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recognition of a paternity right in each such potential "author" would require an index of unmanageable size.

Moreover, the work product of any given individual may or may not be reflected in the piece as finally published or performed. The added burden of identifying the authors of the finished product, at the risk of violating a "moral right," would encumber the timely presentation of the news and other information to the public.

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Many publications purchase photographs for particular stories from "stock houses" or photo agencies. These agencies frequently do not provide information on the identity of the photographer. Use of such agencies and the resulting efficiencies and cost advantage could be drastically curtailed if the photographer of a photo so supplied could surface following publication and demand damages for the failure to credit his work.22

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found it necessary to undertake the difficult task of examining the extent of plaintiff's contribution to the story.

21 In addition, some members of the Coalition develop large databases with contributions from numerous correspondents and freelancers. Information from these databases is then published. It is unclear whether the contributors to the databases would be considered authors entitled to claim paternity.

22 The complexities of photographic paternity rights are demonstrated by a case currently being defended by Time Inc. in Brazil. In that case, a Brazilian publisher published a photograph of Nazi war criminal Joseph Mengele. The publisher had obtained the photograph from Life magazine, where it originally appeared in 1981. The Life photo had been taken, with full license, from video footage used in a television program produced in England. The footage in question had been obtained from a Czech film crew. The English producer had advised Life that the Czech film crew did not wish credit for use of the photo. The plaintiff in Brazil, previously unknown to Life, claims that he took the film footage and is demanding unspecified damages for the failure to provide credit.

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Adoption of the paternity right could also work a serious change in the broadcasting industry. Radio stations rarely identify the composer or lyricist of popular musical works. A recent memorandum by the WIPO and UNESCO

Secretariats concluded "[t]he failure to indicate the names of the authors of the works performed in such cases is an infringement of the authors' moral right."23

2. The Integrity Right.

The integrity right poses even greater risks to the dissemination of information.

a. Newspapers and Magazines. Newspapers and magazines of necessity extensively edit contributions and crop and lay out photographs and illustrations to achieve consistency of substance and tone and to conform to space requirements. The tight deadlines under which such publications routinely operate require that editorial decisions be made quickly. Even where a publisher has obtained total rights to use articles or photographs, it is impossible to obtain, for each particular use, the consent of the author in the exercise of his moral right. The author may not be known or promptly found; and, if the authors are several, the problem is compounded. To allow authors and photographers to second-guess such decisions under penalty of litigation and liability undeniably will frustrate prompt publication and clog the editorial job. 24

23 Memorandum of the Secretariats, "Questions Concerning the Protection of Copyright and the Rights of Performers in Respect of Dramatic, Choreographic and Musical Works," Doc. No. UNESCO/WIPO/CGE/DCM/3 (March 6, 1987), reprinted in WIPO, Copyright: Monthly Review of the World Intellectual Property Organization (WIPO), No. 6 at 207 (July, 1987). Although some members of the Committee of Governmental Experts considering the issue expressed reservations, the general principle was accepted. Report of the Committee of Experts, Doc. No. UNESCO/WIPO/CGE/DCM/4 (adopted May 15, 1987), reprinted in WIPO, Copyright: Monthly Review of WIPO, No. 6 at 185 (July, 1987).

24 In addition, many publications that use photographs use airbrushing to limit the risk of liability by making subjects unrecognizable. One person's legitimate airbrushing may be another's prejudicial alternation.

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The news media in the United States, including newspapers and weekly news magazines, provide immediate coverage of uncompromising quality for late-breaking stories. This style of journalism is not possible in nations that adhere to Berne, in large measure because of the delays and editorial compromises required by droit moral. That editorial freedom and its public benefit should not be sacrificed.

b. Broadcasting. Preparation of works for commercial television necessarily entails cutting for insertion of commercials, time limitations or indecency concerns. The producer, director, scriptwriter or other author of a motion picture or program could delay presentation by objecting to such cuts or the inclusion of commercials. 251

C.

Adaptations. Recognition of the integrity right presents special problems with respect to publication of adaptations even where the author has granted the right to make the adaptation, as from book to motion picture or stage. For unless the adapter, exercising the grant, makes an adaptation acceptable to the author, the author,

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25 Such claims have been made even in the absence of the moral right. See, e.g., Autry v. Republic Productions. Inc., 213 F.2d 667 (9th Cir. 1954); Preminger v. Columbia Pictures Corp., 49 Misc.2d 363, 267 N.Y.S.2d 594 (N.Y. Sup. ct.), aff'd, 25 A.D. 830, 269 N.Y.S.2d 913, aff'd, 18 N.Y.2d 659, 219 N.E.2d 431 (1966). These cases, which were decided on contract grounds, would have been far more difficult to resolve under the moral right.

26 Cf. Geisel, 295 F. Supp. at 345, 357 (S.D.N.Y. 1968) (Dr. Suess objected to dolls based on cartoons to which he had transferred all rights on the ground that "the toy dolls destroy the artistic integrity of plaintiff's original work and are so inferior in quality that the use of plaintiff's name in connection with them is disparaging and damaging to him." The court did not address the integrity claim and rejected the defamation claim, finding the dolls "attractive and of good quality."). Testimony before Congress in 1934 described a situation where Warner Bros., after purchasing the motion picture rights to Wunderbar and paying an additional sum to the authors to acquire rights to change the story, were met with a demand for an additional $100,000 on pain of preventing European distribution. Kilroe Statement at 70.

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exercising the moral right, may complain and sue.2 27 At worst, the publisher smarts in damages and is enjoined; at best, he is subject to a lawsuit.

Adaptations are of great concern. The Reader's Digest for decades one of the country's most popular magazines is a journal of condensations of best-selling books and of articles from other periodicals. The integrity right could substitute legal coercion for the author-editor cooperation by which the Reader's Digest has supplied consumer tastes in 28 many languages throughout the world. Other members of the Coalition frequently adapt works for multiple forms of dissemination. For example, news, information and other articles are frequently delivered in a variety of media. Thus, the work of a single author may have to be modified, re-edited and re-formatted for dissemination by wire service, domestic newspaper, international newspaper, and broadcast report, or a magazine article may have to be adapted and reprinted in a book that collects articles on a particular topic.

d. Textbooks. A textbook is, frequently, in its first and successive editions, the handiwork of several authors, including not only teachers but graduate students working under them who have no formal relationship with the publisher. Commonly such textbooks (like other manuscripts) require substantial editing by the publisher. The publisher has traditionally enjoyed, and continues to require, the discretion to make editorial emendations free from the danger of second-guessing integrity right claims.

Moreover, under standard arrangements, college and professional textbooks are typically revised by several generations of authors although the text continues to be published under the name of the original author. Yet, armed with the integrity right, the original author or his heirs may bar revisions of the original work as a distortion or mutilation. Because universities must be assured of a dependable supply of subsequent editions, and because such

27 See WIPO, Guide to the Berne Convention, at 42 ("[T]he adaptor's freedom is not absolute; this 'right of respect' allows the author to demand, for example, the preservation of his plot and the main features of his characters from changes which will alter the nature of the work or the author's basic message.").

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The translations themselves form another area where editorial discretion in adaptation is long-established, needed, and fair.

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textbooks often do not pass into profitability until several editions are sold, the risk of moral rights suits could chill production of such works.

Computer Software.

Computer software presents unique problems. Software must frequently be modified by publishers to alter the user interface (either to improve appearance or to relate to accompanying written material) or to conform the software to an integrated system. Moreover, software often requires modification and adaptation to meet user needs or to "debug". Such changes must be made free from any risk of an integrity claim.29

f. Objections to "Context." A different order problem is created if an author may object to context in which a work is placed as "a derogatory action in relation to" the work. 30 Such a complaint was raised in Shostakovich v. Twentieth Century-Fox Film Corp..31 There, four Soviet composers objected to the use of their public domain works in what they considered an anti-Soviet motion picture. The court refused to grant relief, in part, on the ground that "[i]n the present state of our law, the very existence of the [moral] right is not clear."32 In contrast, a French court,

hearing the same facts, did find a violation of the moral

29 The French recognize the unique status of software. The 1985 reform of French copyright law provides that, absent agreement to the contrary, the author may not object to the modification of a software work by a grantee who has acquired the right to adapt the work. French Copyright Law revision of July 3, 1985, art. 46. See Ginsburg, Reforms and Innovations Regarding Authors' and Performers' Rights in France: Commentary on the Law of July 3, 1985, 10 Colum.-VLA J.L. & Arts 83, 90 (1985).

30 H.R. 1623 does not include the right to object to a "derogatory action" but appears to be limited to "distortion, mutilation or other alteration". However, the Convention expressly forbids any "other derogatory action" in relation to the work which can not be ignored under the minimalist approach and may, in any event, be read into the provisions of H.R. 1623.

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196 Misc. 67, 80 N.Y.S.2d 575 (N.Y. Sup. Ct. 1948), aff'd, 275 A.D. 692, 87 N.Y.S.2d 430 (1949).

32 Id., 80 N.Y.S.2d at 579.

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