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fundamental consideration, albeit one that is not squarely before this subcommittee today. Even without the impetus of the Berne Convention, it is appropriate that Congress consider the non-economic aspect of the artistically creative process. An examination of this issue may result not merely in a debate about the requirements of Berne, but a debate about the legal implications of the link between the author's personality and

his work.

it is

Ultimately, the issue is not one of fitting into Berne; rather one of human dignity.

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1.

2.

3.

4.

5.

6.

7.

Notes

See, e.g., Statement of Kenneth W. Dam (IBM Corp.), Sept. 16, 1987; Statement of the Motion Picture Assn., Sept. 16, 1987; Statement of the National Committee for the Berne Convention, July 2, 1987; see generally, Hearings Before the Subcom. on Patents, Copyrights, and Trademarks of the Committee of the Judiciary, U.S. Senate, S. Hrg. 99-982, May 16, 1985 & Apr. 15, 1986.

See generally, id.

Appendix, 10 Colum.-VLA J. Law & Arts 1(513), 143(655) (1986).

Id.

"Final Report of the Ad Hoc Working Group On U.S. Adherence to the
Berne Convention," 10 Colum. -VLA J. Law & Arts 1(513), 39(551)
(1986) (hereinafter "Final Report').

Appendix, supra n.3, at 145(657); see also, Final Report, id. at 40(552), nn. 18 & 19.

164 F.2d 522 (7th Cir. 1947).

11.

12.

13.

17 U.S.C. sec. 101 (emphasis added).
Nimmer, Copyright sec. 8.21[C][2] (1985).

See, e.g., Crimi v. Rutgers Presbyterian Church,
819 (1949): Vargas v. Esquire, 164 F.2d at 526.

16.

89 N.Y.S.2d 813,

Sec. 43(a) of the Lanham Act provides in relevant part:

Any person who shall...use in connection with any goods or
services...any false description or representation, including words
or symbols tending falsely to describe or represent the same, and
shall cause such goods or services to enter into commerce...shall be
liable to a civil action by any person...who believes that he is or
is likely to be damaged by the use of any such false description or
representation.

15 U.S.C. sec. 1125(a) (1982) (emphasis added).

-15

17.

18.

19.

20.

21.

22.

23.

Judge Gurfein in his concurrence in Gilliam v. ABC stated that with "an appropriate legend to indicate that the plaintiffs had not approved the editing of the ABC version...there is no conceivable violation of the Lanham Act." 538 F.2d at 27. See also, Shaw v. Time-Life Records, 379 N. Y.S.2d 390, 395-96 (plaintiff's reputation could not be injured by inferior musical recordings if it was made clear that recordings were not plaintiff's personal work).

Final Report, supra n.5., at 35(547): "which would be prejudicial to his honor or reputation."

According to the canons of statutory construction, "no part of a statute whether it be sentence, clause, phrase, or word should be considered as mere surplusage or as devoid of meaning, if it can possibly be avoided." Crawford, The Construction of Statutes se sec. 200 (1940).

Statement of David Ladd On Behalf Of The Coalition To Preserve the American Copyright Tradition, Sept. 16, 1987, 9 ("the adoption of the moral right would represent a basic change in U.S. law, imported from copyright doctrine at variance from that traditionally accepted in the United States"), 27-28 ("the Coalition doubts whether it is possible to craft any moral right provision without serious disruption to the American system of copyright").

"The attributes of moral rights are situated among the rights of personality: they occupy the sphere of intellectual personality insofar as it 15 externalized in works marked with its seal."

Desbois. Le Droit d'Auteur en France, 3d. ed. sec. 381 (1978); sec also, Merryman, "The Refrigerator of Bernard Buffet," 27 Hastings L.J. 1023, 1025 (1976).

Golstein, "Preempted State Doctrines, Involuntary Transfers and Compulsory Licenses: Testing the Limits of Copyright," 24 UCLA L. Rev. 1107, 1115 (1977) ("organic ties between common law copyright and the right of privacy"); Comment, "The 1976 Copyright Act and Freemption of Private Letters." 13 J. Marsh. L. Rev. 205, 214 ("At common law, when protection was accorded these works [private letters, diaries, and family memorabilial, there were often overlapping economic and personal interests).

Harper & Row v. Nation, 105 Sup. Ct. Rptr 2218, 2228 (1985):

It is true that common-law copyright was often enlisted in the
service of personal privacy. In its commercial guise, however, an
author's right to choose when he will publish is no less deserving
of protection.
The Copyright Act, which accords the copyright
owner the "right to control the first public distribution" of his
work, echos the common law's concern that the author or copyright
Owner retain control throughout this critical stage. .. The
author's control of first public distribution implicates not only
his personal interest in creative control but his property interest
in exploitation of prepublication rights... (emphasis added).

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24.

25.

26.

27.

Sec. 115(a) (2) provides:

A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to t style and manner of interpretation of the performance involved, bu the arrangement shall not change the basic melody or fundamental character of the work...

17 U.S.C. sec. . 115(a)(2).

See generally, Statement of David Ladd, supra n.20, Statement of
John Mack Carter On Behalf Of the Magazine Publishers Association.
Sept. 16, 1987.

Art. 6, Law of March 11, 1957, reprinted in Desbois, Le Droit
d'Auteur en France, supra n.21, at 958.

CIV.

Judgment of May 27, 1959, Trib. civ. Seine R. I.D.A., Juill. 1959,
no. XXIV, p.
see also, l'Affaire Bernstein, Judgment of July 23.
49 et seg., discussed in Desbois,
Seine, [1933] D.H. Jur. 5, 33. discussed in DaSilva, "Droit Moral
supra n.21, at 541-2:
and the Amoral Copyright: A Comparison of Artists' Rights in France
1933, Trib.
and the United States," 28 Bull. Copr. Soc. 1, 35 (1980).

28.

Discussed and quoted in Sarraute. "Current Theory
of Authors and Artists in French Law,
(1968).
16 Am. J. Comp. L.

on the Moral Right 465. 481

29.

DaSilva, supra n.27, at 36.

30.

Supra n.21, at 470.

32.

World Intellectual Property Organization (WIPO), Guide to the Berne
Convention, 42 (1978).

33.

Supra n.25.

36.

37.

"Contracts in restraint of employment or personal
favorites of the law and will not be enforced where they imperil
individual rights which our fundamental laws have declared to be
services are not
inalienable."
"The modern philosophy of the law is that man may sell his services
Calhoun v. Everman, 242 S.W.2d 100, 103 (Ky. 1951).
but not himself." Id. at 103-04.

"Termination of the grant may be effected notwithstanding any
agreement to the contrary, including an agreement to make a will
to make any future grant." 17 U.S.C. sec. 203 (a) (5).

or

38.

17 U.S.C.

sec. 203.

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Copyright Law Revision, H. Rep. 94-1476. 124 (1976).

39.

40.

Supra n.35.

41.

42.

"The crucial question in determining an employment relationship is
whether the alleged employer has the right to direct and super vise
the manner in which the writer performs his work."
Nimmer, supra
n. 12 sec. 5.03[B][1][a]."

Aldon Assocs. v. Spiegel applied the "supervision and control" standard to independent contractors. 738 F.2d 548 (2d Cir. 1984).