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Mr. GOLDSTEIN. I was struck that what I thought I was hearing the first panel talk about was the question of moral right. Yet, until I saw the presentation of John Huston on the screen, I didn't hear that phrase used. I don't know if they were studiously staying away from it, or if it was just overlooked. But, to the extent that I can give legal content to the testimony of the first panel, it seems that they are talking to some degree about the continental doctrine of moral right.
I would say, in direct response to your question, that I think it would be wonderful if we began to look at the legal models offered by other countries in responding to many of the same problems that we have here. If anything, copyright policymakers in this country are too xenophobic. We have looked to the United States for the exclusive wisdom of solutions. I would caution, however, on two points.
First, it is common to think of moral right as a unified concept. In fact, it is a multifaceted and a multifarious concept. Moral right is multifaceted in the sense that it covers not only the right against distortion, but in some places a right of withdrawal as well as other rights. It is multifarious in the sense that, although several nations adopt the moral right, none has exactly the same body of law as the other. We must attend carefully, then, to what it is we are talking about when we speak of moral right and recognize as well that we ought not just look at the laws on the books.
German law, for example, might give you the impression that the right against distortion is, in fact, inalienable-that it cannot be waived-and that directors could not waive it even if they wanted to. In fact and in practice, as it works out, it is almost fully, if not fully, waivable.
The other caution I would urge is, if we begin looking abroad for moral right models, we recognize the cultural and political differences that separate many of those nations from the United States. There is a strong cultural tendency in the civil law tradition to honor authors' rights-a tendency that doesn't exist in the United States. It has cultural roots. To the extent that we want to adopt that, it is a noble object, to be sure, but there may be countervailing considerations, one of them being the principle of freedom of contract which has its own cultural content in this country.
The other caution I would add is that the political systems of other countries differ dramatically from ours in one very important respect. The national government, which has enacted the relevant laws on moral right in France, Germany, and Italy, is a thoroughly centralized government. It is the principal lawmaker in those countries. By contrast, in the United States, with our Federal system, important powers are left to the States. Traditionally, interests in reputation-the interests protected by the law of privacy, publicity, defamation-torts have been the preserve of the States. This would be a notable intrusion, I might add, of the Federal Government into what has traditionally been a State concern.
I am not saying it should preclude that step, but it is another caution that might be considered.
Senator LEAHY. Most of the moral rights clauses have really grown up out of court cases. Invasion of privacy is a definition. Mr. GOLDSTEIN. Exactly.
Senator LEAHY. I am going to back up and ask you, am I correct that there is no clear-cut line of court cases that would be applicable to the questions we have heard here today?
Mr. GOLDSTEIN. Well, again, if you are dealing with a case where there is no contract, and it is a public domain work, there is little case law.
Actually, one of the most powerful bodies of case laws supporting this approach is Federal case law under section 43(a) of the Lanham Act.
Senator LEAHY. If we wanted to make clear law in this area of moral rights, we have to write the law anew?
Mr. GOLDSTEIN. That is correct, if one wanted to do that.
Senator LEAHY. If one wanted. I realize that becomes a political question as well as a legal question, of course.
Mr. GOLDSTEIN. It is also a resources question. Do you want to rely on a system that has lots of holes in it but does incrementally protect authors' rights, or do you want to spend the time and place that high on your agenda?
Senator LEAHY. I think you stated the issue very well, Professor. I appreciate it.
Again, I appreciate your taking the time to come here. And once you have received your copy of your testimony back, if there is something additional you want to add, don't hesitate to do so. Let me know and we will make it part of the record because I think more and more, as we look back at this question, that you are going to be seen as the wrap-up hitter. It is your testimony we are going to be looking to.
Mr. GOLDSTEIN. Thank you very much.
Senator LEAHY. We will stand in recess subject to the call of the Chair.
[Whereupon, at 12:20 p.m., the subcommittee adjourned, subject to the call of the Chair.]
Mr. Chairman, members of the Subcommittee.
My name is Edward Damich. I am Associate Professor of Law at George Mason University. I am pleased to be able to submit this testimony for inclusion in the hearings of the Subcommittee on the colorization of black and white motion pictures. views that I am about to express are my own. I am not acting as advocate
for any group.
I am delighted that the Subcommittee has moved so promptly to inform itself and to attempt to identify and prioritize the issues in the colorization controversy. As I see it, the central issue is artistic integrity. 1 do not oppose colorization because I think that modern viewers need a cultural uplift; I oppose it because the motion picture that they will see will not be the motion picture as it was made.
The claim that colorization widens the audience for classic black and
white motion pictures is spurious for the simple reason that viewers will not be seeing those motion pictures at all; rather, they will be seeing distortions of them in colors suggestive of a 1939 World's Fair postcard. (This fact produces a curious dilemma for the colorizers: on the one hand, they must argue that colorizing results in more people seeing the
original--an argument that tends to minimize the effect of colorization on the original; on the other hand, they must argue that the colorized version is sufficiently different from the original to consitute a derivative work--an argument that weakens their claim that they are widening the audience for the original.)
I believe that the authors of motion pictures--as all authors--have the right to have their work presented to the public in the form in which it was created. At a time when the United States is considering adherence
to the Berne Convention with its clear moral rights provision (Article bbis) and at a time when five states have moved in the direction of insuring artistic integrity, it would be anomalous for Congress to withold legal protection for the integrity of black and white motion pictures. Legal protection of artistic integrity, however, is not a matter of accepting a foreign concept. Even our current copyright law--which I admit is primarily aimed at economic rights--recognizes the non-economic or personal dimension of the creative process. The U.S. Supreme Court, for example, recently reiterated that the personal values of privacy and creative control were implicit in the sec. 106(3) right of first publication. Harper & Row Publishers v. Nation Enterprises, 105 S.Ct. 2218, 2228 (1985). As far back as 1976 the U.S. Court of Appeals for the Second Circuit held that a cause of action to protect artistic integrity was implicit in copyright law. Gilliam v. American Broadcasting Cos., 538 F.2d 14, 24 (1976). (That case involved a broadcast of a Monty Python television program. It should be noted that the "mutilation" identified by the court was the showing of the program--the original versions of the program were unaffected by the defendants' actions.) The Copyright Act of 1976 even contains an express provision protective of artistic integrity. Sec. 115, which deals with compulsory licenses for making and distributing phonorecords, provides that "the arrangement shall not change the basic melody or fundamental character of the work."
The Copyright Act's provision for derivative works does not negate the concept of artistic integrity. The fact that French law provides for both derivative works and for artistic integrity through the concept of droit (moral rights) is evidence of the fact that there is no inherent theoretical problem. Francon, Propriete Litteraire et Artistique, 52-53 (1970). Moreover, the requirement of originality in our own Copyright Act indicates a distinction between mere distortions and bona fide derivative
works. Indeed, the late Professor Nimmer when writing in his famous treatise on copyright law about the issue of preemption of the artistic
integrity provisions of the California Art Preservation Act supported a distinction between mutilation and defacement on the one hand and true derivative works on the other. Sec. 8.21[D], text accompanying nn. 34.23-.30 (1986).
The distinction is admittedly a fine one, but surely no less evanescent than the concept of originality itself. Compare, for example, the reasoning in Alva Studios v. Winninger, 177 F.Supp. 265 (S.D.N.Y. 1959), where a scale reduction of Rodin's sculpture, "Hand of God," was held to have sufficient originality with L. Batlin & Son_v. Snyder, 536 F.2d 486 (2d Cir. 1976), where a plastic model of a cast iron "Uncle Sam" bank was held not to be sufficiently original. When Congress and the courts are convinced that a value should have legal protection, imprecise distinctions have proved workable.
Common law copyright is another indication that the personal dimension of the creative process has been recognized in American law. Warren and Brandeis, for example, relied on the privacy protection aspect of the common law right of first publication in their famous article to prove that the value of privacy had been given legal recognition in American law. "The Right of Privacy," 4 Harv. L. Rev. 193 (1890). The fact that common law copyright has largely been preempted by the 1976 Copyright Act does not negate the point that American law has been appreciative of the nori-economic aspects of copyright, one of which is artistic integrity. Indeed, the U.S. Supreme Court in Harper & Row drew on the personal aspect of the common law right of first publication in arriving at its decision regarding sec. 106 (3) of the current Act. Supra at 2226-27.
Thus far I have tried to prove that there is ample evidence in American copyright law, both common and statutory, of the recognition of personal values, such as artistic integrity. Although this recognition is emerging more and more out of the background of copyright law through cases such as Harper & Row and through awareness of the structure of copyright law in other countries, such as the adherents of Berne, federal legislation is necessary not only to fix the concept firmly in the American legal consciousness, but also to deal with the more pressing, concrete violations of the personal rights of authors such as the infringement of the artistic integrity of black and white motion pictures through colorization.
The law of contract interpretation and the Federal Trademark Act are not adequate to insure the artistic integrity of motion pictures. What I have said regarding moral rights in general in my comment on the Report of