Features of legal protection of musical works specially created for an audiovisual work: national and foreign practice

Abstract

The article is devoted to the peculiarities of the legal protection of musical works, which were specially created for an audiovisual work. In particular, the national and foreign practice is compared, the shortcomings of the legal regulation are identified and the directions of its improvement are suggested. The author points out that while film production, film distribution, and television ceased to be a state monopoly, holders of rights to audiovisual works have a real opportunity to use their rights as a commodity for profit. The legal regulation of relations related to the creation and use of audiovisual works lags significantly behind the level of technological development at the present stage, and therefore it is the creative workers must initiate the necessary changes to the legislation. The features inherent in a musical work are: internal completeness, individualization of form and content, fixation of the musical notation, which allows for the possibility of executive interpretation. The basic elements of such a work are harmony, melody and rhythm. However, it is believed that the main element in determining copyright is the melody, because it is impossible to obtain exclusive rights to harmony or rhythm. It was found that if musical work was specially created for an audiovisual work and unless otherwise provided by contract, the author of the work (he is one of the authors of the audiovisual work, but he is not considered a co-author). Even if the author has transferred the property rights of the organization producing the audiovisual work or producer, he still has the right to object to the performance of the work in the case of its separate public performance, ie the author of such a piece of music reserves the right to prevent misuse of his work. It is important that the inclusion of a piece of musical work in the audiovisual work is its use. Therefore, the organization producing the audiovisual work or the producer must obtain permission to use the musical work from the copyright holder (synchronization right) and, in some cases, from copyright holders in the field of related rights (so-called master license) or acquire these rights under contract on the transfer of exclusive intellectual property rights or on the basis of law.