A seductive prospect? U.S. copyright reform

Maria Pallante

What could be more seductive than the prospect of a new copyright law? In recent comments made before the U.S. House of Representatives, and reiterated at the annual Fordham IP conference in New York earlier this month, Maria Pallante, the current U.S. Register of Copyrights, appears to be calling for just that. As she points out, copyright reform, in the United States as elsewhere, has been a partial and largely “piecemeal” undertaking. A global approach to reform could lead to better results – greater clarity and transparency of the law, as well as more sensible provisions, such as a shorter term of protection of life + 50 years p.m.a., and more accessible rationales for copyright protection. Her initiative is to be welcomed. From a purely practical point of view, the prospect of a new and improved copyright law promises nothing less than the holy grail of modern intellectual property rights – enhanced enforceability, and stronger appeal to the public on which enforcement ultimately depends.

The Register’s list of the areas that would need attention in a new legislative initiative includes many of the usual suspects – orphan works, the scope of educational uses, the music industry, and improvements to licensing and enforcement, to name a few (a comprehensive summary of her remarks can be viewed in an earlier 1709 Blog post). But one major area of copyright law remains decidedly absent: moral rights. With this grand opportunity ahead, why have the moral rights of authors, an area of some significance in copyright laws worldwide, been overlooked?

It has been 24 years since the United States joined the Berne Convention, inaugurating a major new era of American leadership in international copyright law. It is well-known that Berne provides for the protection of authors’ and artists’ moral rights in its Article 6bis, incorporated into the Convention in 1928. All members of the Berne Union are therefore required to recognize moral rights in their legislation, a situation that has ultimately led to copyright reform to include moral rights in the copyright laws of most common-law countries. However, the United States remains an exception.

Since joining Berne, the United States has pursued only one instance of legal reform to promote moral rights at the federal level: the Visual Artists Rights Act of 1990 (VARA). The framework for the protection of artists’ moral rights in VARA is somewhat controversial, being unusually restrictive in certain respects. Notably, the duration of artists’ moral rights in VARA is limited to the artist’s lifetime for works created after VARA’s entry into force (though s. 106A (d) provides that earlier, unpublished works are protected for the duration of economic rights), and a controversial remedy is offered for violations of the integrity of artworks: the removal of attribution of authorship as a way of nullifying potential damage to the author’s reputation (s. 106A(a)(2)). On the other hand, it is worth noting that VARA explicitly prohibits destruction of an artwork “of recognized stature” (s. 106A(a)(3)(B)), still an unsettled issue internationally. A strong precedent for protection from destruction was established in the settlement of Kent Twitchell’s 2008 complaint over a mural that was painted over, for $1.1 million in damages (the case is summarized by CreateLegal here).

It is interesting to note that moral rights enjoy somewhat stronger recognition at the state level in a number of U.S. states which have chosen to adopt special statues for the protection of art (Merryman et al., 2007, 444). For example, California’s moral rights statute specifically recognizes a “public interest” in artworks, rather than considering the moral right primarily as a prerogative of authorship. This theory mirrors the approach to integrity rights in...India.

Of course, legislation is not the only legitimate form of recognition for moral rights. The Berne Convention recognizes as much in its sub-clause on moral rights, Article 6bis(2), which was introduced in 1967 in order to support the protection of moral rights through tort law in the common-law countries. This subsection allows the protection through tort law of at least “some” aspects of moral rights, providing a legal platform for the tacit recognition of defamation and passing off as possible vehicles for the protection of moral rights. In the example of India, admittedly a pro-moral rights jurisdiction, international conventions on cultural property, to which that country adheres, have been offered as an indirect source of protection for moral rights by the Delhi High Court (Amar Nath Sehgal v Union of India, 2005 (30) PTC 253, available here).

What is troubling in the U.S. situation is, however, a parallel trend: new case law that restricts the availability of moral rights protection. In particular, the United States Supreme Court issued an influential decision in 2003, Dastar v Twentieth-Century Fox, which considered the availability of moral rights through the Lanham Act. This federal statute initially codified tort actions for passing off, but has ultimately been recognized as a new form of action in its own right. It specifically provides that the “false designation of origin” of a work, in such a way that “confusion,” “mistake,” or “dece[ption]” might arise, is a violation. The resemblance between the notions of “origin” and “authorship” seems self-evident. Yet the Supreme Court ruled negatively in this case, determining that it was not an acceptable use of s. 43(1)(A) of the Lanham Act to seek to establish a right of attribution for works of original authorship.

A closer look at the facts of the case elicits much sympathy for the verdict. They were distinctly unappealing, with the main issue surrounding the attribution of a television program that had entered the public domain in the United States some two decades earlier, and which was, itself, based on an earlier work, a book. The Court was concerned about the implications of imposing rights in the public domain, effectively recalling a work into the sphere of private ownership. It also pointed out that the work in question could properly be said to have multiple origins, and that the clarification of origin by attributing it to the producers of the original program would not be satisfactory. Subsequent interpretation of Dastar by the American legal community has read the case broadly, extending its scope to works still within copyright term and to all types of copyright works. This suggests that the concerns raised by the Supreme Court in Dastar effectively bar the use of the Lanham Act for the protection of authors’ moral rights in the United States.

The Dastar ruling and its aftermath present a striking contrast to trends at the international level. Moral rights have expanded, and, in particular, new moral rights have been adopted in international treaties. Music has led the way. Moral rights for musical performers were included in the WIPO Performances & Phonograms Treaty of 2002, and these rights were recently extended to performers in the audiovisual context, in the Beijing Treaty of 2012. Taken together, these new instruments offer unprecedented moral rights protection for both musicians and actors. Once again, the United States lags behind – and it is in a truly peculiar position where two important American industries are concerned, music and film. American performers have more rights abroad than they do in their own country.

This observation might generate a curious sense of déjà-vu. The very first case on moral rights in an American film arose in 1992. It was brought by Angelica Huston and screenwriter Ben Maddow, protesting against the broadcast of a colorized version of “The Asphalt Jungle,” a black and white classic directed by her father, John Huston. The colorized version was to be aired in France, but the French court intervened to prevent it. Huston had clearly stated that filming in black and white had been a deliberate artistic choice. In the United States, no recourse was available under American law – unless the situation had somehow been visualized by contract – irrelevant in this particular case. Plus ça change, plus c’est la même chose.

In the meantime, moral rights in America have gained practical recognition in a surprising new context: copyleft. Creative Commons licences include the recognition of attribution of authorship – indeed, it is the very foundation of the licencing structure – as well as expressing some possibilities for the protection of the integrity of works. Why should the American copyright system reject an aspect of copyright law that is accepted even by anti-copyright movements?

The time is ripe for the United States to revisit moral rights. According to conventional copyright wisdom, a statutory solution has always been a good idea. Given the evolution of U.S. case law over the past decade, a statutory solution would now seem to be required. A new copyright law signifies many new reasons to be hopeful and excited. Why not include moral rights on the Register’s impressive new list of issues to be examined, and grant U.S. authors and artists the rights that they already enjoy overseas – and, indeed, through copyleft?

This piece has been posted by Jeremy for Mira T. Sundara Rajan.