660 COLUMBIA-VLA JOURNAL OF LAW & THE ARTS 28 (Vol. 10:655 deed, Professor Nimmer comments that the most satisfactory explanation of the case is that the transfer of the right to perform does not imply the transfer of the adaptation right (i.e., the right to make derivative works). But if the right to make derivative works is transferred, and if the right to make changes is part of the right to make derivative works, what right of integrity is left to the author? Unless there are two aspects of the right to make derivative works, the economic one which is transferred and the moral one that is retained. the result is a hopeless muddle. American law, however, does not recognize this distinction. Finally, it bears restating that despite the Copyright Act four states have passed legislation specifically granting the right of integrity. Although there are no cases concerning whether these statutes are preempted by federal law, it is reasonable to assume that before they were passed some thought was given to whether the Copyright Act provided this protection.90 B. The Lanham Act, Section 43(a) As the Report indicates, the U.S. Court of Appeals for the Second Circuit recognized in Gilliam . ABC that an artist has a right based on section 43(a) of the Lanham Act "to have his work attributed to him in the form in which he created it."" However, this leaves open the question whether a work could be modified as long as it was not attributed or, even if attributed, as long as a disclaimer was added." Indeed, any fraud-based cause of action such as section 43(a) arguably requires some kind of attribution. Given the absence of a real right of attribution in the U.S.," the potentiality of the Lanham Act to protect the right of integrity is significantly weakened. Article 6bis is not fraud-based insofar as the right of integrity is concerned. Furthermore, it is important to note that the author is not restricted in only objecting to modifications prejudicial to his rep 28. Id 29 See supra note 8 and accompanying text 30 The late Professor Nimmer believed that the right of integrity in the California Art Preservation Act was arguably preempted insofar as it protected against alteration, but not insofar as it protected against physical defacement, mutilation or defacement. M Nimmer. supra note 3. at § 8.21|C2 31 id at § 8.21|C||1 32 The majority of the court in Gilliam opined that a disclaimer would be insufficient. but Judge Gurfein dissented un this point 538 F 2d 14. 25 nn. 13. 27 33 See supra section IV 148 1986] COMMENTS REGARDING THE PRELIMINARY REPORT 661 utation: he may object to violations of the right of integrity that involve his honor" as well." Thus, according to the plain meaning of the language of Article 6bis, the author could object to any modification of his work, indeed, even to one that enhanced his reputation or to one which was not attributed to him. This approach is not only broader than the most expansive interpretation of any fraud-based cause of action. but also more sensible because it covers the case where a unique piece is permanently modified and either unattributed or fitted with a disclaimer. The French law of authors and the California Art Preservation Act are examples of statutes that embody this view.30 C. Other Grounds for Protection 36 Although as the Report indicates, some decisions have protected the integrity of a work under a claim of libel, the law of defamation is inherently inadequate to protect works to the extent required by the plain meaning of Article 6bis. First, since libel requires injury to reputation, it implies that the work must be attributed, and, second, there is the question whether it is an appropriate cause of action in the case of complete destruction of the work."7 VI. Summary and Conclusion 37 When the language of Article 6bis is compared with the evidence that has been offered to suggest that moral rights are substantially protected in the U.S., it is clear that. aside from some recently-passed statutes in four states, moral rights are not protected in any meaningful sense. First, they are not protected as such. Except for Gilliam, a long line 34 Report. Chap 6. at 1. 35 art Cal Ci Code § 987(c) (West Supp 1984). Law of March 11. 1957. C CIN 543. C pen arts 425-29 See also Damich. The New York Artists' Authorship Rights Act: A Comparative Critique. 84 Colum L Rev 1733. 1742 nn 66-71 and accompanying text (1984) 36 Report. Chap 6. at 11. 37 One might argue, however, that the destruction of the only work, best work, or a representative work of the artist could damage his reputation Merryman. The Refrigerator of Bernard Buffet. 27 Hastings LJ 1023. 1035 (1976) 149 662 COLUMBIA-VLA JOURNAL OF LAW & THE ARTS [Vol. 10:655 of cases has expressly rejected the concept," and even Gilliam is susceptible to other interpretations. 39 Second, the Copyright Act. except for one very specialized area. does not recognize the distinction between moral and economic rights on which Article 6bis is predicated and without which its application is impracticable."1 Third. the attempt to find inchoate moral rights protection in more familiar causes of action is largely wishful thinking. Regarding the right of attribution, it can be safely said that the right has been vindicated only where there has been misattribution. Where there is no element of fraud, the Report has been unable to cite any case based on contract theory in which the court has clearly recognized the right, and for tort theory it presents no evidence at all. The claim that the Lanham Act secures the right in this context rests merely on dictum in one case. Regarding the right of integrity, the leading case, Gilliam v. ABC, is unclear as to the theoretical basis on which this right can be based. As we have seen, Professor Nimmer is undecided whether there is an implied condition attached to every grant of reproduction/performance rights or whether the right to make derivative works was not conveyed." Furthermore, the Lanham Act violation that also serves as a basis for relief is fraud-based and thus vulnerable to the argument that if the work is unattributed or if a disclaimer is made, there is no misrepresentation and therefore no cause of action. This is a much more qualified concept than that of Article 6bis which provides the artist with grounds for objection to any modification that is prejudicial to his "honor" as well as his reputation. In light of the above, it is more accurate to say that a moral rights consciousness is beginning to emerge in U.S. law. It is still, however, a far cry from the requirements of Article 6bis. The overly optimistic picture of moral rights protection in the U.S. painted by the Report 38. E.g. Vargas Esquire. 164 F 2d 522 (7th Cir 1947). Crimi Rutgers Presbyterian Church. 194 Misc 570. 89 NY.S.2d 813 (Sup Ct. 1949) See also. M. Nimmer, supra note 3. at § 8 21 Bn Even Gilliam states that "American copyright law, as presently written. does not recognize moral rights or provide a cause of action for their violation. 538 F 2d at 24 39 See. eg. Goldberg. Commentary The Illusion of "Moral Right" in American Law 43 Brooklyn L Rev. 1043 (1977) 40 Compulsors licenses for nondramatic musical works. 17 USC § 115(a)(2) 41 See supra section V(A) 42 M Nimmer, supra note 3. at § 8.21(C) 150 1986) COMMENTS REGARDING THE PRELIMINARY Report 663 suggests that there are such other compelling reasons for adherence that differences must be minimized or that adherence would provide strong legal arguments for pushing the law toward full recognition of moral rights in accordance with Article 6bis. From the point of view of a moral rights advocate, however, there is the danger that adherence will impede the full recognition of moral rights in the US. by providing confirmation that the existing paltry acceptance equivalent to the meaningful protection embodied in Article 6bis. 151 |