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The Motion Picture Industry: Critical Issues Concerning Moral Rights and Authorship

Copyright Commentary Notes
Written by Julia Mas-Guindal Edited by Heather Whitney Editorial Policy I. Introduction The doctrine of moral rights in copyright law has been a source of strain in domestic and comparative legal scholarship for decades. This strain is greater in the U.S. than in countries employing a continental legal system, where moral rights are widely recognized. This is because U.S. law and European law are built on different foundations: while for the U.S. Copyright Act the encouragement of economic investments is the top priority, continental countries prioritize protecting the artistic work and the creators. This fact has made it difficult for U.S. law to adequately account for moral rights, as I will argue in this comment. This issue is particularly acute in the realm of film. While the U.S. has made progress in establishing moral rights for paintings, drawings, sculptures and certain photographic images through the Visual Artist Rights Act of 1990 (“VARA”), the U.S. system continues to exclude filmmakers. In this comment, I will review what moral rights are and compare the moral rights landscapes of the U.S. to those of continental countries. This will shed light on why filmmakers’ moral rights have been excluded and how exclusion is not inevitable, as other countries with bustling film industries, like India, have moral rights for filmmakers. Finally, I will address the arguments made by the likes of producers and studios for why directors should not have moral rights. In the end, I argue for a way to meet the needs of producers and studios while also making room in U.S. law for recognition of moral rights in the filmmaking field. II. What are Moral Rights? Moral rights were first recognized by the French courts in the early nineteenth century. [1] In the first half of the twentieth century, the concept was gradually introduced into the copyright laws of European countries with a civil law tradition. [2] Moral rights are rights retained by an artist to protect his creation. Traditionally, these rights include the right of paternity or attribution (i.e. the right to be identified as the author of the work); the right of integrity (i.e. the right to object to derogatory treatments of the work); the right of divulgation or dissemination (i.e. the right to decide when and how a work should be made public, including the right not to make it public); and the right to withdraw a work from commerce. [3] The purpose of moral rights is to safeguard the expression of the author’s personality through his work by giving recognition and protection to creative integrity, reputation, and personality. The moral rights of authors, as generally conceived, are different from copyrights: copyrights are economic rights, whereas moral rights are personal non-economic rights. Since the goal of moral rights is to protect the personal connection between the work and its creators, authors of copyrighted works retain some control over their works even after their economic rights have been given away. [4] A substantial number of civil law countries consider moral rights inalienable, which means that they can be neither assigned nor waived; in contrast, economic rights are transferable. [5] The moral rights of artists are widely recognized in the intellectual property laws of numerous continental countries and in the Berne Convention for the Protection of Literary and Artistic Works, an international agreement which sets out to harmonize the way that copyright is regulated at an international level. Film directors have been successful in most cases when attempting to vindicate the artistic integrity of their works in continental European courts. One of the most famous cases, Turner Entertainment Co. v. Huston, CA, concerned the colourization of the black and white American film “Asphalt Jungle,” directed by John Huston and based on a story co-written by John Huston and John Maddows. In this case, the film was colourized after Huston’s death by the production company Turner Entertainment. The heirs of Huston and Maddows wanted to prevent the broadcast of the colourized version on French television. In the end, the Cour de Cassation found in favour of the estate, holding that directors and scriptwriters — regardless of the country in which their works were first published — may claim authorship of the work by “the single fact of its creation” and are invested with moral rights according to French law. III. Moral Rights’ Protection in the US Though artists have been urging Congress to adopt moral rights for many years, and their struggle has been reflected in the press, both U.S. courts and Congress have been reluctant to accept the moral rights doctrine and the protection which such rights would afford American creators. While the U.S. became a party to the Berne Convention in 1989, it refused to implement article 6 bis [6] in order to avoid major changes in its copyright law. [7] Given the U.S.’s reluctance to ratify article 6 bis, it is somewhat surprising that two years later, Congress enacted VARA, copyright legislation that included moral rights. The promulgation of VARA as an amendment to the Copyright Act represented a partial break with the long-standing U.S. position on artists’ moral rights. However, while VARA was a step in a new, more artist-friendly direction, its narrow scope expressly exempted motion pictures from its protections. The exemption was no accident. Before the enactment of this law, lobbies representing artists and producers gathered in D.C. to discuss different views of “art.” Studios argued that films were property and, as such, subject to the desires of the owner. The Director’s Guild of America (DGA) took the opposite position and argued that since films were works of art, the producers had no right to alter them. In the end, studios won the battle with the contention that “moral rights impeded the efficient exploitation of works of authorship and that this would discourage the investment in creation”. [8] The resulting lack of protection for filmmakers has made it difficult for any director whose movie is produced in the U.S. to guarantee that his film will not be altered and shown as he originally created it. As a consequence, film directors have turned to torts, contracts, and trademark law to assert and protect their moral rights in the U.S. One of the most famous examples where an American court embraced what is in essence moral right action brought on other common law and statutory grounds is Gillian v. American Broadcasting Companies, Inc. In this case, the celebrated British comedy team “Monty Python” filed suit against the American Broadcasting Company (“ABC”) seeking an injunction prohibiting ABC from broadcasting three episodes of the Monty Python’s Flying Circus comedy show. The comedy group claimed that, by excessively editing their work, ABC had “mutilated” it. [9] The Second Circuit granted the injunction and held that the edits constituted a clear mutilation of Monty Python’s work. The court reasoned that the edits ABC performed altered the nature and content of the programs to such a degree that they caused a false designation of the show’s origin, an express violation of the Lanham Act, the federal trademark and unfair competition statute. The ruling therefore represented an implicit recognition of the moral rights of attribution and integrity. [10]. A more recent case, Clean Flicks of Colorado v. Soderbergh, has stirred up interest in the filmmaking community because it represents the intersection of so many emotional issues for filmmakers and film copyright owners: the ability of technology to easily edit and change works of art. In the case, several entities purchased legal copies of the films in question on video and used various methods to selectively edit out profanity, excessive violence, and sex for family viewing. The filmmakers — here, referring to the directors and the studios — claimed that under the Copyright Act, the creation of these edited copies violated the filmmakers’ exclusive rights to reproduce their own copyrighted films, distribute copies of their films to consumers by sale or rental, and create derivative works. The court ultimately ruled that the accused infringers violated § 106(1) of the Copyright Act of 1976 when they created fixed copies of the studios’ copyrighted works. Moreover, the editing parties were liable for copyright infringement based on their undisputed distribution, by sale and rental, of copies of the studios' copyrighted works. The court held that the infringers’ defenses of fair use and the first sale doctrine were not persuasive and that they could not deny the copyright holders' legal right to control the reproduction and distribution of their protected works. What is significant is that the court rejected these infringers’ arguments under the reasoning that copyright protection is about more than fostering social progress and innovation, which is why fair use is allowed. Rather, protection is also about preserving the creator’s work. The defendants asserted the counterclaim that “the consumers of the edited versions would not have purchased the authorized versions because of the objectionable content,” and that therefore, “the studios did not compete” with the market for the unaltered film. The court found that this argument ignored “the intrinsic value of the right to control the content of the copyrighted work which is the essence of the law of copyright.” The court added that whether these films should be edited to make them adequate to more of the public is a question of what audience the copyright owner wants to reach more than a matter of marketing. This case does not grant moral rights to those considered in the traditional European moral right doctrine to be the original creators of the film—the director, script writer, and composer. However, the opinion represents a relevant step forward in this field because it highlights that what is protected are the creator's rights to preserve her work in the form in which it was created. This is, in essence, the recognition of the moral right of integrity, accepted indirectly as a type of an exception to the doctrine of fair use. Lastly, it is worth highlighting that although the directors could not invoke moral rights in this case, they played a leading role in protecting the integrity of their creations. For them, the misrepresentation of their works, not money, may be the essence of the matter here. However, as they were not the copyright holders, they depended on the studios to stand up for their rights. This would not happen in a civil law country because directors in such a country have standing to protect the films they created even after their economics rights over the film have been given away to the producers. This fact illustrates the copyright conception of authorship versus ownership. IV. Should We Extend Moral Rights to Movies in the US? The underlying debate is whether copyright law should provide greater protection for individual creators of a film or for the studio and economic investors involved in its production. Below I run through some of the major arguments given against extending moral rights protections to film directors.

1. Arguments Against

The main argument that has been made by the studios is that moral rights would impede the efficient exploitation of works of authorship and that their recognition would discourage producers’ investment in creation. Producers risk an incredible amount of money in order to bring a movie to market, [11] and, in exchange for this upfront risk, they are entitled to compensation. If we grant moral rights to directors and thus limit the producers’ ability to direct efforts ultimately aimed at earning a profit, those producers will be less likely to make those upfront investments. As a result, the public will suffer from a decrease in film supply. A second obstacle comes from the difficulty in identifying a singular artist in something as collaborative as a motion picture. According to this view, because of the number of potential moral rights claimants, it would be inefficient if not wholly infeasible to grant moral rights to the numerous creators of a motion picture. The final objection concerns the fact that through a system of trade regulation of the economic rights granted by copyright, the U.S. Copyright Act has made the U.S. home to one of the greatest film industries in the world. [12] Such a good system from an economic point of view should not be changed.

2. Arguments For

When trying to explain the necessity of moral rights in motion pictures, the first step to be taken is the recognition of them as art. It is not surprising that at the very beginning, the acceptance of films as one of the major arts was not an easy process because film fell outside the Romantic vision of artistic creation. [13] However, at present, films are widely recognized as the art form of the twentieth century par excellence. [14] Under this reasoning, if movies are an art form, they should have the same protection that has been granted to other works such as sculptures or paintings. [15] If films are works of art, its treatment not as creations imbued with the spirits of their authors, but simply as any other goods to be bought or sold for profit (17 U.S.C. 201 (d) 1) does not seem fair. Second, in the same way that the recognition of moral rights in other works of authorship has not hindered their exploitation, it would not do so for movies. A good example to back up this argument is that currently Bollywood is the largest producer of films in the world, yet moral rights are widely recognized by the Indian copyright Act. [16] It has been rationally stated that in upholding moral rights protection Indian courts have been the champions of creative effort and non-commercial artistic endeavor. [17] As I mention before, under U.S. Copyright law, the producers are considered the authors and, therefore, the copyright owners. However, from my point of view, those who provide the original creative effort in the generation of the work should be considered its original authors. [18] It is essential to bear in mind that in filmmaking the creative force is mainly the director, not the producer. [19] The producer is more comparable to a sponsor of the arts or an investor. The director should be recognized as the pure and genuine author, and while the producer can retain the copyright, the creator should be conferred some rights too—even if these are non-economic rights and just aim at protecting his creation. It is fair to admit that both of them are indispensable to get the movie made. Lastly, as some have wisely pointed out, the public has a definite interest in the doctrine because it protects the integrity of its culture and, by protecting the creator, it stimulates creation. [20] V. Conclusion The fact that the funding needed for the production of a film is considerably greater than that required in most other artistic endeavours has worked against the recognition of the rights of film authors. The mix of artistic work and economic investment from the early years of cinema has generated many conflicts in the filmmaking process as well as in the legal protection of cinematographic creation. Money is important, but without creative input a film can not be adequately developed, so it is necessary to establish legal mechanisms encouraging artists to create. At present, the legal status of moral rights in the regulations of different countries demands clarification and assessment as never before because the advent of the new technologies makes alterations in films easier and faster. It is precisely when the capacity to manipulate works is greatest that concerns about artistic integrity and the preservation of cultural heritage should become most pressing. The different approaches to ownership of copyright and authorship of cinematographic works led and will lead to problems in marketing them across national boundaries.
[1] Georges Michaelides-Nouraros, Le Droit Moral de l'Auteur 17 (1935). [2] Claude Colombet, Propriété littéraire et artistique et droits voisins 22 (1992). [3] Elizabeth Adeney, The Moral Rights of Authors and Performers: an International and Comparative Analysis 102 (2006). [4] In contrast, in the United States film industry, the employer is legally the author and owns and controls all authors' rights ab initio, in most cases under work-for-hire rules. [5] Burton Ong, Why moral rights matter: Recognizing the Intrinsic Value of Integrity Rights, 26 Colum. J.L. & Arts 297 (2002-2003). [6] The Berne Convention provides for moral rights in article 6 bis, which states:

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.

(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where the protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death cease to be maintained.

(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

[7] Final Report on the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 Col.-VLA J.L. & Arts 514 (1986). [8] Jane C. Ginsburg, Moral Rights in a Common Law System, in Moral Rights Protection in a Copyright System 16, (Peter Anderson, and David Saunders ed. 1992). [9] Actually, Monty Python did not contractually agree to ABC making edits. [10] Among others, it is worth highlighting the following phrases from the opinion: “These cases cannot be distinguished from the situation in which a television network broadcasts a program properly designated as having been written and performed by a group, but which has been edited, without the writer's consent, into a form that departs substantially from the original work”(...) "To deform his work is to present him to the public as the creator of a work not his own, and thus makes him subject to criticism for work he has not done." [11] Jake Coyle, From 'Cleopatra' to 'Lord of the Rings,' 'Avatar' joins tradition of the Hollywood colossus, Los Angeles Times (December 14, 2009). [12] This new study by UCLA's Ronald W. Burkle Center for International Relations shows growing Asian competition for the Hollywood film industry. But even like this, the study states that a huge share of the world entertainment market is Hollywood's. [13] From a Romantic point of view a work of art is characterized by its irreproducibility and by the fact that it constitutes a unique creation of an individual author. [14] Who can deny that The Godfather, Out of Africa or Gone with the Wind are not real masterpieces? Many artistic elements merge in the creation of them—music, words, drama and the performances—but the whole it is greater than the sum of these parts. [15] Remember that the artist of these works are granted moral rights under VARA. [16] Allan S. Gutterman and Bentley J. Anderson, Intellectual Property in Global Markets 384 (1997). [17] Mira Sundara, Moral Rights in Developing Countries, the example of India part II,,8 JIPR 449 (2003). [18] In film production, it is generally accepted that it is the director who provides the film its ultimate cinematic form. He or she who performs the essential creative art and he or she is the only one whose contribution cannot be individualized, it is the film as a whole which is his or her creation. This creates the classic conflict between producer and director, owner of the copyright and real author the work. [19] Marjut Sanokanel, Film Authorship and the Audiovisual Environment, in Of Authors and Origins 57 (Brad Sherman-Alain strowell) (1994). [20] Martin Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554 (1940).