The personal aspect of artistic creativity has been expressly The copy is the personal reaction of an individual upon More recently, the U.S. Supreme Court in Harper & Row Publishers v. Nation Enters. noted that the right of first publication in the Copyright Act (secs. 106 (1) and (3)) had both a personal and an economic aspect. When Nation magazine published excerpts of President Ford's autobiography before the book itself was published, the author was deprived not only of the economic advantage of first publication but also of his personal interest in creative control, i.e. the form, the time, and the circumstances of his communication of his personality to the public. These interests, the Court held, give the right of first publication a particular resistance to the claims of fair use. The phrase "honor or reputation," found in both article 6bis of the Berne Convention and in the Kennedy bill also suggests an American connection to moral rights. "Reputation" is familiar enough, but protection of "honor" in American law has not been fully appreciated. The right of privacy, for example, is primarily concerned with injury to "honor." The right of privacy, like moral rights, did not exist as a recognized cause of action until the beginning of this century, but it is now commonplace. The first step in the recognition of a cause of action for violation of the right of privacy was the identification of the interest to be protected. This was done in the famous article "The Right of Privacy," by Samuel Warren and Louis Brandeis. In order to convince the sceptical jurists of their day, Warren and Brandeis had to do more than merely argue that it would be "nice" to have certain aspects of one's life kept from public knowledge. What they had to do, and what they did do, was to show how necessary it was for the fluorishing of the human personality to have a zone in which experiments could be tried and in which mistakes could be made in fashioning one's individuality. Thus, Warren and Brandeis 5188 U.S. 239, 250 (1903). The author's control of first public distribution implicates not only his personal interest in creative control but also his property interest in prepublication rights... 'Id. exploitation 471 U.S. 539, 555 (1985). 84 Harv. L. Rev. 193 (1890). of wrote that the right of privacy was based on the principle of "inviolate personality"9 and that it was "part of the more general right to the immunity of the person, --the right to one's personality. 10 The right of privacy is not concerned with whether people think less or better of the person after facets of his personality are revealed to the public. The injury is to the dignity and the autonomy of the individual. Every private person should have the right to reveal his personality when he chooses, to the extent he chooses, and under circumstances that he chooses. 12 a The parallel with moral rights is obvious, so obvious that it is not surprising that Warren and Brandeis used a common law copyright case, Prince Albert v. Strange," as an example of a cause of action that protected the autonomy of the individual as well as the profit motive. The artistically creative act is communication to the public of the personality of the artist. Not only should she have the right to control the time, manner, and circumstances of this communication, but also, since it is a continuing communication, the artist has a right that it be authentic and that it be identified as her communication. Distorting this communication may cause people to think less of the artist, but even if they think better of her, the artist has sustained an injury to her personality. No matter what the reaction of the public to the revelation, the artist suffers the indignity of saying what she did not intend to say. The feeling that prompts the rebuke: "Don't put words in my mouth" comes close to capturing the essence of prejudice to "honor." In addition to the right of privacy, there are other torts that reflect concern with respect for personality. The fact that substantial damages can be recovered in defamation per se even though no economic, physical, or any other kind of definite harm is shown suggests that the interest that is being protected is the plaintiff's honor. This is also true for assualt, battery, false imprisonment, malicious prosecution, intentional infliction of mental distress, alienation of affections, intentional interference with voting, and for invasion of analogous civil rights provided 9Id. at 205. 1oId. at 207. 112 DeG. & Sm. 652, 64 Eng. Rep. 293 (High Ct. of Chan. 1849), aff'd, 1 Mac. & G. 25, 41 Eng. Rep. 1171 (1849). 12warren & Brandeis, supra note 8, at 208. 13Dobbs, Remedies § 7.3 (1973). by statute.14 These latter torts have been identified as protecting personality or interests in personal dignity. 16 15 Finally, the right of personality and its link with "honor" has been recognized in American legal philosophy. Roscoe Pound, for example, as early as 1915, identified three interests of personality: (1) the physical person, (2) honor (reputation), and (3) belief and opinion. Pound was very careful to distinguish the protection of honor and dignity from the protection of substance or assets, but he recognized that they could overlap, defamation, where injury to reputation could take the form of economic loss as well as loss of self-esteem. as in III. The Structure of Federal Protection of the Moral Rights of Visual Artists 17 Since the author's personality is present in all works of artistic creativity, federal protection of moral rights should not be limited to the visual arts. The Berne Convention extends moral rights to all "literary and artistic works, and the new British Act recognizes moral rights in dramatic, musical or artistic works and films. However, there is nothing wrong in principle in proceeding incrementally, as long as it is expressly acknowledged that providing some sort of moral rights protection for a segment of authors neither fulfills our Berne obligations nor provides comprehensive protection. It is also important not to preempt state and common law protection when it provides significantly greater protection. The admission that the Kennedy bill is but the first step can be accomplished easily enough by appropriate statements in the legislative history, but the preemption provision is so worded that there is a very real danger that more comprehensive, existing protection will be preempted. Section 5(f) (1) of the Kennedy bill preempts state and common law rights "that are equivalent to any of the rights conferred by section 106A [rights of attribution and integrity] with respect to works of visual art to which the rights conferred by section 106A 14Id. 15Id. 16 Interests of Personality," 28 Harv. L. Rev. 343, 355 (1915). 17"The expression 'literary and artistic works' shall include every production in the literary and scientific and artistic domain, whatever may be the mode or form of its expression...." WIPO Guide, supra note 2, at art. 2. 18 British Act, supra note 4, at § 2. 20 19 apply." The word "equivalent" is already used in the preemption provision of the Copyright Act of 1976, and it has not been strictly construed to require that the state right be exactly coextensive with the federal right. Thus, it is arguable that the right of pseudonymity, which is granted by the moral rights statute of Senator Kennedy's home state of Massachusetts, would be preempted as "equivalent" to the federal right of attribution contained in the bill. Since the World Property Organization (WIPO), which administers the Berne Convention, has taken the position that the right of attribution includes the right of pseudonymty, the result would be to lessen the compliance of American law with article 6bis. Doubtless there are other examples in the nine states that have enacted comprehensive moral rights legislation. More reassuring was the language of one of the earlier versions of the Kennedy bill: "Nothing in section 106a [rights of attribution and integrity]...preempts the common law or statutes of any State except to the extent that such common law or statutes would diminish or prevent the exercise of the rights conferred by, or the implementation of, section 106a....23 22 A. Works Protected If incrementalism is to be the way that comprehensive federal protection of moral rights is to be introduced, it is logical to begin with that class of works which would be lost by irreparable physical changes, viz., paintings, drawings, and sculpture existing in a single copy. It is also logical to extend protection to multiples, such as prints and multi-cast sculptures in limited editions, since each print or each casting can be said to be unique, despite the fact that it will resemble the other prints or castings. It is not logical, however, to include limited edition prints and multi-cast sculptures in limited editions and not to include photographs in limited editions. It is commendable that the Kennedy bill goes beyond nonsubstitutable works in also protecting reproductions of paintings, drawings, and sculpture, although the limited edition qualification is not easily rationalized. In the case of a print, multi-cast sculpture, or photograph, the limited edition criterion supports the determination that each print or casting is unique. 1917 U.S.C. § 301 (1989) [hereinafter Copyright Act]. 20Nimmer, Copyright § 1.01[B] (1988). 21 Mass. G.L.A. c. 231 § 85S (d) (Supp. 1987). 22WIPO Guide, supra note 2, com. 6bis.3. 23s. 1619, 100th Cong., 2d Sess. § 10(e), version marked 10/17/88. In the case of a reproduction, such as a photographic print of a painting, claims of uniqueness are irrelevent because all faithful copies are fungible; therefore, there is no need to limit them to a certain number of copies.. The rationale for protecting reproductions is not that they are unique works of art, but rather that the reproductions should portray, as much as they can given the medium of reproduction, the expression of the artist's personality as found in the original. This rationale does not justify restrictions to limited editions, since concern for fidelity of reproduction may be present even if there is mass reproduction. The global exclusion of works made for hire in the Kennedy bill is also unjustifiable given the narrow scope of works protected. Since the moral rights in the Kennedy bill apply to the owners of copyright and to the owners of the material object in which the work is embodied, the work for hire exclusion must be justified on reasons that do not equally apply in those circumstances. In the case of paintings, drawings, prints, and sculptures existing in single copies, moral rights would be violated by physical acts done to the works themselves. In the employer/employee relationship, it would seem that there would be little need to commit such acts. Ordinarily, the acts would consist of acts done to copies of originals in the process of making reproductions. In the case of a publication, for example, it is ordinarily not necessary to alter the original in order to reproduce it in a different form in a newspaper or magazine. Furthermore, the right of faithful reproduction in the Kennedy bill only applies to limited editions of 200 copies or fewer; therefore, it would not apply to newspapers and magazines of mass circulation. In the case of commissioned works, it is again difficult to see why there should be a need for a special freedom to make physical changes to a painting, drawing, print, or sculpture that does not exist in the case of owners of copyright and the material object. The usual case would seem to be publications that use commissioned drawings, but, as in the case of the employer/employee relationship, the question would be one of faithful reproduction, and the Kennedy bill only applies to reproductions in limited editions of 200 or fewer. In any event, the above analysis suggests that the proponents of the work made for hire exclusion should have the burden of showing how the limited moral rights recognized by the Kennedy bill would pose insurmountable problems in their undertakings. 24 24It is not readily apparent how a sculpture could fit the definition of work made for hire as a commissioned work. See 17 U.S.C. at § 101 "work made for hire." |