intimately involved with the creative process and who are vitally interested in Berne's moral rights requirements. Second, we will hear from a law professor who is a leading advocate for moral rights law. As always, we are quite interested in the varying points of view that relate to the subject. We believe this will serve to illuminate the important issues underlying adherence to Berne and educate us about the critical decisions that we must make in the near future within the context of the Berne and possibly outside of it, for their are other issues, other applications of these principles that may be affected whether or not we adhere to Berne. Does my colleague have any opening statement? Mr. MOORHEAD. No, Mr. Chairman, except to welcome our witnesses today and tell them that we all look forward to continuing these hearings that we have been involved with for some time now and learn as much about the area as we can. We want to do that which is in the best interest of our country which includes protecting the rights of Americans in the copyright area. This is one of the fields that we have really surpassed many other parts of the world in. Our balance of trade has been good in the area of innovation, and writings, and motion pictures and many other similar items that we export abroad. We want to go forward and protect them as much as possible, so we are interested in your viewpoint on this. Mr. KASTENMEIER. I know you join me in welcoming to the subcommittee four distinguished artists who will testify as a panel. The first is Sydney Pollack, the director of such well known award winning firms as, "The Way We Were"; "Out of Africa"; "Tootsie." Mr. Pollack is appearing on behalf of the Director's Guild of America. Second, Mr. Frank Pierson, with whose work we are, I think also very familiar. He won an Oscar for his screen play for "Dog Day Afternoon" and also wrote such acclaimed films as "Cool-hand Luke" and "Cat Ballou." Mr. Pierson is appearing on behalf of the Writer's Guild of America. Another witness is William A. Smith, a very distinguished painter and printmaker whose work has been displayed in virtually every museum in this country and certainly many abroad. Also, we have another distinguished director who will want to make a contribution, I am sure, Mr. Elliott Silverstein, who has also directed some distinguished work and presumably collaborated with Mr. Pierson in terms of Mr. Pierson's writing "Cat Ballou," among other notable-many notable films he has directed. In any event, we are delighted to have you and we will start with whomever you would like. I guess we will start with Mr. Sydney Pollack. TESTIMOMY OF SYDNEY POLLACK, ON BEHALF OF THE DIREC- Mr. POLLACK. Good morning, Mr. Chairman, and Members of the I would like, if I may, to submit a official written statement by the Directors' Guild for the record, and then, if I may, I have a very brief oral statement on behalf of myself as a freelance motion picture director and a member of the guild. Mr. KASTENMEIER. Without objection the 13-page statement in behalf of the Directors' Guild of America will be accepted for the record and you may proceed as you wish. Mr. POLLACK. Obviously, I am not a lawyer or a copyright expert. I am very grateful to have this opportunity to testify before the subcommittee to express my own very strong support for United States adherence to the Berne Convention. I think just as an individual, as I hope you do, that the U.S. ought to be a part of Berne because, among other things, Berne is the international copyright treaty of real repute. If as American's we want the United States to exert any kind of real leadership in the copyright debates, then I think we must make credible our position in the international forum. I think as I hope you all do, that the United States ought to be a part of the Berne, because as a leader, as an exporter of some of the best and most influential music, literature, graphic art, motion pictures and software, we surely ought to be entitled to the same protection as the artists and originators of other member countries. After all, our art, and our software, our music and our literature, and motion pictures are as high or higher quality as anyone else's, and I think they ought to be just as protectable. How do we assume leadership without granting those artists and originators in other countries at least as much protection in the United States for their work as they enjoy in their own country and other countries belonging to Berne. The debate before this committee is whether to grant artists the right to protect their works and their reputations. Fundamentally, this is a debate about the value society places on the integrity of artistic endeavors. For the record, Webster's defines integrity "as entire or untouched, an uncompromising adherence to a code of moral artistic or other values; the quality or state of being complete or undivided." Our Constitution grants to the individual the right to have his writings protected, and the purpose clearly is to motivate the artists to create, to encourage creativity, if you will, but because our society is economic based that protection has been translated primarily into economics, protection for the financiers and proprietors. Part of that is good; business needs to be protected but, surely now that is not the whole intention. Surely the underlying foundation for that law, like most others in the Constitution, is in the spirit of the individual as well, that individual creativity should be equally rewarded by protection. It seems to me the United States ought to be a signatory to Berne just to make those statements of artistic support, but compliance with Berne, would be an empty gesture unless Congress clearly articulates a proper standard of protection for creators. We don't have that now. Berne's goals are twofold; the protection of economic rights and the protection of the individual's artistic rights. The treaty, without a moral clause would be a treaty with no teeth, a treaty telling us to do something and giving us no tools with which to do it. To give a copyright holder or proprietor the protection and not assure clear and definite protection of the artists reputation is an obvious violation of the spirit of Berne. This treaty did, after all, grow out of a literary conference in 1974, chaired by Victor Hugo. You have heard testimony to the fact that currently the United States law is sufficient to protect the artists. It simply isn't. You have also heard that the defamation law and certain statutes protect the artists; and they do not. With the exception of extreme cases of blatant and outrageous misrepresentations, there is almost no consistent across the board protection in the United States against the alteration or mutilation of an artists work. If I am a sculptor commissioned to do a work by you, by a committee, by a building, and they hire another sculptor later to alter or change my work, or they change it themselves, except for seven states among our 50, I have no where to go to ask for protection, and even in those seven states, it is highly debatable that I would receive any. If I am author of a book who for whatever reason wishes to remain anonymous and the publisher publishes my name, there is no statute anywhere that protects me. If I direct a motion picture and the studio that distributes it wishes after it is released to reselect and change the background music, to rearrange the scene, to put the beginning at the end and the end at the beginning, to cut sections of the picture or to tint it all blue or pink, I have no legal redress whatsoever. These rights have all been signed away in the employment contract. Since the contents of all motion pictures artists contracts contain clauses signing away the artists copyright to the studios the very clear inference is sign it away or you don't work. Let's be clear about this. The people who tell you that current U.S. law is sufficient are really saying, look, we kind of understand that U.S. law doesn't really go very far in protecting artists. What we really want is that half a billion dollars of pirated motion picture money back. That is getting taken away from us and we ought to have protection against it, but let's not get involved in the area of moral rights because they would take some control out of our hands vis-a-vis the artists. This hearing is on the Berne treaty. It has at the heart of it the spirit of redress for damage done to an artist's reputation. We can't talk about Berne and not talk about moral rights. In the approximately 100 years, give or take a few, since it is inception, most of our allies have adhered to Berne. The reason we haven't is because of the focus of our copyright law on economic rights as opposed to rights of personality, and our businessmen are afraid. They are saying are we going to somehow disrupt economic rights. Clearly this has not been so in other countries. The proprietors tell you and us that this is going to upset all their contracts, that they are going to have artists overlooking every editorial decision. They have told you that is the unworkable. Come on-it has worked fine in other countries, in France, Italy, and Germany, and every other Berne country. There magazines come out on time, deadlines are met, books are published, motion pictures flourish and proprietors make a lot of money. The treaty creates a distinction between economic rights and the rights of authors to protect their work. This is a tricky question here. As motion picture directors we have no intention whatsoever of upsetting the economic rights, that is the marketing, the licensing, the buying, the selling, even the decision as to whether to exhibit, rests solely with the employer or the proprietor or the studio or whatever you want to call them. Our concern as artists is subsequent to the time at which the film has begun to live in some form of exhibition. Then it is a reflection of us when it had acquired an edit. Then our reputations are at stake. Then that is our livelihood; that is when it concerns us. How can we say, yes, we will adopt Berne but we don't want moral rights. That says we want to make the choice but not pay the price. We want to squeak by. What a sad commentary on this society if we finally ratify a treaty, the very essence of which is protection of individual artists, and what we ended up doing was strengthening the economic interests of the proprietors and employers and left the artists with the status quo, which is minimal protection at best, and in most cases no protection at all. This is a treaty that resonates with protection of the artists. That is what it is all about. We would have joined the treaty, but in terms of exercising moral leadership, what would have have accomplished? We would have gone half way. I hope you agree all of us want eventually a society in which value is put on as high a plane as price. Are motion picture art? Well there is no question that but that the treaty regards them as such. Article 14 is entirely devoted to cinematographic art, and certainly there is no question that the rest of the world thinks so. The United States has two indigenous art forms, Mr. Chairman, an only two, invented, implement and define by Americans, motion pictures and Jazz. Both held in higher esteem elsewhere than here. That is also a said curiosity about us, that the motion picture, our own invention, should be more respected in every other country in the world. That is a fact. Further, Mr. Chairman, and members of the committee, motion pictures are our only truly uncontested and totally welcome cultural ambassadors everywhere in the world. For much of the world the first and most vivid exposure to American culture, values, society has been and will be through our movies. We communicate with even our most volatile enemies through this universal language. We know there is no present without a past, and no future without a present, that our best commitment to the present is understanding the past and that our greatest hope for the future is in understanding the present. Motion pictures help us do that. They are the record of who we are and are, what we thought then and think now, the best and the worst of us, why we hope and what we dream. They are at their best as someone has said, the truth at 24 frames per second, and they are frozen in time for every, totally accurate, bearing perfect witness and they deserve to remain so. Now if they are art, and I believe there is no question about that, then who for Heaven's sake is the artist. Surely with all due respect not the stockholders. Clearly, the artists or artists are those people who say choices define the shape and the texture, the style and tone of what the art is. After all, that is what art is made of, choices, nothing else, the series of choices that are first managed and then implemented. If you change the choices you change the impact and therefore the value of the work of art and therefore the reputation of the artist, the way that artist is perceived by society. To exempt motion pictures from protection because they are work for hire, which has been suggested seems to me to misunderstand totally the process of creativity. If you confuse business acumen with artistic empluses and skill, that would be a tragedy. If you exempt people who are employees, then you exempt us as you would have exempted Leonardo and Mozart, all workers for hire. If you do that then the art of motion pictures has no artistic protection. That is the art from that has become a valuable cultural heritage. It is an indigenous art form, Mr. Chairman; it is an American art form. Are we going to leave it outside the umbrella of legal protection? Thank you. [The statement of Mr. Pollack follows:] |