Summary of the Statement of Monroe E. Price House Judiciary Committee June 21, 1988 To the extent the moral right of artists is tied to their relationship to consumers, I favor a policy of mandatory labeling of films to disclose whether they are works that are different from the originally issued film in significant ways. Colorization is one such significant alteration, but not the only one. I do not believe these remedies should be provided only for films of the greatest artistic significance, but should exist for all films. Any colorized or otherwise significantly changed film should be appropriately labeled whether or not the director consents to the colorization. I believe that a labeling requirement should apply to films already in existence. Much more difficult is what should occur, beyond disclosure, for a group of motion pictures that may warrant greater protection, i.e. films which, in the terms of the Mrazek bill, are "culturally, historically, or aesthetically significant." The idea here, a valuable one, I believe, is that a society can take extraordinary steps to protect its most valuable treasures. The question is the degree of protection against distortion that government should impose. One possibility is to have a narrow category of protected films and, as to those, prohibit colorization or other forms of distortion whether or not the artistic author of the film consents. Congress could also act affirmatively to strengthen the availability of untouched originals of culturally, historically or aesthetically significant works without impeding the production of colorized works. For example, federal law could provide that as a condition of registering colorized derivative works, the highest possible quality of the original would have to be restored and made available through deposit with the Register of Copyrights. It is also possible to require that in exchange for colorization, the producer must relinquish the original black and white from which the derivative work is made to the public domain at an earlier date. A third way of achieving this goal is an American version analogous to the droit public payant under French law, in which a royalty on the colorized version is placed in a fund for the restoration of the American film heritage. If a National Film Commission is established, its responsibilities ought to have a study and reporting component, much like those of CONTU. I would give the Commission two additional responsibilities; I would provide them with an affirmative interest in assisting in building a library of excellent negatives of the most important films of the American motion picture heritage. And I would charge them with reporting to Congress, periodically, on aspects of technological manipulation of film which might meet the standard of distortion or mutilation and which raise possible moral rights questions. The Commission, without taking overt action, could also provide guidance to the industry, and could help Congress and state legislatures concerned about these questions raised by technologies that lie ahead. Mr. Chairman, members of the Subcommittee. My name is Monroe E. Price. I am dean of the Benjamin N. Cardozo School of Law at Yeshiva University. I am a copyright professor by osmosis, having had the pleasure of serving for fifteen years with the late Professor Melville Nimmer on the faculty at UCLA. Indeed, my very first scholarly project at UCLA was working on an international effort, coordinated by Professor Nimmer, seeking to compare the approach of various European countries with the United States in the area of copyright and what was awkwardly called "neighboring rights," including moral rights. Accession to Berne ushers in a new era in terms of thinking about the moral rights of authors. Heretofore, those few scholars who wrote about moral rights had virtually nothing in American law to serve as a hook for analysis. They were like Brandeis and Warren, trying to create a new right, but not so successfully. In the world after Berne, these issues are not so insular, so bizarre, so remote from the skeleton of intellectual property. We shall be part of a convention which appears to encourage moral rights for artists. The legislative record concerning accession to Berne is ingenious in its treatment of the pre-existing structure of moral rights in the United States. Under the inventive "minimalist" approach, moral rights are said to be where they were prior to Berne and they are said to be sufficient for compliance. After Berne, however even under the minimalist approach, it is hard to say that there is no moral right. The minimalist approach is not the nihilist approach. I particularly appreciated the statement of Congressman Howard Berman that "I am troubled, however, that we may not be intellectually honest when we conclude that we can join Berne by deeming U.S. laws to be in compliance, but assuming none of the responsibilities under the Convention to enhance the rights of authors." My own feeling is that courts, interpreting law, or engaged in the growth of the common law, will treat Berne and Article 6bis as an artifact of the legal culture that must be recognized and respected. Thus, my view of the world after Berne is slightly different from those who simply state American law in its present form complies with Article 6bis. This new event, this new involvement with the Berne order means at least the following: our pre-existing law is coupled with a commitment to treat that law as evolving. Moral rights are now worthy of examination and possibly of redefinition. Moral rights are now part of the agenda for discussion. 2 Our national position is no longer that moral rights do not exist. It is rather that there is a body of moral rights law, partly in the common law, partly in state law, partly in federal legislation. The task is not to deny those rights, but rather to articulate them, to fashion what moral rights ought to mean in the American context. Here, I think the felicitous epigram of Ralph Sharp Brown is useful. "We are masters of our fate," he has written, quoting the concluding section of Berne's Article 6bis namely that "Means of redress for safeguarding the rights granted by this article shall be governed by the legislation of the country where protection is claimed." In a sense, this hearing is an example of the changed context in which we think about law. Whether these hearings result in new legislation, they mark a recognition of an international order, to which the United States will be a party, in which rights of integrity, of honor and reputation, rights to assert a moral claim against the derogation or mutilation of an author's work can be made. The idea of rights other than economic rights is a subject for keener inspection. Whether this is a better world remains to be seen. But it is a world we have entered. Given that as background, I should like to turn to the legislative proposals now being considered that speak to the rights of directors and screenwriters with respect to colorization and other activities that can be said to alter, distort, mutilate or derogate from the integrity of a film or the reputation of its author. Rather than speak to technical aspects of each bill, let me suggest some principles: To the extent the moral right of artists is tied to their relationship to consumers, I favor a policy of mandatory labeling of films to disclose whether they are works that are different from the originally issued film in significant ways. Colorization is one such significant alteration, but not the only one. I believe moral rights evolution in this country will come from concern for the consumer more than concern for the creator. This is a reflection on our fundamental values, but it is something we should recognize. That impetus, however, will shape the way rights evolve. And given the importance of the right of paternity, I also favor the right of a director or screenwriter to have his or her name removed from a film if it is modified. I do not believe these remedies should be provided only for films of the greatest artistic significance, but should exist for all films. For example, to the extent it is the consumer's right to an artistic product of integrity that is involved, the requirement of labeling should not depend on a waiver by the director. Any colorized or otherwise significantly changed film should be appropriately labeled whether or not the director consents to the colorization. believe that a labeling requirement should apply to films already in existence. There is nothing ex post facto about a requirement that forces information about a current metamorphosis. I Much more difficult is what should occur, beyond disclosure, for a group of motion pictures that may warrant greater protection, i.e. films which, in the terms of the Mrazek bill, are "culturally, historically, or esthetically significant." The idea here, a valuable one, I believe, is that a society can take extraordinary steps to protect its most valuable treasures. We know this process well in all our cities where there are struggles, through landmark preservation laws, to distinguish those structures that ought not be altered and preclude their owners from acting inconsistently with the public interest. From the perspective of a semiotician, a building, and its visual and cultural relationship to the community, is little different from the relationship between a film and the community. are forms of visual speech. Both The question is the degree of protection against distortion that government should impose. One possibility is to have a narrow category of protected films and, as to those, prohibit colorization or other forms of distortion whether or not the artistic author of the film consents. Congress could also act affirmatively to strengthen the availability of untouched originals of culturally, historically or esthetically significant works without impeding the production of other colorized works. It is also possible to require that in exchange for colorization, the producer must relinquish the original black and white from which the derivative work is made to the public domain at an earlier date. A third way of achieving this goal is an American version analogous to the droit public payant under French law, in which a royalty on the colorized version is placed in a fund for the restoration of the American film heritage. 90-655 0 - 89 - 4 This would be a copyright or moral rights version of the "tax to pollute" concept in environmental law or Robin Hood Meets Casablanca. Producers who wish to exploit the treasure of black and white films by altering them would have to give back a compulsory license so that the asset base--culturally significant American films--remains a vital one. Much of the focus today is on colorization. It is my view that worse fates lie ahead in terms of the technological ability to transform films and raise serious questions about possible violations of moral rights and deception of consumers. If a National Film Commission is established, its responsibilities ought to have a study and reporting component, much like those of CONTU. We are still at an early date in our understanding of the proper relationship between our sense of responsibility in a Berne context and the changing technology in the use and abuse of motion pictures. I would soften the powers of a National Film Commission. I would give the Commission two additional responsibilities: I would provide them with an affirmative interest in assisting in building a library of excellent negatives of the most important films of the American motion picture heritage. And I would charge them with reporting to Congress, periodically, on aspects of technological manipulation of film which might meet the standard of distortion or mutilation and which raise possible moral rights questions. For it is clear, already, that the issues are more complex than colorization or dubbing. Technologies ahead could yield concerns that raise moral rights questions. The Commission, without taking overt action, could provide guidance to the industry, and could help Congress and state legislatures concerned about these questions. In some ways, I would suggest a bill broader and narrower than the Mrazek bill. I would suggest that the labeling remedy be virtually universal, not just for films that are on the registry. As to films which are on the registry, I would provide the Commission with additional authority to take remedial steps, though not necessarily the ones listed in the bill. I prefer an approach that affirmatively works to strengthen the reservoir of American films while interfering as little as possible with the economic growth of the industry. There are some less intrusive, and perhaps less valuable approaches. For example, one notion is to have evolution of moral rights to continue to develop at the state |