code of the Russian Federation we are dealing with a film character. When we see a sneaking tiger speaking in Papanov’s voice, we see Shere Khan from the cartoon “Mowgli”. If we are talking about a drawing of a tiger and a toy made from it (that is, there is no technical device), then there is no talk about a cartoon character.
Literary works can have many incarnations. In The Jungle Book there are characters from the same Kipling book about Mowgli, but completely different. Therefore, it is always necessary to specify what exactly we are talking about, what kind of work - drawn, literary, sound, motionless or static. If you mix everything together, then there will be a huge number of people who want to say: this is my character.
- Actually, in all legal disputes it is about who owns the cartoon characters. Scriptwriters say what they want, artists say what they want, but now Filmofond claims that in fact everything belongs to him.
Rita Likhota: - Everything is written down in the law clearly, clearly, and no one has ever disputed it. Soyuzmultfilm was created in 1936, so the bulk of Filmofond’s films were made when the Civil Code of 1964 was in force, which had a special part on copyright. It states in black and white that the rights to the film belong to the studio (“the enterprise that carried out the filming”), and the authors have the rights to the works included in it. Thus, the rights to the music from the film belonged to the composer, the author of the script - the text, the production designer - the entire video sequence, if he did not transfer these rights to third parties under some agreement. Everyone understood that Cheburashka was drawn by Shvartsman, and Leopold the cat by Nazaruk, and there were no questions. Questions unexpectedly arose in the late 90s, when Mr. Uspensky realized that selling only texts was not enough for him, since there were successful images of literary characters and they were especially interesting to manufacturers of various goods. The same thing happened with Soyuzmultfilm. He had never claimed or traded the images before.
- This is natural, no one has offered money for them before.
V.E.: -- In general, all the decisions that related to the Soyuzmultfilm film studio in recent years were determined by the struggle for the Soviet collection.
- Why fight for her? What difference does it make whether it belongs to a studio or a foundation, if both are state-owned?
V.E.: - The state is also people. Our state now employs six times more officials than there were in the Soviet Union. And some of these officials work in the government apparatus. Living on one salary is no fun. It’s a different matter if you have a subordinate enterprise, the fate of which can be controlled by corporatizing it. This is one way to get your hands on intellectual property. It seems that the Film Fund should be involved in the sale of film rights. At the same time, Filmofond employees organized the sale of rights to something that Filmofond does not have - works that are part of films. For example, images of characters. If there are no rights to it, then it is not taken into account anywhere and in any way, which means that it is uncontrolled property that can be disposed of. That is why the Film Fund has now placed an announcement on its website that all rights to the characters, etc. belong to them. But this is complete nonsense.
- What nonsense if it is known that the Film Fund received an official document about this from the Ministry of Culture, signed by the Deputy Minister?
V.E.: -- The Ministry of Culture is not a law. There was a special explanation from the Ministry of Culture that the various types of papers that come from it are papers of a departmental nature, an explanation for lower departments, and they have no force for third-party organizations. Moreover, no one except lawyers really understands all these subtleties, and then the interpretation begins. And it’s formulated this way with merchants in mind who don’t see the difference. This is juggling with concepts...
R.L.: -- The Film Fund acts cunningly, it tells the old artists: we will pay you money, and you sign an agreement that you transfer the rights to us. Now many artists who made old cartoons, or their heirs, who are also sometimes in difficult financial situations, sign these papers, and the Film Fund manages the rights to their images.
V.E.: - The artists who painted in Soviet times are elderly people, for whom it is very difficult to understand the new rules, especially since they change all the time. These are people who are used to trusting the state, and when an official comes to them and says: we want to pay you money, but you sign here, otherwise you won’t receive it, they sign.
- What, are they offering some serious money?
R.L.: - No, but for these people even 100 thousand rubles. - very serious money. They live on a pension of 5 thousand rubles. These are people who could be millionaires in the USA, people of enormous talent.
- There are not many truly popular cartoons, so for some artists 100 thousand is a good solution.
V.E.: -- Officials from the Film Fund are not altruists, they do not turn to those artists whose works have no commercial prospects, and they offer different amounts. And for a person who receives nothing, even 3 thousand rubles. -- money. These are all elements of cultural raiding.
R.L.: -- They also understand that it is difficult for old artists to resist them, it is difficult for them to sue, they cannot hire lawyers...
V.E.: — When an official says: previously everything belonged to the state, so now everything should belong to the Film Fund, no one wants to get involved with him. Everyone thinks: who will cause the least harm, that it is better to deal with an artist who will try to protect her rights, like Natalya Orlova (the production designer of “The Secret of the Third Planet” lost a lawsuit with the Landrin factory, which produced a series of chocolate eggs, in which cartoon characters were used - D.G. ), or deal with a government agency that says: buy the rights from me, and I’ll try to defend you if an artist suddenly comes up against you? It turns out that the people in charge of the official structure took exactly the same position - to take away and sell what does not belong to this structure - which the writer Eduard Uspensky has so far occupied. The logic here is simple: if a private individual can get away with it, then a government agency can get away with it even more so. And the Film Fund, if the authors did not transfer their rights to it under the contract, cannot legally have any rights to the works included as part of the film.
In the Golovinsky court, for example, they considered Orlova’s claim for a long time, and as a result they said: these chocolate eggs do not use drawings, but cartoons. How, the lawyers wondered, could chocolate eggs really be considered as a technical means for showing a film? This already concerns the issue of the professional level of judges and lobbying of certain business structures.
R.L.: -- For Shvartsman, the court did not write in its decision that the rights belonged to Uspensky, who was involved as a third party, and did not write that the rights belonged to Soyuzmultfilm. He came out of the situation differently - he simply said that the People's Artist of Russia Shvartsman did not prove that he painted Cheburashka.
V.E.: — A most interesting thing was done there from the point of view of an outrage against common sense. The judge said: “It is written in the credits that there is an artist-winner, and there are still multipliers. So, it was a team, and they all painted together. So, they are all authors, and none of them is a sole author. ” It is how to declare relatives of all children born in the same maternity ward from the collective of women in labor. We know that in the case of Orlova and in the case of Schwarzman, there was a recommendation from above not to satisfy the lawsuit. Do you know what happens to the judges who do not comply with the order from above?
- Do they lose their jobs?
V.E.: - Immediately.
Afterword
After the appearance of an open letter, 15 artists and directors in the Kommersant newspaper, the article “Artists took up the toys”, which set forth the position of the authors of the cartoons, and also talked about the counterclaim of the director of the film Film Fund Vasily Shilnikov, claiming that he has another letter signed More than 40 animators in the Ministry of Culture. According to Shilnikov, in this letter addressed to the Ministry of Culture, “it is said that the multipliers support the initiative of the Ministry of Culture aimed at the implementation of the law, according to which FSUE is the only owner of the rights to cartoons and characters from them (Article 1259 IV of the Civil Code) ; It turns out that the authors contradict themselves. ”
Meanwhile, recently, only one one was written in the memory of famous directors and artists of animation in the Ministry of Culture. And his topic was not at all the expressing of devotion to the film Fund, but the protection of directors and artists of the cartoons (mainly Leonid Schwartzman with his heroes from the Crocodile Crocodile Gene) from Eduard Uspensky, demanding that all the rights to characters belong to him. True, this letter turned out to be a strange story: shortly after its publication, in November 2008, the almost ninety -year -old Schwartzman to universal surprise publicly recalled the signature set under it. In a statement to the Ministry of Culture, he wrote that, signing, he felt bad, he did not immediately understand and so on. But it seems that the other animators signed that letter sorted out even later, and the real meaning of the document, which today is opposed to the “letter of fifteen”, is becoming clear only now.
According to lawyers, the letter, also initiated by the director of the film Fund V. Shilnikov, only for the ignorant in this kind of casuistry looks like a defense from Uspensky. But in fact, the main in it is the last paragraph: “With a real appeal, we, the animators of Russia, support the initiative of the Ministry of Culture to bring a legal order in the use of animated characters ...” Well, further again about Uspensky: “... and call for organizations and private Persons to show prudence and not to acquire from Mr. Assumption rights to use characters that do not belong to him. ” The wise Schwartzman even in his recall of the signature explained: “The law says that the authors of the film and the authors of the works included in an integral part of the film should receive an author's reward for the use of the film and/or works, and that no one has the right to appropriate someone else's work and Alien authorship. I don’t need any other special “guidance of legal order in the use of animated characters”. ” Now we see that a completely different road was lined with the good intentions of the animators, and it seems to be an innocent phrase that “animators support the initiative of the Ministry of Culture aimed at the implementation of the law” received an unexpected continuation: “... according to which FSUE is the only The holder of the rights to cartoons and characters from them. " So, whoever now bought the rights to use your favorite images from cartoons - to draw them, embroider, make soft toys or cheeses - those to whom these character belong by law, that is, the elderly artists who came up with them will not receive Nothing from this.