With a bold legislative stroke, Congress could rectify decades of abuse by guaranteeing American artists the right to protect a work from defacement even after it is sold.
Or maybe such legislation would only clog the courts with lawsuits, and make doing business in such collaborative arts as movie making and magazine publishing extremely difficult.
These issues will come before the public Tuesday as prominent film stars and directors begin a new round of lobbying in Washington for a “moral rights” law to protect artists. Congress has been considering such a law in connection with several House and Senate bills designed to bring U.S. law into conformity with the Berne Copyright Convention.
The international convention, originally signed in 1886, is an agreement among 76 countries to enforce uniform copyright laws on a mutual basis. Thus, a work copyrighted in one “Berne” country is, in effect, copyrighted in all.
Among major world powers, the United States, China and the Soviet Union haven’t signed the Berne convention. The United States does subscribe to the Universal Copyright Convention, which is more limited in scope.
But some 20 Berne countries aren’t covered by the Universal Convention. And U.S. movie makers, in particular, have argued that such pockets of video piracy as Thailand, Egypt, South Korea could be cleaned up, contributing perhaps $500 million a year more to American entertainment companies, if the United States belonged to Berne.
There is a catch, however.
The Berne convention requires that member countries extend “moral rights” to artists of all kinds. In the language of the treaty, an artist “shall have the right to claim authorship of the work and to object to any derogatory action in relation to the said work which would be prejudicial to his honor or reputation.”
Some American artists--led by the Directors Guild of America, and such film makers as George Lucas and Steven Spielberg--have argued that the United States should adopt such rights. They particularly hope that movie directors and others could use newly legislated moral rights to stop the colorization of black-and-white films, or the cropping of movies for TV.
Publishers and movie makers, while some endorse adherence to Berne, have argued that U.S. law gives artists enough protection to comply with the convention, and that new rights for writers, visual artists or movie directors could unleash chaos in their industries.
At issue is whether the United States should legislate “moral rights” that would allow artists to sue if the integrity of their works is violated after sale.
For some artists, the issue is black and white--and goes to the very heart of civilization. “People who alter or destroy works of art and our cultural heritage for profit . . . are barbarians,” George Lucas recently told Congress in an address that advocated moral rights and specifically condemned the movie colorizers.
Lucas and others argue that U.S. law extends almost no protection to a writer, director or visual artist once he sells his work.
Thus, a building owner who commissions a sculpture can legally hire another artist to alter the work, unless some local law happens to prohibit the change. “Does it follow that the Pope can repaint the Sistine Chapel?” movie writer Frank Pierson asked in congressional testimony.
The pro-moral rights camp contends that some fairly simple changes to U.S. law would bring the country into line with the more enlightened policies of France and Italy, where artists have standing to oppose such changes in court.
Proponents say French laws, which are relatively strict in this area, haven’t created unmanageable litigation.
But much of the argument has focused on the trimming of films for TV, and the electronic coloring of movie classics such as “The Maltese Falcon,” directed by John Huston.
Various directors, writers and actors have contended that a moral rights clause would let them protect our film heritage by preventing such changes, even though a movie studio might own copyrights to the film. They say that any director or writer who wished could freely agree to have a film colorized. But those who opposed such a step would have the power of law behind them.
In order to divorce their cause from any profit motive, directors have asked that moral rights legislation specifically prohibit an artist from selling his rights for more than $1. Thus, a director couldn’t insist on an exorbitant fee to permit one of his old movies to be colorized.
What if headstrong staff writers or movie directors used their “moral rights” to prevent unwanted editing of work just as Time magazine was going to press, or as Paramount Pictures was about to release a film?
The resulting chaos, according to representatives of big companies, including Time and Paramount, could bring movie production and magazine publishing to a halt.
Moral rights proponents say the problem could be dealt with by legislating that rights would begin only on the publication or release date. But the companies remain extremely leery of changes that would hamper their ability to change, display, adapt or market stories and films.
Testifying before Congress, veteran movie producer David Brown contended that existing law had “evolved to the point that there is no need” for new rights in order to comply with Berne. It is already illegal, for instance, to alter a film without clearly identifying the fact that it has been changed--in theory, protecting the creators against unfair reflections on their skills.
Some anti-moral rights forces particularly rankle at movie directors’ claims that colorizing films constitutes defacement. They point out the original films aren’t touched at all. Computers merely create a new and colored version.
They also hit the seeming arrogance of directors, who would call themselves the “artists” who created a film, when in fact any movie is made by dozens of people--and not least of all by the company that finances it.
In the words of Roger Mayer, a longtime MGM executive who now works with Turner Broadcasting: “Despite propaganda to the contrary, these old movies are not the ‘violated children’ of the director. They are, for the most part, the ‘children’ of the old movie moguls.”
And, besides, Mayer told Congress, directors change other artists’ work all the time. John Huston’s “Annie” was criticized as an overblown version of the Broadway play, and Steven Spielberg’s “The Color Purple” “changed, lightened and softened” the Alice Walker novel on which it was based, the executive said.
The artists’ greatest resource is probably the drawing power of famous movie makers, many of whom have worked the publicity circuit and testified vociferously in favor of moral rights.
The list of endorsements includes Lucas, Spielberg, Milos Forman, Arthur Hiller, Ginger Rogers, Woody Allen, Warren Beatty, Jimmy Stewart, Sydney Pollack, Jerry Lewis and many more.
The Directors Guild, according to its own written summary of the moral rights issue, intends to “invite a substantial number of prominent directors, writers and actors to go to Washington to inundate Congress on March 15 and 16--just about the time all the legislative activities will be coming to a head.”
On the other side, however, the movie companies and publishers can count on their substantial political clout.
Some publishers, including Dow Jones, Conde Nast, McGraw Hill, Playboy and Newsweek, have gone on record opposing the Berne adherence altogether, largely out of fear that moral rights would disrupt business.
The Motion Picture Assn. of America, a lobbying group, has joined software publisher IBM and others in advocating adherence to Berne, but without any new moral rights legislation.
The tide appears to be running against the artists at the moment, although a powerful lobbying push could reverse congressional thinking.
A key Berne-adherence bill sponsored by Rep. Robert Kastenmeier (D-Wis.), who chairs a House subcommittee that oversees copyright matters, is being sent to the full judiciary committee without a moral rights clause. That reduces, but doesn’t eliminate, the possibility that directors and other artists will get what they want as part of the Berne bill.
But one Directors Guild representative says the union will keep pushing for moral rights legislation even if it isn’t ultimately included in a Berne bill, and that further congressional action is expected soon.