Senator Dennis DeConcini August 4, 1989 As a member of Congress who believes that we should not pass laws just because someone asks us to and because they won't do any harm, why should be enact moral rights legislation? Answer 1. Contrary to your assertion, my written statement deals with each of the points you raise in Question 1. First, there is clear authority in American law that a work of art embodies the personality of the author. On page 3 of my statement, there is a quotation from the 1903 case of Bleistein v. Donaldson Lithographing Co. in which Justice Holmes recognizes that a work of art expresses the artist's personality. This is reiterated (also on page 3) in the 1985 case of Harper & Row v. Nation Enters. in which the U.S. Supreme Court stated that the right of first publication in the Copyright Act of 1976 protected the personal interest of the author in creative control. The concept of moral rights is nothing but a logical implication of this recognition. (The rest of Part II of my statement is devoted to showing other proofs of recognition of the personal aspect of artistic production.) Although federal copyright law recognizes the concept of the work of art as expression of the artist's personality, it has not clearly recognized moral rights. On page 1 of my written statement, I give two examples of the current failure of American law to accept the implications of its recognition that a work of art is the expression of the artist's personality, viz., the stabilizing and repainting of a Calder mobile in Pittsburgh's airport and the destruction of Tom Van Sant's mural--neither of which could be prevented under contemporary law. Such examples, of course, could be multiplied and are often cited in the relevant literature. The recognition that a work of art embodies the personality of the artist has not caused any serious problems in U.S. law to my knowledge. Since moral rights are not clearly recognized in in federal copyright law, there have not been serious problems. In the ten states that have adopted moral rights statutes, there is no evidence of serious disruption. Second, the last paragraph on page 1 of my written statement explains how the recognition of moral rights will benefit society. Current federal copyright law is based on the premise that artistic production will be encouraged by assuring artists a commercial reward for their efforts. As Judge Lumbard recognized in the 1976 case of Gilliam v. ABC, artistic Senator Dennis DeConcini August 4, 1989 production will also be encouraged by assuring artists that their work will not be altered or destroyed with impunity. Third, it is obvious that federal moral rights protection will help preserve our cultural heritage by allowing the producers of that cultural heritage to prevent alteration and destruction of their work. Fourth, Congress did not vote to adhere to the Berne Convention on the basis that American law complied with the language of article 6bis; rather, it took the position that since the laws of other Berne members did not comply with the language of article 6bis, a lesser degree of protection was sufficient for Berne membership. Thus, Congress deemed the "requirements" of article 6bis to be other than the language of article 6bis. Having redefined the requirements of article 6bis so that some evidence of moral rights protection was enough, the spotty protection of moral rights in the United States in the common law, under the Lanham Act, and in eight (now ten) states qualified. I protested against this sleight of hand in my September 30, 1987 testimony before the House Subcommittee on Courts, Civil Liberties, and the Administration of Justice. When the degree of moral rights protection afforded by American law is placed alongside the language of article 6bis, no one can honestly maintain that American law measures up. It is hypocritical of the United States to enforce strictly the economic articles of the Berne Convention against noncomplying nations, while at the same time to take a casual approach to article 6bis. Thus, the United States is under a moral obligation to follow the example of the United Kingdom which recently amended its copyright law to conform more closely to the language of article 6bis. In conclusion--and in response to the last part of Question 1--the many instances in which works of art have been altered or destroyed without legal recourse argue for moral rights legislation. The theoretical basis for the recognition of moral rights already exists in American law which has expressly referred to the artist's personal interest in his work. The United States also has a moral obligation to comply with the language of article 6bis of the Berne Convention. The recognition of moral rights will encourage artistic creativity and will help to preserve our cultural heritage. Question 2. You suggest that a federal moral rights statute should not preempt state laws that offer greater protection to artists than Senator Dennis DeConcini 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, A was of Damich Edward J. Damich Associate Professor of Law Senator DECONCINI. Mr. Gorman. STATEMENT OF ROBERT GORMAN, KENNETH W. GEMMILL PROFESSOR 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 market place. 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:] |