- 17 ·

If the moral right was

even, as in

right and ordered the film seized.33
introduced into U.S. law, such context claims
Shostakovich, with public domain works might well be
recognized.

Context claims would greatly amplify uncertainty in publishing. With them, a photographer or graphic artist would be able to object to the subject matter of the text with which his photograph or drawing is associated or juxtaposed, or an author may be able to object to the presence of other authors or articles on disfavored subjects in the

publication.34

A filmmaker may likewise be able to object to the broadcast of his film with certain commercials.

Such a doctrine could easily be abused to harass or discriminate against unpopular works. Context claims depend on the content of a publication. The freedom to control content is at the core of the interests protected by the First Amendment.35

3.

Relationship of Moral Right to Fair Use.

Core First Amendment interests are also endangered by the apparent failure of the proposed legislation to limit moral rights by the fair use doctrine. The doctrine of fair use is integral to the balance between the interests of

33 Societe Le Chant du Monde v. Societe Fox Europe and Societe Fox Americaine Twentieth Century, Cour d'appel, Paris, Jan. 13, 1953, D.A. 1954, 16, 80, discussed in Strauss, The Moral Right of the Author, 4 Am. J. Comp. L. 506, 534-35 n.56 (1955). The New York court thus was correct in its assertion that droit moral could conceivably "prevent the use of a composition or work, in the public domain." Shostakovich, 80 N.Y.S.2d at 578.

34 For example, a photographer may object to the publication of his photograph to illustrate an article advocating a political view with which he disagrees, or a scientist may object to the publication of an article on U.F.O.S or other "pop" science subjects in a magazine containing his article.

35 cf. L. Tribe, American Constitutional Law 580-81 (1978) ("if the constitutional guarantee means anything, it means that, ordinarily at least, 'government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,'" quoting Police Department of Chicago v. Mosely, 408 U.S. 92, 95-96 (1972)).

authors and the interests of dissemination embodied in the First Amendment.36

Photographs accompanying news stories frequently depict copyrighted works either incidentally or as the focus of the picture.37 When the work is incidental to the photograph, the artist, sculptor or architect who created the work is rarely known to the photographer or to the publisher. Liability for failure to provide credit would unnecessarily chill the use of many photographs of public interest.38 where the focus of the photograph is the copyrighted work, it is not always appropriate or possible to identify the artist, sculptor or architect.

Even

Similarly, literary works, motion pictures and other audiovisual works are frequently excerpted, paraphrased or described for purposes of criticism, commentary or news reporting. If the author (or authors, however they may be defined) may object to such uses on the basis of the integrity right, important First Amendment values would be sacrificed.

36 See, e.g., Financial Information, Inc. v. Moody's Investors Serv., Inc., 751 F.2d 501, 507-08 (2d Cir. 1984), quoting Meeropol v. Nizer, 560 F.2d 1061, 1068 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978); Wainwright Securities Inc. v. Wall St. Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert. denied, 434 U.S. 1014 (1978).

37 The number of photographs depicting copyrighted works would increase dramatically upon adherence to Berne because of the requirement that architectural works be protected. Although H.R. 1623 would exclude the right to prevent the dissemination of pictorial representations of such works from the economic copyright (section 9(a) (§120 (b))), it does not appear to so circumscribe any moral right that may exist in the work.

38 Although the Berne Convention provides that "the protection of this Convention shall not apply to news of the day nor to miscellaneous facts having the character of mere items of press information," Article 2(8), H.R. 1623 does not so provide. In any event, the exception of Article 2(8) is narrowly drawn to "news" and "miscetlenoys facts."

Miscellaneous

The Berne Convention expressly requires that its terms apply to previously created works that are not in the public domain in their country of origin.39 Although Berne technically does not necessarily apply to domestic works, there has been no indication that any implementing legislation would discriminate against U.S. authors, a result likely to be politically unacceptable. Thus, most works now under copyright, including books, motion pictures, magazines, and photographs, where alí copyright interests have been transferred for valuable consideration, will suddenly be subject to moral rights claims and demands for further compensation. Such an unforseen statutorily imposed obligation of the moral right upon existing contracts for those works would work all the unfairness of ex post facto legislation.

In sum, the moral right is certain to impede the free and effective flow of information and copyrighted works to the public due to their novelty and to the uncertainty surrounding their scope and implementation. 40 However the

39 "This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection." Berne Convention, Article 18(1).

40 Even beyond the risks of moral rights that directly affect the members of the Coalition, introduction of droit moral would fundamentally alter common law notions of personal property rights, disrupting settled expectations. Droit moral provides the author or artist with a controlling interest in his work even after that work has been purchased by another. For example, in one case, France's highest court, the Court of Cassation, required Renault to complete erection of a monument on its property despite the existence of a contract explicitly providing that the artist would be paid even if the monument were not built. The court reasoned that by commencing construction, Renault accepted the obligation to complete the work "so as to fully satisfy the demands of the artist's moral rights. 11 La Regie National des Usines Renault v. DuBuffet, Cass. civ. 1re, March 16, 1983, Arret No. 229; accord L'affaire de la Fontaine de Rennes, Cour de Paris, judgment of July 10, 1975, R.I.D.A., Jan. 1977 at 114) (finding a city liable for damages under droit moral for destruction of a fountain due to safety concerns). In

(continued...)

rights are defined by the implementing legislation, burdensome litigation is virtually assured. Moreover, as discussed below, adherence to Berne and the pressures that will result, both internal and external, will likely result in the moral right being given broad scope as the law develops.

40(...continued)

Buffet v. Fersing, Cour d'appel, Paris, 1962, D. Jur. 570, the court prohibited the owner of a refrigerator that had been painted by the artist Buffet from selling individual panels of the refrigerator upon Buffet's claim that separation of the panels mutilated his work. In Snow v. The Eaton Centre, 70 Ont. 2d 105 (1982), a Canadian court ordered removal of Christmas ribbons from a sculpture of geese in a shopping mall upon the complaint of the sculptor. The mall owned the sculpture. Similarly, in Crimi, 89 N.Y.S. 2d at 815-18, plaintiff invoked droit moral in an attempt to force a church to restore a fresco owned by the church that had been painted over by the church. The claim was rejected due to the absence of droit moral in the United States. cf. Serra v. General Services Administration, 86 Civ. 9656 (S.D.N.Y. Aug. 31, 1987) (LEXIS Genfed lib.) (dismissing on sovereign immunity grounds an artist's claim that the government was not permitted to move a sculpture it owned that was disrupting the use of a Federal plaza because, inter alia, "removal to another site would so extensively impair its integrity as to constitute a fundamental alteration and distortion of the work." (Complaint at 46)).

Further, owners of buildings subject to architectural copyright could suddenly find that they were living in a protected architectural work that they could demolish or modify only under certain limited conditions without the architect's permission. See H.R. 1623, § 9(d) (permitting the owners of buildings embodying architectural works to make only minor alterations or alterations that enhance utility without the consent of the author); cf. Les Batiments Occupes par des Services Agricoles en Auvergne, Cour de Riom, March 26, 1966, 2 J.C.P. 15183 (1967) (architect awarded damages for addition of annex building, which allegedly upset "the harmonious balance of the building" and injured "his reputation as a man of art.").

C.

Regardless of the Legislative Approach that Is
Chosen, Incorporation of the European Concept of
Droit Moral Is Inevitable upon Adherence to Berne.

As Chairman Kastenmeier has recognized, "[t]here is no doubt that the Berne Convention requires the recognition of [moral] rights."41 Legislative efforts to limit the incorporation of droit moral into U.S. law will not protect against foreign and domestic pressure for full incorporation or the risk that U.S. courts will directly or indirectly implement the requirements of Berne. Neither the minimalist approach incorporated in the Administration bill nor the approach of H.R. 1623 provide adequate protection against these risks. Moreover, although the limitations proposed by H.R. 1623 represent a sensitive and scrupulous attempt to cushion the potential effect of the moral right, they fail to resolve the doctrine's problems and may, themselves, be inconsistent with the requirements of Berne.

1. Pressure for the Full Incorporation of
Moral Right Is Inevitable upon Adherence
to Berne.

There is authority for the proposition that Article 6 bis is intended to be directly applicable and enforceable under the law of signatory nations.42 But even if Congressional declarations can forestall self-execution, courts faced with moral rights claims will in close cases likely look for guidance to Berne and the laws of those nations that are far more familiar with the rights mandated

41 133 Cong. Rec. H1295 (daily ed. March 16, 1987).

42 As Register Oman stated, "[t]he Berne Convention has three general types of provisions: 1) specific rules that guarantee rights to authors and proprietors; 2) rules that establish more general obligations, leaving the details to national legislation within specified limits; and 3) optional rules whose acceptance left entirely to national law. Absent specific legislation, and depending upon domestic jurisprudence, rules that are susceptible of direct application could be given legal effect by adherence to the Convention." Oman Statement at 11; accord S. Stewart, International Copyright and Neighbouring Rights 48 (1983). If the treaty is not self-executing with respect to directly granted rights such as those in Article 6 bis, this tripartite distinction collapses.