rights claims will look to European and other foreign precedents and positions to give content to the rights.17

The litigious nature of our society, coupled with the questions inherent in radical change in the law, leave little doubt that destabilizing uncertainty and an avalanche of litigation will result from the incorporation of the moral right whether under the minimalist approach or under the approach proposed in H.R. 1623, which contains general provision for the moral right. Even without Federal recognition of the moral right, creative litigants have already on numerous occasions raised moral right claims. Judicial acknowledgement that the doctrine is not recognized in this country has undoubtedly discouraged countless additional lawsuits.

The risks inherent in the moral right litigation will be high. The moral right is grounded in the author's reputation. Injury to reputation is non-economic and difficult to quantify. Such non-quantifiable injuries have frequently resulted in unpredictable and astronomical jury verdicts with tenuous relationship to the loss. Injunctions against publication may impede the flow of works to the public.

Publishers are all too familiar with reputational damages awarded in libel cases. According to the Libel Defense Resource Center, a not-for-profit information clearinghouse which monitors developments in libel law, the mean damage award in media libel actions tried between 1980 and 1984 was in excess of $2 million, higher than cases involving provable physical injury. 18

The members of the Coalition, of course, do not object to providing credit to authors where appropriate and possible. The identification of authors in published versions of their works is described by the Ad Hoc Working

17 See, e.g., Crimi, 89 N.Y.S.2d at 816-18 (examining French law and the language of Berne to give content to droit moral, before deciding that the moral right did not then exist under U.S. law); Vargas, 164 F.2d at 526 (plaintiff invoked foreign law).

18 See LDRC Bulletin Nos. 9 (January 31, 1984) and 16 (March 15, 1986). For example, a Las Vegas jury recently awarded more than $19 million in libel damages to Wayne Newton, of which $5 million was for "loss of reputation" and an additional $5 million was for punitive damages.

Group Report as a "prevailing practice."19 Moreover, authors, like performers, may contract in particular cases to obtain control or veto over the final commercial version of their work.

But recognition of legitimate author interests based upon industry practice and contract is quite different from imposing such rights generally by force of law. As described below, in many cases such powers in the author are inappropriate and not reasonably accommodated. From the examples which follow, the Subcommittee will understand that editing for collective works such as newspapers and magazines, illustrating with drawings or photographs, revising long-lived textbooks, or (as in the case of the Reader's Digest) condensation of books and articles into new "derivative" forms require editorial freedom -- especially when decisions must be made fast for publishing deadlines. That is true both in the case of commissioned works and works by regularly employed authors.

1. The Paternity Right.

The paternity right, as mandated by Berne, creates potential problems for publishers because of the number of persons who could claim to be an "author" for many types of works. Newspapers and weekly news magazines involve the work of large teams of people, including correspondents, stringers, researchers, writers, editors, and layout artists. For example, news magazines frequently survey the nationwide impact of a particular issue, such as the effect of AIDS, by sending queries to several bureaus in major cities. From these collected reports, a team consisting of a writer, editor and researcher "write" the story.

Similar team effort is needed for the production of television news and other programming. While "credit" is given where editorially possible and appropriate, 20 the

19 Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 Colum.-VLA J.L. & Arts 513, 552 (1986) [hereinafter "Ad Hoc Report"]. Citations to the issue of the Columbia-VLA Journal containing the Ad Hoc Report will be to "Colum.-VLA."

20 The difficulty of paternity claims in the context of news reporting is demonstrated by Peckarsky v. ABC, 603 F. Supp. 688, 697-98 (D.D.C. 1984) (rejecting a claim for air credit as preempted by the Copyright Act). In examining the companion contract claim, which was not preempted, the court (continued...)

recognition of a paternity right in each such potential "author" would require an index of unmanageable size. 21

Moreover, the work product of any given individual may or may not be reflected in the piece as finally published or performed. The added burden of identifying the authors of the finished product, at the risk of violating a "moral right," would encumber the timely presentation of the news and other information to the public.

and

Many publications purchase photographs for particular stories from "stock houses" or photo agencies. These agencies frequently do not provide information on the identity of the photographer. Use of such agencies the resulting efficiencies and cost advantage drastically curtailed if the photographer of a photo so supplied could surface following publication and demand damages for the failure to credit his work. 22

-

could be

20(...continued)

found it necessary to undertake the difficult task of examining the extent of plaintiff's contribution to the story.

21

In addition, some members of the Coalition develop large databases with contributions from numerous correspondents and freelancers. Information from these databases is then published. It is unclear whether the contributors to the databases would be considered authors entitled to claim paternity.

22

The complexities of photographic paternity rights are demonstrated by a case currently being defended by Time Inc. in Brazil. In that case, a Brazilian publisher published a photograph of Nazi war criminal Joseph Mengele. The publisher had obtained the photograph from Life magazine, where it originally appeared in 1981. The Life photo had been taken, with full license, from video footage used in a television program produced in England. The footage in question had been obtained from a Czech film crew. The English producer had advised Life that the Czech film crew did not wish credit for use of the photo. The plaintiff in Brazil, previously unknown to Life, claims that he took the film footage and is demanding unspecified damages for the failure to provide credit.

13.

Adoption of the paternity right could also work a

serious change in the broadcasting industry. Radio stations rarely identify the composer or lyricist of popular musical works. A recent memorandum by the WIPO and UNESCO

Secretariats concluded "[t]he failure to indicate the names of the authors of the works performed in such cases is an infringement of the authors' moral right. 23

2. The Integrity Right.

The integrity right poses even greater risks to the dissemination of information.

a. Newspapers and Magazines. Newspapers and magazines of necessity extensively edit contributions and crop and lay out photographs and illustrations to achieve consistency of substance and tone and to conform to space requirements. The tight deadlines under which such publications routinely operate require that editorial decisions be made quickly. Even where a publisher has obtained total rights to use articles or photographs, it is impossible to obtain, for each particular use, the consent of the author in the exercise of his moral right. The author may not be known or promptly found; and, if the authors are several, the problem is compounded. To allow authors and photographers to second-guess such decisions under penalty of litigation and liability undeniably will frustrate prompt publication and clog the editorial job. 24

23

Memorandum of the Secretariats, "Questions Concerning the Protection of Copyright and the Rights of Performers in Respect of Dramatic, Choreographic and Musical Works," Doc. No. UNESCO/WIPO/CGE/DCM/3 (March 6, 1987), reprinted in WIPO, Copyright: Monthly Review of the World Intellectual Property Organization (WIPO), No. 6 at 207 (July, 1987). Although some members of the Committee of Governmental Experts considering the issue expressed reservations, the general principle was accepted. Report of the Committee of Experts, Doc. No. UNESCO/WIPO/CGE/DCM/4 (adopted May 15, 1987), reprinted in WIPO, Copyright: Monthly Review of WIPO, No. 6 at 185 (July, 1987).

24 In addition, many publications that use photographs use airbrushing to limit the risk of liability by making subjects unrecognizable. One person's legitimate airbrushing may be another's prejudicial alternation.

The news media in the United States, including newspapers and weekly news magazines, provide immediate coverage of uncompromising quality for late-breaking stories. This style of journalism is not possible in nations that adhere to Berne, in large measure because of the delays and editorial compromises required by droit moral. That editorial freedom and its public benefit should not be sacrificed.

b. Broadcasting. Preparation of works for commercial television necessarily entails cutting for insertion of commercials, time limitations or indecency concerns. The producer, director, scriptwriter or other author of a motion picture or program could delay presentation by objecting to such cuts or the inclusion of 25 commercials.

c. Adaptations. Recognition of the integrity right presents special problems with respect to publication of adaptations even where the author has granted the right to make the adaptation, as from book to motion picture or stage. 26

For unless the adapter, exercising the grant, makes an adaptation acceptable to the author, the author,

25 Such claims have been made even in the absence of the moral right. See, e.g., Autry v. Republic Productions. Inc., 213 F.2d 667 (9th Cir. 1954); Preminger v. Columbia Pictures Corp., 49 Misc. 2d 363, 267 N.Y.S.2d 594 (N.Y. Sup. ct.), aff'd, 25 A.D. 830, 269 N.Y.S.2d 913, aff'd, 18 N.Y.2d 659, 219 N.E.2d 431 (1966). These cases, which were decided on contract grounds, would have been far more difficult to resolve under the moral right.

26 Cf. Geisel, 295 F. Supp. at 345, 357 (S.D.N.Y. 1968) (Dr. Suess objected to dolls based on cartoons to which he had transferred all rights on the ground that "the toy dolls destroy the artistic integrity of plaintiff's original work and are so inferior in quality that the use of plaintiff's name in connection with them is disparaging and damaging to him." The court did not address the integrity claim and rejected the defamation claim, finding the dolls "attractive and of good quality."). Testimony before Congress in 1934 described a situation where Warner Bros., after purchasing the motion picture rights to Wunderbar and paying an additional sum to the authors to acquire rights to change the story, were met with a demand for an additional $100,000 on pain of preventing European distribution. Kilroe Statement at 70.