Charlie Rich was granted an injunction under section 43(a) prohibiting RCA from marketing an anthology of songs recorded by Rich ten to fourteen years earlier, packaged with a contemporary photograph of Rich on the jacket. The court found likely confusion of consumers as to the true contents of the package. Similarly, in Benson v. Paul Winley Record Sales Corporation, 452 F. Supp. 516 (S.D.N.Y. 1978), well-known guitarist George Benson brought an action under section 43(a) to enjoin distribution and sale of a recording advertised as "George Benson, Erotic Moods." The defendant had altered old recordings in which Benson appeared as a back-up artist to accentuate his guitar tracks; one selection was overdubbed with the sexually-suggestive moaning of a woman. The record jacket featured a modern picture of Benson. The court enjoined distribution and sale of the recording under section 43(a), stating that it was likely to confuse the public and harm Benson's reputation.

In Jaeger v. American International Pictures, Inc., 330 F. Supp. 274 (S.D.N.Y. 1971), the plaintiff film director claimed that the English version of his German film "Kamasutra Perfection of

Love" had been mutilated and garbled by defendant.

The court

denied defendant's motion to dismiss, finding that plaintiff might be able to prove unfair competition under section 43(a) "in the distribution to the public of a film that bears his name but

at the same time severely garbles, distorts or mutilates his work." 330 F. Supp. at 278.

273

ESS

A high-water mark for protection under section 43(a) against
material alteration of artistic works was Gilliam V. American
Broadcasting Company, 538 F.2d 14 (2d Cir. 1976). The
plaintiffs, members of the British comedy group Monty Python,
concluded an agreement to write and perform for the British
Broadcasting Corporation (BBC); the agreement required that the
BBC consult with the writers before making any but minor script
changes, and forbade altogether any alterations to recorded
programs. Plaintiffs also granted the BBC the right to license
television broadcasts of the recorded programs in overseas
territories. The BBC licensed Time-Life Films to distribute
Monty Python programs in the United States, and granted Time-Life
the right to edit for insertion of commercials, censorship, and
time segment requirements. ABC contracted with Time-Life to
broadcast two ninety-minute specials, each consisting of three
thirty-minute Monty Python programs.

of ninety minutes of program material to be included in the first
broadcast, ABC cut twenty-four minutes. After viewing the
special, Monty Python tried to negotiate with ́ABC concerning
editing of the second special. Failure of these negotiations
resulted in Monty Python filing an action to enjoin the second
broadcast and for damages based on common law`copyright
infringement and violation of section 43(a) or the Lanham Act.
The trial court denied plaintiffs' motion for preliminary

injunction due to likely financial harm to ABC, even though it

found that Monty Python had established an impairment of the integrity of their work and that the damage caused would be irreparable.

On appeal, the Second Circuit found that there was a substantial likelihood that Monty Python would succeed in proving

infringement of their common law copyright in the program scripts, because the editing power granted from the BBC to TimeLife exceeded the editing power BBC had under its own

...

arrangement with Monty Python. With regard to the claim under section 43(a) of the Lanham Act, the court noted that "American copyright law, as presently written, does not recognize moral rights since the law seeks to vindicate the economic, rather than the personal, rights of authors." 538 F.2d at 24. Noting that "courts have long granted relief for misrepresentation of an artist's work by relying on theories outside the statutory law of copyright, such as

... unfair competition," the court saw the Lanham Act as a vehicle to "vindicate the author's personal right to prevent the presentation of his work to the public in a distorted form." Id.

In a widely quoted concurring opinion, Judge Gurfein agreed with the majority's conclusion regarding infringement of common-law copyright, but was uneasy about the Lanham Act claim. He stated: "[T]he Lanham Act is a trademark statute, not a copyright statute. 538 F.2d at 26. He went on to observe that the Act

"is not a substitute for droit moral which authors in Europe enjoy," and that it does not deal with artistic integrity. It only goes to misdescription of origin and the like." Id. at 27. Judge Gurfein also argued that an appropriate label or legend indicating that plaintiffs had not approved the editing done by ABC would remove all doubt as to a violation of secton 43(a).

The Gilliam decision is important because it recognizes the applicability of section 43(a) of the Lanham Act to prevent falsely attributing a materially-altered artistic work to the creators of the original work.

Cases following Gilliam continued to grant relief to artists and authors under section 43(a), although no reported case has expanded Gilliam to prevent alteration of motion pictures beyond other than editing and cutting.

In Follett v. New American Library, Inc., 497 P. Supp. 304 (8.D.N.Y. 1980), plaintiff Ken Follett was hired by British publishing house to edit and refashion the English translation of an original French work, which was released as "The Heist of the Century" with authorship attributed to "Rene Louis Maurice with Ken Follett." Subsequently, Follett published two bestsellers, "The Eye of the Needle" and "Triple." Arbor House acquired American rights to "The Heist of the Century," changed the title to "The Gentlemen of 16 July" and the authorship attribution to "Ken Follett with Rene Louis Maurice," and prepared to release

the work simultaneously with Follett's newest novel, "The Keys to Rebecca. Follett sued under section 43(a) to enjoin Arbor House from publishing the book and using a false and misleading authorship attribution. The court found that defendant had falsely attributed principal authorship of "Heist" to Follett, despite evidence of industry standards indicating that attribution among co-authors is within the publisher's

discretion. Holding that the Lanham Act "is designed not only to vindicate 'the author's personal right to prevent the presentation of his work to the public in a distorted form' (quoting Gilliam), but also to protect the public and the artist from misrepresentations of the artist's contribution to a finished work, the court ordered Arbor House to give equal attribution to Rene Louis Maurice and Ken Follett. 497 F. Supp. at 313.

Section 43(a) was also applied in Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981). There, the plaintiff actor had contracted to star in a film and receive star billing. The distributors removed his name from the credits and advertising and substituted that of another actor. Smith sued for damages under section 43(a). The district court dismissed Smith's claim, holding that the Lanham Act is limited to cases involving passing off one's goods as those of a competitor. The district court found that no competitive relationship existed between Smith and the

distributor. The Ninth Circuit reversed, holding that plaintiff