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Senator Dennis DeConcini
August 4, 1989
Page Four

does the federal law. If this were the case, artists in one state may receive much greater protection than artists in another state, even after the adoption of a federal moral rights statute. One argument that proponents of a federal moral rights statute advance is the need for national uniformity. Wouldn't this argument be negated by your preemption suggestion? Answer 2.

If the Kennedy bill were not to preempt state laws that afforded greater moral rights protection, there would be national uniformity in the sense that artists would be minimally protected in all jurisdictions rather than in just ten states. There would not be uniformity, however, in the degree of protection. There are many instances where federal legislation sets the minimum standard, but the states are free to enhance protection, e.g., state "blue sky" laws and federal securities regulation.

Thank you for the opportunity to further explain my positions. Your continued interest in the moral rights of authors is gratifying. Please do not hesitate to contact me if I can be of further use.

Sincerely,

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Senator DECONCINI. Mr. Gorman.

STATEMENT OF ROBERT GORMAN, KENNETH W. GEMMILL PRO.

FESSOR OF LAW, UNIVERSITY OF PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PA

Mr. GORMAN. Mr. Chairman, Senator Kennedy, it is an honor to be invited to testify before the committee today.

I have been a member of the faculty at the University of Pennsylvania for 25 years. During that period I have taught courses on copyright and on legal rights of artists and authors. I am deeply committed to the purposes of the copyright system, the promotion and dissemination of information on the arts, the enrichment of our cultural heritage, and the support for literary, artistic, and musical creativity

I should disclose that for the past 3 years I have been serving as a consultant to the law firm of Proskauer, Rose, Goetz & Mendelsohn, based in New York and Washington, and recently in that connection I have undertaken a study of moral rights and the impact that moral rights would have on our cultural, information, and entertainment industries-films, publishing, music, and the like, at the request of an ad hoc group of producers and publishers.

I speak to the committee today not as a spokesperson of the law firm or for this group, but as an independent academic whose initial enthusiasm for moral rights has, on further study, become somewhat tempered and replaced by doubts about the wisdom and feasibility of incorporation of comprehensive moral rights into the American legal system.

I want to say that when I use the term "comprehensive moral rights legislation," I mean to separate myself from a discussion of the visual arts bill recently introduced. I have relatively little difficulty with the concepts and implementation of that bill. I am speaking about the application of moral rights more generally to a wide range of the cultural and arts and entertainment industries in this country.

On reflection--and somewhat reluctantly, I might say-I have reached the conclusion that comprehensive moral rights legislation would likely be ill-advised. I believe it would unsettle longstanding, successful, and productive contractual and business arrangements; may threaten investment in many cultural and entertainment vehicles, and therefore their public dissemination and the resulting enrichment of our cultural heritage; and would conflict with fundamental American rules of copyright law, contract law, property law, and even constitutional law, and may, in fact, inhibit creativity rather than advance it.

To understand my position, I would like to provide an overview and just articulate three particular features that characterize the arts, entertainment, and news industries in this country.

First of all, most of these industries are intensely collaborative. Theatrical and television film involves a producer bringing together a director, a screenwriter, a cinematographer, a composer, designers, actors, and actresses, and the like. The producer's investment of funds and creative ideas brings the work to the marketplace. Collaboration also typifies the production of news magazines, newspapers, and many books, particularly in the educational field.

A second feature of our cultural and entertainment industry worth pointing out is that in very large degree they are driven by the opportunity to exploit works through certain subsidiary channels. Theatrical films are shown on broadcast and cable television, by satellite, in airplanes, in foreign languages, and sold and rented in cassette and disc forms. Persons will be encouraged to invest in the production and dissemination of these works only if there is some assurance that these subsidiary uses will be available and that these works can be brought in many forms to the marketplace without fear of intervention by any of the contributing collaborative authors.

A final aspect of these industries, as has been noted by the Senators this morning, is that the rules and regulations guiding these industries are determined by a network of privately negotiated agreements-sometimes by individuals, but sometimes by sophisticated and strong collective bargaining representatives. It seems to me that a case must be made by the proponents of moral rights that the presently existing system of contractual arrangements which brings a variety of works to the American and foreign marketplace is not working successfully and is causing some pervasive injustice. It seems to me that the burden of changing these contractual rules that now govern these industries and the marketplace for entertainment and cultural vehicles-the burden of showing that this network is not working effectively must rest with those who believe that Government should intervene and comprehensively change the prevailing rules of law.

I see that the light has turned red. I don't know if my time has been tacked on to that of Professor Damich; it apparently has not.

Senator DECONCINI. Nice try, Mr. Gorman. [Laughter.]

I am sorry that we have to conclude, but we do have a number of questions we want to ask. Your full statement-

Mr. GORMAN. I intend to file a full statement with the committee within the next week.

[The prepared statement of Mr. Gorman follows:]

STATEMENT OP ROBERT A. GORMAN

Kenneth W. Gemmill Professor of Law

University of Pennsylvania
Before the Senate Subcommittee
on Patents, Copyrights and Trademarks

June 20, 1989

Mr. Chairman and Members of the Subcommittee:

I am honored to be here today as an invited witness to discuss with you the subject of moral rights, principally within the film and publishing industries and outside of the field of singular works of art dealt with in Senator Kennedy's recently introduced bill, s. 1198, the Visual Artists Rights Act of 1989.

I have been on the faculty of the University of Pennsylvania Law School for twenty-five years, and have regularly taught courses on Copyright and on the legal rights of artists and authors. I have for the past three years also served as consultant to the law firm of Proskauer Rose Goetz & Mendelsohn, in which capacity I recently prepared a memorandum on the subject of moral rights at the request of an ad hoc group of representatives of film producers and book and magazine publishers. That memorandum afforded me an opportunity to explore more deeply the arguments for and against the introduction of comprehensive moral rights legislation in the United States. I offer my comments today not as a spokesman for the law firm or for the ad hoc group but rather as a scholar who has studied, taught about and written about moral rights.

I am deeply committed to the purposes of our copyright system: the promotion and dissemination of information and of the arts, the support of literary, artistic and musical creativity, and the enrichment and preservation of our cultural heritage. Proponents of moral rights legislation are generally motivated by the same objectives. They believe that the arts will be nourished and protected by granting the rights of paternity (or attribution) and integrity. Nonetheless, my own study of moral rights and of the U.S. cultural and entertainment industries to which comprehensive moral rights legislation would be applied gives me great pause.

I have reluctantly reached the conclusion that such comprehensive legislation is likely to be ill-advised. It is likely to be impracticable in its application; to be unsettling in its impact upon longstanding contractual and business arrangements; to threaten investment in and public dissemination

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of the arts; to sharply conflict with fundamental U.s. legal principles of copyright, contract, property and even constitutional law; and ultimately to stifle much artistic creativity while resulting in only the most speculative incentives to such creativity.

I should like, at the outset, to point out certain characteristics of the arts and entertainment industries -particularly motion picture films (both theatrical and television films) and book, newspaper and magazine publishing -- that are pertinent to moral rights legislation.

Most of the product of these industries is intensely collaborative. In film, for example, the producer brings together a director, screenwriter, designers of sets and costumes, cinematographer, composer, actors and all manner of technical and creative contributors. The producer takes the economic risks, and exercises business and commonly creative control.

Magazine and newspaper publishing is also a collaborative enterprise, where there must be centralized business and creative control in order to coordinate -- often under the most exigent time constraints -- the work of news writers, feature writers, photographers, layour designers and others. Book publishing, particularly educational publishing, is also collaborative, with the publisher exercising essential control from overall planning to the details of content and writing and pictorial style.

The second pertinent feature of the arts and entertainment industries is their utilization of their works in a variety of subsidiary" uses. Motion picture films are shown not only in theaters, but also on broadcast and cable television, over satellites and on airplanes, and in foreign nations, and they are marketed in cassette and disc form through rentals and sales. These uses contemplate all varieties of editing in terms of time-frame and content, commercial interruptions, dubbing in foreign languages, and the like.

Published books are also commonly exploited through revised editions and in subsidiary markets, including updated versions, abridgments, foreign-language editions, television and theatrical film versions, and adaptations that take advantage of new technological advancements, such as audiotapes (for trade books) and computer materials (for educational books). Educational books also contemplate frequent revisions, in order to update text and pictorial content.

This wide variety of revisions and adaptations of all kinds has made the so-called "subsidiary" uses in fact often the principal determinant of whether an artistic or entertainment vehicle will become profitable, will attract investment, and will therefore be developed and marketed to the public at all.

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