The Kennedy bill essentially complies with article 6bis by recognizing the right of attribution and the right of integrity. There is room for improvement, however, in three areas. First, it would be advisable to add language to the right of integrity in order to indicate clearly that unfaithful reproduction would violate the right for limited editions of 200 or fewer even for protected works outside of limited edition prints and multi-cast sculptures. Second, in the case of paintings, drawings, and sculpture in a single copy and in the case of the limited edition prints and multi-cast sculptures covered by the bill, any change caused by physical act to the work should be a per se violation of the right of integrity, since, by definition, the honor of the author is injured. An irreparable, physical change to the work effectively causes the work to be lost and to fail to communicate the author's artistic vision. Such as per se rule is not indicated in the case of ordinary reproductions, since the original is not lost no matter how distorted the reproduction may be. Third, the right against destruction should not be limited to works of recognized stature. Limiting moral rights to works of recognized stature has no justification in moral rights theory or in the Berne Convention, and it is contrary to American copyright tradition to condition rights on artistic merit. Such a limitation does not exist in French law or in the recently enacted British Act. Presumably, the "of recognized stature" criterion was motivated by concern over law suits stemming from the destruction of insignificant works, such as a child's drawing. (Because of the narrow definition of works protected in the Kennedy bill, the right against destruction would not be extended to mass reproduced works.) It is curious, however, that the "of recognized stature" criterion is not imposed on the right against distortion, mutilation, or other modification, yet it is quite easy to imagine a child's drawing being mutilated rather than destroyed. If the "prejudicial to honor or reputation" qualification is sufficient to make law suits unattractive in the case of the right against modification, it would seem to be equally serviceable in the case of destruction. It would seem that just as courts are capable of distinguishing between a pinch and an amputation in the case of pain and suffering, they would be equally capable of distinguishing between the indignity of the destruction of a child's drawing and Tom Van Sant's mural. The right of attribution recognized in the Kennedy bill does not measure up to the requirements of article 6bis nor does it provide comprehensive protection. WIPO indicates that the right of attribution envisioned by the Berne Convention has the following components: (1) the right to claim authorship, (2) the right to publish pseudonymously or anonymously, (3) the right to reject pseudonymity and anonymity, (4) the right of the author not to have his name associated with a work that is not his, and (5) the right of the author not to have his name associated with a work that he 25 did not create. The Kennedy bill does not provide for anonymity or pseudonymity at all. C. Assignment, Waiver, and Consent The most courageous and realistic provision of the Kennedy bill is the provision that makes the moral rights recognized by the bill nontransferable and nonwaivable. This is consistent with WIPO's interpretation of article 6bis, and it is required to avoid making federal moral rights legislation an exercise in futility. Without such a provision, given the bargaining power of most authors, the waiver or transfer of moral rights would soon appear as boilerplate in all contracts. Inalienability of certain rights is not foreign to American copyright law. The power of termination of transfers and licenses granted by the author, found in section 203 of the Copyright Act, states in subsection 5: "Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant." The power of termination is the successor to the renewal provision of the 1909 Act, of which former Register of Copyrights, Barbara Ringer, stated that Congress provided because it recognized that "authorpublisher contracts must frequently be made at a time when the value of the work is unknown or conjectural and the author (regardless of his business ability) is necessarily in a poor bargaining position. 1126 Nontransferability and nonwaivability do not surrender others to the whims and caprices of authors. The meaning of nontransferability is that some one other than the author may not exercise the author's moral rights when he is capable of doing so. The meaning of nonwaivability is that the author cannot contractually bind himself not to assert his moral rights. This does not mean that the author cannot consent to what would ordinarily be a violation of moral rights, but it does mean that he cannot be held to his consent if he changes his mind before the other party has detrimentally relied. For example, if an author consents to an irreparable change to his work of visual art, he cannot sue once the change has occurred. Not enough thought has been given in the Kennedy bill to whether it is appropriate to adopt wholesale the copyright 25WIPO Guide, supra note 2, at com. 6bis.3. 26Ringer, "Renewal of Copyright," in Studies in Copyright (1960), excerpted in Latman & Gorman, Copyright for the Eighties: Cases and Materials 207 (2d ed. 1985). infringement remedies in the Copyright Act as remedies for violation of moral rights. There is no problem with injunctions, but the language of the Act regarding monetary damages is not apt regarding the kind of interests protected by moral rights. As has already been pointed out, violations of moral rights are more akin to violations of the right of privacy, defamation per se, and the other right of personality torts; thus, the Copyright Act's provisions for recovery of actual damages and profits would often be inappropriate. In many cases, the author would be limited to statutory damages, but the amount of statutory damages in some cases would be too high ($200 for the mutilation of a child's drawing?) and in other cases would be too low (only $100,000 for the intentional destruction of a Jasper Johns painting?).' Moreover, statutory damages for American works could be precluded by nonregistration. 29 28 It would be a better solution to leave the calculation of monetary damages to the courts, as long as they have been instructed about the nature of the interest protected. It should be noted that monetary damages have not been awarded in an entirely arbitrary and irrational manner in the case of such right of personality torts as the right of privacy; rather, the courts have focused on factors such as whether the tort was committed publicly; the nature, motive and extent of the defendant's conduct; and the plaintiff's own motives and misbehavior.` It also seems appropriate for the court to consider the value of the work. E. Duration The adoption of the copyright term for the duration of moral rights in the Kennedy bill is consistent with the requirements of the Berne Convention, but it may very well be argued that by doing so the secondary benefit of moral rights protection, viz., the preservation of our cultural heritage, is weakened. Since there is no register of culturally significant paintings, drawings, prints, and sculpture, in most cases fifty years after the author's death no one will have standing to prevent the destruction or mutilation of such works. Furthermore, a work of visual art does not any less express the author's personality fifty-one years after his death. Therefore, the possibility of perpetual protection should be seriously considered. Moral rights in France are perpetual, and in the United States, even today, common law copyright is perpetual. The constitutional requirement that 2717 U.S.C. § 504(b). 2817 U.S.C. § 504 (c). 2917 U.S.C. § 412. 30See generally, Dobbs, supra note 13. copyright protection be for "limited times"31 is not an insurmountable obstacle, since the copyright clause was directed at what we would now call the economic rights as distinguished from the moral rights. Moral rights, as we have seen, are more akin to torts protective of the personality. If moral rights are to be made perpetual, however, it would be prudent not to make the legislation recognizing them part of the Copyright Act. The Kennedy bill is a commendable first draft for moral rights of authors of works of visual art. There is nothing wrong in principle with opting for incrementalism by beginning protection with works of visual art narrowly defined. The most serious concern, though, is that its preemption provision will actually reduce the scope of moral rights protection that already exists in some states, including New York and California, states well-known as centers for the arts. Lesser concerns are: (1) the exclusion of photographs of a limited edition of 200 or fewer; (2) the limitation of protection of the fidelity of reproductions to limited editions of 200 or fewer; (3) the seemingly knee-jerk exclusion of works made for hire; (4) the limitation of the right against destruction to works "of recognized stature;" (5) the exclusion of anonymity and pseudonymity from the right of attribution; and (6) the "bad fit" that results from applying the Copyright Act provisions for monetary damages to moral rights violations. None of these lesser concerns, however, are serious enough to reject the bill, since they are all susceptible to remedy by later amendment. When these concerns are united to the preemption provision, however, moral rights advocates will have to seriously consider whether they will be in a better provision after the bill becomes law. 31.S. Const., art. 1 § 8. George Mason University School of Law (703) 841-2600/FAX (703) 841-7112 3401 N. Fairfax Drive Arlington, Virginia 22201-4498 August 4, 1989 Senator Dennis DeConcini Subcommittee on Patents, Copyrights and Trademarks United States Senate Dear Senator DeConcini: Your follow up questions to my June 20, 1989 testimony on the Visual Artists Rights Act of 1989 (S. 1198) reached me while I was out of the country. Please forgive this tardy response; I hope that my answers will still be useful. Question 1. I take it from your statement that you are a strong supporter of a unified and comprehensive system of moral rights in the copyright law for all artists and creators. You would extend moral rights to painters, sculptors, film-makers, authors, photographers, and all other artists. After reading your statement, however, I am still left with the threshold questions of "why". You seem to give four reasons, neither of which I find persuasive for a wholesale and drastic change in our copyright law. First, you say that "federal protection of moral rights of visual artists is based on the recognition that works of visual artists communicate an aspect of the artist's personality." But you fail to tell us how such recognition is lacking presently or what problems such recognition has caused. Secondly, you tell us that moral rights benefits society, but do not give us any explanation of how. Thirdly, you say that moral rights will help protect our cultural heritage without any explanation. And lastly, you make an argument expressly rejected by this subcommittee and the Congress as a whole last year, namely that express moral rights in our copyright law is required by the Berne Convention. |