EXECUTIVE SUMMARY During the recent, successful effort to adhere to the Berne Convention for the Protection of Literary and Artistic Works, Congress extensively debated the issue of "moral rights" in general, and as applied to the motion picture industry. The term "moral rights" does not refer to a judgment about a work's morality (or lack thereof). Instead, it concerns the personal relationship of the author to his or her work apart from economic rights. Two of the most important moral rights are the author's interest in having his or her authorship of the work acknowledged ("the right of attribution"), and the author's interest in preventing unauthorized alterations in the work that are prejudicial to his or her reputation ("the right of integrity"). In deciding on the form of implementing legislation for Berne adherence, Congress adopted the "minimalist approach," under which only those changes absolutely required to join the Convention would be made to the Copyright Act. With respect to moral rights, after two years of hearings and consultations with foreign experts, Congress reached the conclusion that the totality of existing U.S. law federal, state statutory, and common satisfied our obligations under the Convention to accord moral law rights. 1 Accordingly, under the minimalist approach, Congress decided against amending the Copyright Act in the Berne implementing legislation to provide for a single, unified, federal system of moral rights. This decision was not, however, based on hostility to moral rights in general, nor to such rights as applied specifically to the motion picture industry. In fact, both Senate and House subcommittees held hearings on colorization and other alterations to motion pictures during the second session of the 100th Congress. In addition, on February 25, 1988, Chairman Kastermeier and Ranking Minority Member Carlos Moorhead of the House Subcommittee on Courts, Intellectual Property and the Administration of Justice 2 requested the Copyright office to inquire into the present and future uses of technologies such as computer color encoding (colorization), panning/scanning, and time compression and expansion ("lexiconning"), and how these technologies affect "consumers, artists, producers, distributors and other affected individuals and industries." We were directed to consult with creators of motion pictures, distributors of motion pictures, broadcasters, consumers, and preservationists. In order to fulfill this mandate, Copyright Office staff visited two companies engaged in computer color encoding of motion pictures as well as a company that modifies theatrical motion pictures for viewing on television. The staff also interviewed representatives of motion picture companies, Turner Entertainment Company, the Directors Guild of America, and the 2 The Subcommittee was formerly known as the Subcommittee on Courts, Civil Liberties and the Administration of Justice. Screen Actors Guild of America. In response to a Request for Information, we received twenty comments from all industry interests, as well as from scholars, preservationists, and other interested parties. On September 8, 1988, we held a public hearing and received testimony from fourteen witnesses representing a broad spectrum of industry and the public. This report represents the culmination of our interviews, of our review of the congressional hearings, the statements submitted in response to our Notice of Inquiry, and the testimony received at our September 8th hearing. The report is comprised of seven chapters and two appendices. The first appendix reproduces the statements submitted in response to our Notice of Inquiry; the second reproduces the transcript of our September 8, 1988 hearing. Chapter 1: Introduction After noting the genesis of this report, the introduction provides an overview of previous Copyright Office actions in accepting claims to copyright in colorized versions of black and white motion pictures. It then briefly notes the issues to be examined, including how the use of technologies permitting the alteration of theatrical motion pictures has affected the interests of creators, distributor-copyright owners, and the public. Chapter 2: Copyright in the Motion Picture and Television Industries The second chapter of the report reviews copyright protection for motion pictures and television programs in the United States and under the Universal Copyright and Berne Conventions. The chapter also examines the various claims for authorship in motion pictures, beginning with a review of U.S. case law, the treatment of authorship under the 1976 Copyright Act and the Berne Convention, as well as the national legislation of France, the Federal Republic of Germany, and the United Kingdom. This review serves as background for a discussion of the position of U.S. motion picture directors that, for purposes of preventing material alterations to their works, the principal director and principal screenwriter should be considered the "authors" of the motion picture. This position is based on a number of arguments; first, that the principal director is the single individual primarily responsible for the actual composition of the picture; second, that only the principal director and principal screenwriter are involved in "telling the yarn;" and, finally, due to the large number of individuals involved in creating a motion picture, it is impractical to grant rights to everyone; hence, since a line must be drawn somewhere, the principal director and principal screenwriter represent a logical place to draw that line. We then give the response of academics and motion picture industry representatives to the directors' arguments. Testimony by a law professor |