amended section 43(a) to conform its language to the expanded scope of protection applied by the courts, and to resolve certain issues. such as the availability of full statutory remedies and the nature of actionable conduct under the provision, where courts had drawn different conclusions. Notably, Congress resolved these issues in favor of broadening application of the statute, not narrowing it. Second, Congress placed section 43(a) within the body of U.S. law that provides the "equivalent" of moral rights for purposes of meeting U.S. obligations under Article 6bis of the Berne Convention. Berne House Report, supra, at 34, 38; Ad Hoc Report, supra, at 553-4. These actions reveal the sense and intent of Congress that section 43(a) should reach a broad range of conduct involving unfair commercial practices, including cases where such conduct may intrude upon the personal rights of artists. In our view, the creation of a narrow, industry-specific application of the statute to protect the moral rights of certain film artists, or to impose a labeling requirement for altered films, or even to create an exemption for editing to delete obscene material,- would be inconsistent with the Congressional intent that section.43(a) function as a broad-based Federal law of unfair competition. The second reason that we do not favor amending section 43(a) is that it would frustrate the work made for hire doctrine applicable to motion pictures under U.S. copyright law and film industry contractual practice. The motion picture is an archetypal example of the type of work to which the work made for hire principles of the Copyright Act are intended to apply. See section (2) of the definition of "work made for hire" in 17 U.S.C. 101; see also H.R. Rep. No. 90-83, 90th Cong., 1st Sess. 85-87 (1967). The motion picture is a highly collaborative work, involving the artistic services of many persons; to facilitate economic exploitation of motion pictures and make them available to the public, the work made for hire doctrine centralizes all copyright ownership in a single source, commonly the producer of the motion picture. As the "employer or other person for whom the work was prepared, 17 U.S.C. 201(b), the producer is considered the initial owner of all rights in the film, including the rights to distribute copies to the public and to make derivative works such as colorized versions. As noted above, standard contracts in the film industry accommodate this reality -- directors, screenwriters, film editors, cinematographers and others generally cede to the producer the right to all post production uses of their creative contributions, in exchange for which they receive agreed upon compensation. we conclude that an amendment to section 43(a) to create specific moral rights for film creators would impair the functioning of this system. The Copyright Act accords ownership rights to a single entity, the producer. Even in Gilliam, the leading moral rights case under section 43(a), the plaintiffs were the copyright holders. In our view, the creative contributors to motion picture should not have the right, by invoking section 43(a) to an extent beyond its current reach, to prevent economic exploitation of altered works in relation to which they contractually surrendered artistic control. We are sympathetic to the appeal of U.S. film directors and other creative artists for strong, explicit moral rights protection. We also note the Congressional sentiment, evidenced by the recently enacted National Film Preservation Act and by other moral rights proposals considered in recent years, in favor of granting such protection under Federal legislation. Every country of which we are aware that has created moral rights by express legislation, including States party to the Berne Convention, has placed them under copyright. Even the United Kingdom, the first Berne member to satisfy moral rights obligations under the Convention by means of the common law, has dedicated an entire chapter of its new copyright, design and patent statute to moral rights. See U.K. Copyright, Designs and Patents Act 1988, Chapter IV, sections 77-89. We recommend against use of section 43(a) of the Lanham Act as vehicle for the creation of statutory, Federal morál rights. We have concluded that section 43(a) is functioning properly as broad Federal law of unfair competition. If Congress seeks to provide more extensive moral rights protection for film directors, screenwriters, and other artists than is currently 64-867 - 93 - (296) |