STATEMENT OF ROBERT A. GORMAN Kenneth W. Gemmill Professor of Law University of Pennsylvania Before the Senate Subcommittee 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. 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 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. It is I have reluctantly reached the conclusion that such comprehensive legislation is likely to be ill-advised. 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 - 2 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. - 3 A third pertinent feature of the entertainment and cultural industries in the United States is that they have historically been regulated through elaborate contractual arrangements, voluntarily negotiated, and often negotiated on behalf of the principal creative contributors by strong and sophisticated labor organizations. These arrangements establish employer-employee relationships among most of the contracting parties and are negotiated within the framework of the "work made for hire" provisions of the Copyright Act. They commonly deal with such matters as the creative participation of directors, authors and the like in the development of subsidiary and derivative uses, and the credit to be given in connection with the exhibition, sale and advertising of the work. - The principal entertainment and cultural industries of the United States, in summary, are highly collaborative, contemplate and depend upon a wide variety of derivative forms in their distribution to the public, and are historically regulated by individually and collectively negotiated agreements. The introduction into these industries of a right -- exercisable by any one of a host of collaborative contributors to protest the alleged distortion or modification of a particular literary or artistic contribution is extremely problematic. At best, it introduces an element of instability and uncertainty, as well as the frequent possibility, because of the increased threat of litigation, of delay in public access to and enjoyment of entertainment vehicles. At worst, it threatens to prevent altogether the dissemination to the U.S. and international public of a host of cultural and entertainment materials in forms that are varied, appealing and affordable. Any significant limit upon the ability of producers and publishers to disseminate works in these secondary markets -- dissemination which commonly can mean the difference between a losing and a profitable business venture - runs a substantial risk of chilling investment in the arts and entertainment fields, which in turn may reduce the financial support of innovative creative endeavor, a result that will obviously be harmful to the public interest. Introduction of moral rights into these industries (particularly if these rights are statutorily declared to be inalienable and non-waivable) will also unsettle the network of contractual arrangements that have been developed over many years in the various industries, and that appear on the whole to be working quite successfully and fairly. - Before such a drastic step is taken, it would seem that the burden is upon those challenging the present system to show that it has caused serious and pervasive hardships or injustice. The industries under discussion are effectively generating creative works, bringing them to the American public, making them attractive to consumers overseas and thereby aiding dramatically in the U.S. balance of trade. All of these beneficent effects have been brought about through voluntary arrangements in the commercial marketplace. I do not believe that the case has been made for substituting for these arrangements a congressionally granted power of aesthetic veto to a wide range of creative contributors. In sum, it may be that comprehensive moral rights legislation is a drastic cure for what is a relatively undiscernible malady. It is natural to ask whether untoward consequences have flowed from the incorporation of moral rights doctrine into the legal systems of many European and Latin American nations. Many of these nations appear to have flourishing creative communities in the arts and entertainment fields. Surely, however, the United States is the world leader in these fields. Whether that is to any major extent attributable to the greater legal and business flexibility accorded producers, publishers, and other copyright owners and licensees under our legal system is difficult to determine empirically -- as it is to determine whether, say, the creative arts in France or Italy would flourish to a greater degree were moral rights abandoned or sharply limited. One can reasonably assume, however, attributing economic rationality to those who invest in the arts and entertainment industries, that such investment will be promoted under a legal system in which authors--many of them working in the context of collaborations or of employment relationships -- will not be accorded the right to exercise an aesthetic veto over the initial and secondary marketing of films, magazines, books and the like. Owners of Even apart from economic modeling, moral rights abroad have indeed resulted in some odd limitations upon the display and marketing of works by copyright owners and licensees. buildings have been limited in making structural changes or in tearing down walls with murals. In a particularly noteworthy case decided under the Canadian moral rights statute, a sculptor who had conveyed to a shopping center his sculpture of geese in flight was afforded an injunction against the center's bedecking the geese with ribbons at Christmas time. Creators of music in the public domain have successfully challenged the use of that music in motion pictures deemed inconsistent with the political views of the composer, and artists have been permitted to challenge the exhibition of their works in a physical or artistic context they believed unsuitable. A textwriter of a book successfully challenged the publisher's selection of an illustrator on the ground that the illustrations were inferior in quality. A songwriter (apparently after having transferred the copyright to another) has secured redress against the performance of his song with parody lyrics. Courts have been invited to sit in judgment upon the nature and number of commercial interruptions in films shown on television. Set designers have successfully challenged the deletion of a theatrical scene in which their set was to appear, and stage directors have successfully challenged the modification or omission of their stage directions. - 5 Moreover, speaking more generically and summarily, employees have asserted rights over employers in the exploitation of works made for hire, one joint author has been able to stop the marketing of a work prepared along with other joint authors, and authors have been able to override negotiated contract provisions with publishers regarding the editing and marketing of their works. Not to neglect consideration of the right of attribution, foreign courts have ordered radio stations to mention the names of all composers, lyricists, and performers of all broadcast music; have accorded redress to an architect whose name was not mentioned at the ceremony opening his building or in the attendant newspaper articles; and have permitted an author to ignore his contractual promise to produce certain works under a pseudonym. To some extent, then, moral rights doctrine as developed abroad has indeed resulted in some disturbing inhibitions upon the rights of copyright owners and licensees, and property owners, seeking to disseminate or adapt creative works. But it appears that the arts and entertainment industries abroad have learned to live with moral rights by largely ignoring those rights or substantially watering them down. Rights of attribution and integrity have by statute or judicial decision -- not been enforced when a user is taking action that is consistent with "proper usage" or with the "accepted manner and extent" or that is "reasonable" or "de minimis." A most significant limitation upon the integrity right, applied in most foreign nations, is the right given to licensees to make alterations and modifications that are appropriate in light of the nature of the work and the purpose of the use; these are deemed allowable "adaptations" and are distinguished from "distortions," after the court considers whether the modifications preserve the "spirit, character, and substance of the work." In many nations, sharp limitations are placed upon moral rights in certain kinds of works, such as musical compositions, useful articles, computer programs, and materials prepared for news publications or broadcasts. Despite the sometimes recited theory to the contrary, it is commonplace to permit moral rights to be waived, either in written or oral agreements or pursuant to the industry's customs and usages. In almost every foreign jurisdiction that recognizes the right of integrity, the author is required to assert that right in a fair, reasonable and good faith manner; the right will not be enforced if it is asserted "arbitrarily" or "vexatiously" or is "misused." A number of national laws incorporate the doctrine of fair use as a defense against moral rights claims (as with copyright claims), or permit certain educational uses or parodies. Frequent adjustments are made for moral rights asserted by employees, or by joint authors, or by creative collaborators in works such as motion picture films, encyclopedias and periodicals. |