Statement of Roger L. Mayer competitive in the entire world and which enjoys an extremely favorable balance of payments. The retroactive application of these concepts is in all likelihood unconstitutional, and their prospective application raises serious public policy questions. We urge this Subcommittee to carefully consider these issues during any future deliberations on the "European system of moral rights." RECEIVED JUL 1Z 1989 A. R. G. APPEAL AGAINST THE JUDGMENT OF 7) La Fédération Européenne des Réalisateurs de l'Audiovisuel (F.E.R.A.) 8) Le Syndicat Français des Réalisateurs de Télévision C.G.T. 9) Le Syndicat National des Techniciens de la Production Cinématographique et de télévision 10) La Société des Auteurs et Compositeurs Dramatiques (S.A.C.D.) Vs. The Public General Prosecutor before the Paris Court of Appeal Translation by Serra & Associés FACTS AND PROCEDURE OF 1ST INSTANCE) On the 2nd May 1950, the American company, LOEW's Inc, parent of the film company METRO-GOLDWYN-MAYER (M.G.M.), obtained from the Copyright Office in the UNITED STATES a registration certificate conferring on the company the copyright in the film "ASPHALT JUNGLE" directed by John HUSTON and filmed following a screenplay written by himself and Ben MADDOW ; The copyright was renewed on 2nd May 1977 by M.G.M. after a change in the corporate structure of LOEW's. Succeeding to the rights of M.G.M. in its "library" on 5th August 1986, the company TURNER ENTERTAINMENT Inc. made a colorised version of the "ASPHALT JUNGLE" for which it was granted on 20th June 1988 by the American Copyright Office a registration certificate; It is in these circumstances that the 5th Television Channe! (LA 5) announced on 28th June 1988 the broadcast of the colorised version of the film which, however, the judge of summary committal prevented by an order dated 24th June 1988, at the request of the HUSTON heirs and Ben MADDOW, on the grounds that such a broadcast would lead to intolerable and irreparable damage against those defending the integrity of the work of HUSTON ; This decision was confirmed by a decision of the Court of Appeal of Paris on 25th June 1988; Moreover, by an action dated 30th June 1988, Angelica HUSTON, [widow] of the deceased director, Daniel and Walter HUSTON, his sons, and Ben MADDOW sought a fixed hearing in order to obtain an injunction against LA 5 preventing it from proceeding to broadcast in its colorised version, not only the "ASPHALT JUNGLE" but also any work of which John HUSTON was the author; LA 5 contested the admissibility of the claim, and TURNER, voluntarily joining the action as principal party, claimed that as sole author of the litigated work, it had the sole right to exercise the moral right in the work in France; For the other side, the SOCIETY OF AUTHORS AND DRAMATIC COMPOSERS, the French Syndicate of ACTORS, the European Federation of AUDIOVISUAL DIRECTORS, the Society for DIRECTORS OF FILMS, the French Syndicate of TELEVISION DIRECTORS and the National Syndicate of TECHNICIANS FOR FILM PRODUCTION and TELEVISION intervened to oppose TURNER on the grounds that TURNER's arguments attacked the rights of creators ar.d artists; Transiation by Serra & Associés THE APPEALED JUDGMENT By its judgment of 23rd November 1988, the Tribunal de Grande Instance de Paris: declared admissible so far as it concerned solely the television broadcast of the colorised version of "ASPHALT JUNGLE", the action of the HUSTONS and Ben MADDOW and the voluntary intervention of TURNER declared at the request of LA 5 that LA 5 renounced any broadcast of the said version and, so far as necessary, injuncted LA 5 from proceeding to such television broadcast rejected the remainder of the claim rejected the claim of TURNER APPEAL On 5th January 1989, TURNER appealed against the judgment and was authorised to take a fixed day, which it did on 25th January 1989, requesting all of the parties to appear at a hearing before this chamber on 12th May 1989; The summons asked the Court to overrule the judgment on the principal grounds that the HUSTONS, who did not qualify as authors of the film "ASPHALT JUNGLE", were inadmissible to invoke a moral right which they did not possess, and secondarily that colorisation constitutes an adaptation in legal terms, that the right to adapt is a patrimonial right which belongs to TURNER and which the HUSTONS, in the absence of a defective adaptation, which was never alleged, could not paralyse the exercise of the right by invoking the moral right to which, in itself, colorisation caused no harm; TURNER claimed from the HUSTON estate the sum of 50 000 Francs on the basis of Article 700 of the New Code of Civil Procedure; In other written arguments submitted on 9th May 1989, TURNER asserted again the above arguments specifying that the identification of the author of the litigated film must be carried out by applying the law of the United States of America, the country of creation, and requesting the Court to judge that by virtue of the above mentioned law and agreements, the identity of the author belonged Translation by Serra & Associés not to the HUSTONS and Ben MADDOW, but to TURNER, the successor in title to M.G.M./LOEW's, and that the recognition of TURNER as the author did not cause any harm to the conception of French Public Order in the realm of author's moral rights; On 10th May 1989, LA 5 asked the Court to overturn the appeal judgment, by saying that it was not contested that the protection of the integrity of the work "ASPHALT JUNGLE" in the French territory was dependent on French law, but that the question of the identity of the author was a matter for the country of origin of the work, CALIFORNIA, and secondly that French Public Order could not be used in effect to challenge in FRANCE a Californian law which determined the identity of the author of the film "ASPHALT JUNGLE" ie. TURNER, and not the HUSTONS/Ben MADDOW, who cannot invoke any moral right in FRANCE; It was also claimed that colorisation constitutes a legal adaptation in the sense of the law and conventions and that in the absence of any particular harm spelt out by the plaintiffs, the Tribunal could not consider the concept of colorisation itself as an affront to moral rights. LA 5 concluded that it would give the following undertakings: to set out before any broadcast, in a special declaration, that the colorised version of "ASPHALT JUNGLE" produced by TURNER is an adaptation of an original work filmed in black and white; to broadcast, at the time the film is scheduled, a notice reminding television viewers that they have the ability not to watch the film in colour by using the colour control knob on their television; LA 5 brought an action against the HUSTONS/MADDOW and the intervening parties for the payment of 1 Million Francs in damages and 50 000 Francs under Article 700 of the New Code of Civil Procedure; The HUSTONS/MADDOW sought for the re-affirmation on 11th May 1989 of the appealed decision and for the condemnation of TURNER to a payment of 100 000 Francs pursuant to Article 700 of the New Code of Civil Procedure. They emphasized that the solution adopted by the first judges in granting the benefit of a moral right under French law to the physical person who contributed to the creation of the work was an imperative whether on the basis of the body of international_conventions applicable to copyright, or even outside such conventions. In particular, they emphasized that the United States of America had just adhered to the Berne Convention which took effect immediately with respect to contentious issues which were not yet resolved as well as extracontractual situations arising subsequently to its entry into force and they based their claim to authorship on a sole reference in Article 14 bis-2-a of the said Convention under the terms of which "the determination of the holder of the copyright in a cinematograph work is reserved to the legislation of the country in which the protection is sought" ; Translation by Serra & Associés |