art work does not mean that moral rights should be applied to mass produced collaborative works, such as films, magazines, books, etc. As Congressman Robert Kastenmeier, co-author of the Visual Artists Rights Act of 1990 noted, "there are critical factual differences between visual artists and film artists. Visual artists generally create only one or a limited number of works. They are generally not works for hire. Film artists on the other hand are part of a collaborative effort to create multiple copies of a work, and they generally are works for hire. These factual differences have important legal consequences." (Opening statement of Honorable Robert Kastenmeier, Hearing on "Moral Rights and the Motion Picture Industry," Subcommittee on Intellectual Property and the Administration of Justice, January 9, 1990.) Senator Edward Kennedy, Senate sponsor of the Visual Artists Rights Act, stated upon introducing S. 1198, "This bill addresses a narrow and specific problem - the mutilation and destruction of works of fine art which are often one of a kind and irreplaceable." The adaptations regulated by H.R. 3051 do not mutilate or destroy the original expression but use technological adaptation. For example, it is significant that the first step in colorizing a film is to clean, repair and preserve the original film print. Then the film print is copied onto a video cassette. It is this video copy which is colorized. V. The requirement to publish specific labels contained in H.R. 3051 raises significant First Amendment questions. The First Amendment and the Copyright Clause share the mutual goal of increasing the flow of information to the public. This important Constitutional goal is thwarted by both the labeling and notification requirements in H.R. 3051. The legislation requires pejorative labels to be affixed to a film materially changed after initial release and its advertising and promotion. The rigid requirements to publish contained in the bill are troubling under the First Amendment. Even in the case of commercial speech such as the advertising associated with the film, the litmus test for the protection of commercial speech, laid out by the Supreme Court in Central Hudson Gas and Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980) is that the restrictions on speech must be the least intrusive to serve the governmental interest asserted. The requirements of H.R. 3051 are overbroad, unnecessary and likely to confuse consumers. In addition to the bill's rigid requirement to publish pejorative labels prescribed by the government, the chilling effect of the notification requirements on re-publication smacks of prior restraint. VI. The provisions of H.R. 3051 are incompatible with the Lanham Act. Mr. Chairman, this bill is masquerading as a consumer bill. In fact, it is nothing of the kind. Colorized versions of films are labeled as such to ensure the consumer is not confused. Section 43(a) of the Lanham Act already provides remedies to ensure that consumers are not deceived. As Mr. Steven Spielberg noted in his 1988 testimony before the Senate Subcommittee on Patents, Copyrights and Trademarks, the Lanham Act *protects the consumer" from misrepresentation.' The relief being sought in this legislation relates to alleged director, screenwriter and cinematographer's rights beyond traditional copyright law and contractual terms. Accordingly both the U.S. Trademark Association and the Patent and Trademark Office (PTO) of the U.S. Department of Commerce concluded that H.R. 3051's provisions are not compatible with the Lanham Act. The PTO, in a March 1989 report to Congress, recommended against amendment of Section 43(a) of the Lanham Act to create a specific right for film artists to prevent alterations. The PTO based its position on two reasons: first, that section 43(a) is functioning in the way that Congress intended - as a broad uniform law of unfair competition and secondly, that it would frustrate the work made for hire doctrine applicable to motion pictures under U.S. copyright law and film industry contractual practice. 'Hearing of the Subcommittee on Patents, Copyrights and Trademarks. Committee on the Judiciary, United States Senate, on S1301 and S1971, "The Berne Convention," Senate Hearing 100-801, p. 503. Conclusion Mr. Chairman, the Committee for America's Copyright Community opposes H.R. 3051. The alleged benefit this bill would presumably provide to the principal director, screenwriter and cinematographer should not be at the expense of the public's access to works of art. Passage of H.R. 3051 would be a dangerous precedent which would strike a blow to our thriving copyright system. Congress should continue to reject efforts to recognize moral rights in collaborative, published works of art, such as films, newspapers, magazines, books, advertising and computer software packaging. The U.S. is a world leader in these areas. Proposals such as H.R. 3051 are on a collision course with our very successful copyright system and threaten to bring the dissemination of copyrighted works to a grinding halt. Members of The COMMITTEE FOR AMERICA'S COPYRIGHT COMMUNITY The American Film Marketing Association Association of American Publishers Association of Independent Television Stations, Inc. Association of National Advertisers The Dun & Bradstreet Corporation Harcourt Brace Jovanovich, Inc. Information Industry Association International Communications Industries Association Magazine Publishers of America McGraw-Hill, Inc. Meredith Corporation Motion Picture Association of America, Inc. National Association of Broadcasters Paramount Communications, Inc. The Reader's Digest Association Recording Industry Association of America, Inc. Time Warner, Inc. Times Mirror Co. Training Media Association Tumer Broadcasting |