there something to that notion of a public interest in promoting the amount of access to that film? Mr. STANLEY. What a thing to ask. You know, if a had a couple of shots, I would probably go along with you, but I honestly cannot say it now. Mr. BERMAN. Well, with lunch coming up- Mr. STANLEY. The thing is, if the thing-let me explain this. Mr. STANLEY. Let me explain something to you. As a Congressman, if you brought forth something that you worked your tail off, that you consider is one of the finest points of your work, for example, in a piece of work, and somebody took your name out of it, how would you feel? Mr. SYNAR. It happens everyday. Mr. BERMAN. Well, you raise a very interesting point, because that is one of the problems, I think, that the representatives and the leaders of the creative community have in talking about this issue to Congress. Our staffs, I mean, there is no God-given moral right to the words our staffs craft in our name for our ownership, our exploitation, our use without any attribution whatsoever. We do do a lot of that and as Mike said, we also steal each other's ideas with basic impunity. But still this point about weighing the extent to which the technology did not allow, at that particular time, the kind of adaptation to television that would have showed that scene in the way that you filmed it. And then the second question is, what if I came back to you as the owner of the film and said, "Look, you got this legislation. I need you to sign off." I assume that is what you are asking for, a right to sign off before they lop that guy off. "I cannot do it any other way. I want to show this film, but I will give you a check for $10,000. Let me lop this guy off and show this film on television." I know that the world of economics never tramples in the area of moral rights, but is this something that could sway? Would you still need two shots to give your consent if you could get some money? Mr. STANLEY. You are getting into an area, we are being very, very frivolous. Mr. BERMAN. No, I am not. I am not. I am wondering. Mr. STANLEY. Ten thousand dollars is not frivolous, but-Mr. BERMAN. No, no, no, this point of, should the legislation we craft allow the parties who would presumably have some kind of creative control to be bought out of their creative control? Mr. STANLEY. You see, I feel, this is an expression of my own, that you are going to get into this kind of a problem. You have to allow or bring about an arbitration procedure. You have to empower an expert panel of arbitrators-those who know the art of filmmaking and all its aspects. Mr. BERMAN. I understand what you are saying then. You want some third party, the production company on one hand, they own the copyright. They want to exploit this thing as much as possible. They want to make as much money as possible about it. Maybe the artistic questions involved are going to become subordinate to making the money. Especially if there is no money involved, maybe the artistic concerns are going to become paramount to the creators. Maybe some third party process is involved in deciding what is an acceptable material alteration, rather than giving you control. Mr. STANLEY. Yeah, you are getting closer to it, because you see, the thing that is the most depressing is that the production company, as the owner of the copyright, has absolute power over the fate of a motion picture. What's worse, is that their sole interest is in making more money. This is how terrible it has gotten. No wonder we're worried that filmmaking, as we know it, is being destroyedat present, no one besides the studio is even consulted. My feeling is, come up with a panel, come up with some people who I would respect to make a decision on this. Mr. FLEMING. Congressman Berman, as counsel for the ASC, our position is that moral rights, however they might be defined by Congress, should never be bargained away. It should be against public policy. And, therefore, any contract to bargain them away, should be void. That is our position. Mr. BERMAN. So that there is no basis for waiving this right for- Mr. FLEMING. Absolutely, absolutely. Mr. BERMAN [continuing]. Pecuniary consideration. Mr. FLEMING. Whatever moral rights Congress defines. Mr. DOERING. Congressman Berman, the Guild concurs in that position. We really see the central issue in this is the right of the author to object as per the Berne Treaty. And we suggest that arbitration is a way of enabling the artist to exercise his rights. And at the same time we believe it is a form of, as we said in our statement, dispute resolution that is more efficient than the court system. And it would enable these kind of decisions to be made by a panel of expert artists who would be deciding the questions based on moral rights and determining whether harm has been done to one's reputation and honor. Mr. BERMAN. But the right to trigger an arbitration is different than the right to object and, therefore, prevent. So, which is it? Is it a veto or is it a right to trigger a third party dispute resolution mechanism? ASD thinks it is right to make a binding objection. Mr. FLEMING. Well, we have gone on record saying, "No, we do not believe in veto power." There has to be a way around it. That has been our position. Mr. BERMAN. That is different than Mr. FLEMING. There has to be around it, whether a third party- Mr. BERMAN. Whether it be arbitration, whether it be anything, there has to be some way around it. Mr. FLEMING [continuing]. Negotiations. Who has the final say, because in the end, again that is a problem. Mr. BERMAN. Well, is a right to consultation enough, if we legislated that. Where you have not been able to bargain that provision, legislating a minimum level of consultation by the copyright owner with the relevant guilds or people, individuals involved, is that an enhancement? Mr. FLEMING. We think that is a big step. Mr. FRAKER. It is a major step forward, because at least you have a right to- Mr. FLEMING. We do not have that today. Mr. BERMAN. The directors do, but you do not. Mr. DOERING. Right, and we would concur with what you are saying, Congressman Berman, in the sense, yes, consultation is critical. And it would seem to us, that out of that consultation may come something that, you know, would lead to a binding decision by a neutral body. Mr. BERMAN. Thank you, Mr. Chairman. Mr. SYNAR. Can I just ask one question. Mr. KASTENMEIER. The gentleman from Oklahoma. Mr. SYNAR. Since it was your point that it is not a money or monetary decision, it is more of a reputation and honor decision that you are trying to object to or protect, I mean, I am not any expert, again as I said in my opening statement. I hope that gave me great room and latitude here today. I do not think that there is an actor or actress that we could bring up here today that would not say that is what they want, that objective power, because their honor and reputation is that which is on the film. So, I mean, when I asked the panel earlier whether or not the actor and actress should be there, there was no interest in letting them 'be there but yet, the right that you are trying to protect, I think would be the major argument every actor and actress that would come up here would make the same argument. Mr. DOERING. I think the answer to your question is that could well be, but as has been stated previously, the actors are quite confident and appear to be satisfied with putting that particular issue in the hands of the directors. And I do not see any actors here at this point. I cannot speak for them, but I think that we are trying to deal with, at least as the ASC people have said, from our standpoint of who are the key creative authors and I do not believe, you know, that this has been articulated from the actor's point of view, at least before your committee. Mr. KASTENMEIER. I think we should also state that panning and scanning and colorization do not directly involve the actors as much as they involve cinematography. Mr. BERMAN. Except for that guy who got lopped off. Mr. SYNAR. I think that they would argue that. I think that the actors that we have visited with in Washington are very-Jimmy Stewart is very offended the by way he looks in color in "A Wonderful Life." He thinks the whole tenor of his performance is changed by that act. But the point is that he would like that same ability to object. In other words, I do not want to speak for him. Actors in general have never had, who have been in my office in the privacy of my quarters, given me any assurance that they feel confident that their rights are protected by anybody who has testified so far or will testify today. Mr. STANLEY. I cannot deny him, but I cannot speak for him on the basis of-I am here really to talk about cinematographers, about the―― Mr. SYNAR. I am not asking you to take on their position. I am just Mr. FRAKER. You know, in the past, in the past, there have been a lot of actors who have had cinematographers under contract for that very reason, to protect their so-called rights. Mr. SYNAR. So do politicians. Mr. FRAKER. And also, you know, a lot of camera men are chosen because they can photograph one person better than the other. You know, it is all part of it. Actors are marvelous. Actors are actors. Mr. KASTENMEIER. If there are no further questions, that concludes the hearing this morning. We thank this panel, Mr. Fraker and Mr. Stanley and their colleagues who are here, for contributing as much as they have on this panel. It has been very informative. The committee will stand in recess until about 1:45. We will try to get started by 1:45 if we can, for the afternoon session, at which time we will hear from the third panel. [Whereupon, at 12:15 p.m., the subcommittee recessed, to reconvene at 1:55 p.m., the same day.] AFTERNOON SESSION Mr. KASTENMEIER. The meeting will come to order. Before we start with our third panel, it is my understanding that a member of the International Photographers Guild or a representative, would like to make a very brief clarification of the testimony given earlier. Yes, sir. Mr. DOERING. Thank you, Congressman Kastenmeier. Yes, I would like to say that, without taking away any of the emphasis concerning the importance of cinematographers, a principal author of feature films, it seems clear that we have to face the question that was raised near the end of the last session. And that is, if the director were the only author of a motion picture as per legislation, it is our opinion that cinematographers would be far better off than they are now. Conversely, it seems to me it would be a real tragedy to have the concept of moral rights jettisoned because of the fear of opening Pandora's box. And I think it is important to state that for the record. Mr. KASTENMEIER. We appreciate your statement. Of course, that deals with a hypothetical in any event. We all understand that, but thank you. Our third panel consists of Joe Dante on behalf of the Directors Guild of America and Phil Alden Robinson for the Writers Guild of America. Mr. Dante has directed many well-known films, including "Gremlins." Mr. Robinson has written the screenplay for the recent hit "Field of Dreams." So, welcome, gentlemen. You may proceed as you wish. I suppose Mr. Dante would go first. STATEMENT OF JOE DANTE, ON BEHALF OF THE DIRECTORS GUILD OF AMERICA Mr. DANTE. Yes, I would also like to introduce Elliott Silverstein- Mr. KASTENMEIER. Who is very well-known to this subcommittee. He has appeared before it. Mr. DANTE. The chairman of the Creative Rights Committee for the past 25 years. Mr. KASTENMEIER. We are delighted to greet him. Mr. DANTE. My name is Joe Dante and I am here representing the Directors Guild of America. Phil and I, together, are here to destroy the motion picture business today and deprive ourselves of future employment as you have heard from others. In 1978, the DGA, sitting at the collective bargaining table, complained about the defacement of films by indiscriminate editing, particularly in syndication markets. Our view was that the studio should be as concerned about their product as Campbells Soup would be concerned about the sales of their soup adulterated by somebody who was selling it. The chief executives of the studios agreed that it was a problem and that it was wrong to cut these films; but, said that it was too big a problem to police. We agreed and said that we would go to Congress. And that is what we did. We felt that there ought to be a law. And unfortunately the grievances that brought us to Congress 3 years ago have not abated significantly. Movies continue to be presented in mutilated versions, panned and scanned, colorized, time compressed, my particular least personal favorite, and substantially reedited. I have, in fact, a 120minute film that ABC network is currently in the throes of finding a way to cut 23 minutes out of, apparently, because they feel that it would be better if it was on in a 2-hour time slot instead of a 21⁄2hour time slot. Nothing really has happened legislatively on either the State or Federal level to retard defacement of films. And if anything, it is on the rise. The debate about moral rights that surrounded the Berne Treaty was very gratifying to us, but we do disagree with the minimalist view which says that existing State laws, the Lanham Act, et cetera, combine to give us low level moral rights, whatever that means. The problem is, there simply is no law to protect the moral rights of film artists, nothing that gives directors and writers the standing to appear in court as required by Berne, and object to the defacement of their work. Therefore, we do not feel that the reforms made to the copyright law to enable Berne adherence are complete. We hope to convince Congress that the reforming process must continue despite the rather large political opposition that is arrayed against us. Many of these corporations, in fact, would have you believe that the granting of moral rights will somehow bring down the motion picture business around our ears. This is a business that took in, I believe, $5 billion plus in the past year. And it seems to us that, since the corporate parties are reaping the financial rewards from Berne, they ought to be required to pay their share. We do have the National Film Preservation Act, of course. And the Directors Guild is proud to be a member of the governing board. And we are very happy that films are finally being recognized as an art form, worthy of protection, which was not the case previously. And a small amount of consumer protection is achieved |