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Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention

by EDWARD J DAMICH*

1. General Comment

The conclusion of the Ad Hoc Working Group that the protection of moral rights in the United States is compatible with the Berne Convention is in error insofar as this conclusion is based on the determination that "substantial protection" is available for the "real equivalent" of moral rights under American statutory and common law.' More accurate is the statement found on page 12 of Chapter 6 [Final Report, Ch. V'I, part E3]: "[T]he totality of U.S. law provides protection for the rights of paternity and integrity sufficient to comply with 6bis, as it is applied by various Berne countries." It is the lack of effective compliance among Berne countries, rather than the protection given moral rights in American law, that removes Article 6bis as an obstacle to U.S. adherence. A comparison of the language. of Article 6bis with the protection afforded moral rights in the U.S. leads to the inescapable conclusion that this protection is virtually non-existent.

11. State v. Federal Law

Although state law as well as federal law may be examined to determine whether moral rights are protected in the U.S., it is an exaggeration to conclude that moral rights are sufficiently protected in the U.S. by citing a few cases confined to a few states. Furthermore, since there is a serious question as to whether state moral rights legis

• Associate Professor. George Mason University School of Law, Arlington. Virginia The research assistance of John F Edwards. GMUSL 1987, is gratefully acknowledged. Copyright 1986 Edward J. Damich. All Rights Reserved

1 Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention (hereinafter cited as the Report] Ch 6. at part B

2 The Report cites only cases from New York and California

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lation is preempted by the Copyright Act. it is misleading to place too much weight on state enactments until this question is decided.

III. The United Kingdom

The United Kingdom is an example of a Berne signatory with a common law legal system. Although the British delegation to the Rome Conference of 1928 was assured that moral rights were adequately protected by remedies available in equity and common law in the United Kingdom. the extent of this protection was and is questionable. In 1928 the concept of moral rights was still in its infancy. It is noteworthy that the U.K. has not signed the 1971 Paris text, and the 1977 Report of the Whitford Committee on the Law of Copyright and Designs stated that signing the Paris text would involve the adoption of special provisions protecting moral rights under copyright law.

IV. The Right to Claim Authorship

The Report correctly observes that the U.S. Copyright Act "does not afford the protection commonly understood to be provided by Berne's affirmative moral right of paternity-the author's right to have his or her name placed on the work." It further correctly observes that most state statutes do not grant this right, although its information regarding the limited recognition of the right to claim. authorship is out of date. In addition to New York, the right to claim authorship is also recognized to a limited degree in California. Massachusetts and Maine'

The Report also asserts that some commentators believe" that "sufficient protection of the right to claim authorship is provided by a combination of common-law rights and section 43(a) of the Lanham

3 Fg. Professor Nimmer suggests that the California Art Preservation Act may be preempted M Nimmer. Nimmer on Copyright § 821|C] (1985)

4 Marvin. The Author Status in the United Kingdom and France Common Law and the Moral Right Doctrine 20 Int & Comp LQ 675. 677 (1971)

5 France, where the moral rights concept first developed. did not give express statutory protection until 1957 F Ploman & L Hamilton. Copyright Intellectual Property in the Information Age 106 (1980,

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8 N1 Arts & Cultural Affairs Law §§ 14 51-59 (Mckinney 1984) Cal Civ Code $$ 987-89 West Supp 1984 Mass Gen Laws Ann ch 231. § 858 (West 1985, Me Res Stats Ann it 27 § 303.1985,

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Act." citing an article by the late Professor Nimmer. Professor Nimmer, however, is far more equivocal than the Report would have us believe. For example, he states: "It could be said that the United States does comply with a narrow construction of the requirements of article 6bis." 10

A. The Right to Be Identified As Author

1. Contract Theory

Professor Nimmer states: "The right of an author to demand affixation of his name to his work is only imperfectly recognized in the United States." As the Report notes, Harris t. Twentieth Century-Fox Film Corp. and Vargas v. Esquire, both cases dealing expressly with the question of identification of authorship, are clear authority that the author cannot assert a right to be identified as such unless he has some contractual basis. 12 Van Valkenburgh v. Hayden and Zilg v. Prentice-Hall do not involve the question of identification of authorship. In Van Valkenburgh the court construed an express contract provision requiring the publisher to use his best efforts to promote the book in light of a general good faith standard applicable to all contracts." In Zilg the court implied a "best efforts" promise from the contractual agreement." It would be wishful thinking to conclude, based on Van Valkenburgh and Zilg, that one could expect that courts would routinely imply a promise to identify the author in all contracts of this kind that do not expressly exclude such implication. Moreover, even if such a contract right were assumed arguendo, Professor Nimmer

observes:

For the purposes of article 6bts it is arguable that it is no right at all. since a right dependent upon the voluntary agreement of individual contracting parties (express or inferred from custom and usage) hardly satisfies the Convention requirement of obligatory recognition."

C Report. Chap 6. at 6

10

Nimmer. Implications of the Prospective Revisions of the Berne Convention and the United States Copyright Law. 19 Stan L Rev 499. 522 (1967) (emphasis added)

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2. Unfair Competition Theory

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The Report is unrealistic in suggesting that the right to claim authorship is protected by section 43(a) of the Lanham Act when the only authority for such a view is dictum in Smith v. Montoro." PIC Design . Sterling Precision, for example, held that "[t]he pertinent section of the Lanham Act makes actionable the application of a false designation of origin, not the removal of a true designation.'

3. Tort Theory

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No authority is educed to suggest that American tort law protects against the omission of the author's name."

B. Prohibiting Identification of Another As Creator of the Author's Work

The Report is on more solid ground in noting the emergence of a right to prevent the identification of another as creator of the author's work. In Smith . Montoro. for example, the court on the basis of section 43(a) of the Lanham Act found for an actor who starred in a film distributed by the defendant which falsely attributed his role to that of another actor." It is questionable, however, whether a cause of action in this situation would be recognized on general contract principles as the Report suggests.20 In the 1985 edition of his treatise. Professor Nimmer considerably softened the statement from his 1967 law review article quoted in the Report. Citing DeBekker v. Stokes Co., Harris v. 20th Century Fox Film Corp., and Jones v. American Law Book Co., Professor Nimmer states that "there is some indication that this was the rule under the older pre-section 43(a) cases."

C. Prohibiting Identification of the Author as Creator of Another's Work

As the Report indicates, there is ample authority to conclude on the basis of the Lanham Act, libel, and the right of privacy/publicity that the author has a cause of action for false identification of the author as author of another's work.

16 Report. Chap 6. at 8 The Smith Montoro citation in the Preliminary Report appeared incorrectly It should have read 648 F 2d 602.

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19 648 F 2d 602 (9th Cir 1981) Note that Montoro dealt with misattribution rather than non-attribution See supra notes 16-17 and accompanying text

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21

M. Nimmer, supra note 3. at § 8 21[E] n 60 (emphasis added).

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Comments Regarding the Preliminary Report

V. The Right of Integrity

A. Copyright Act

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The Report suggests that moral rights protection exists in the Copyright Act, viz. sections 101 and 106(2), derivative works, and section 115, compulsory licenses for phonorecords of nondramatic musical works. Although section 115 does appear to be a bona fide right of integrity provision, it is limited as to subject matter (nondramatic musical works) and to circumstances (compulsory licenses for phonorecords).

Whether the right to make derivative works is analogous to the right of integrity is questionable, despite the fact that the definition of derivative works includes the phrase "or other modifications."""" Professor Nimmer, for example, implies that the definition of derivative works in the Copyright Act may not and should not include the right to make all changes, but rather only changes that result in a bona fide adaptation. Thus, changes that are distortions or mutilations would not be included." Furthermore, even if coincidentally, the definition of derivative works contains language suggesting a right to make all changes, the non-existence in U.S. copyright law of a clear distinction between economic and moral rights renders the inquiry futile. It is the proverbial comparison of apples and oranges.

The transferability problem is illustrative. The right to make derivative works is transferable." If the right to make derivative works includes the right of integrity, and if the right to make derivative works is transferred, what concept in copyright law is left to comply with Article 6bis which states that the right of integrity subsists in the author "[i]ndependently of the author's economic rights and even after transfer of the said rights?""

Gilliam v. ABC" is not very helpful. Even if Gilliam does hold, as Professor Nimmer says, that "unauthorized changes in the work which are so extensive as to impair the integrity of the original work constitute copyright infringement," that case dealt with the transfer of performance rights, not the right to make derivative works. In

22. Note that this phrase is modified by the clause: "which, as a whole, represent an origi nal work of authorship. 17 USC § 101 (1982).

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