-16 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 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 the style and manner of interpretation of the performance involved, but 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 Art. 6, Law of March 11, 1957, reprinted in Desbois, Le Droit Judgment of May 27, 1959, Trib. civ. Seine R. I.D.A., juill. 1959. Discussed and quoted in Sarraute. "Current Theory on the Moral Right DaSilva, supra n.27, at 36. Supra n.21, at 470. Id. World Intellectual Property Organization (WIPO), Guide to the Berne Supra n.25. Final Report, supra n.5, at 35(547). "Contracts in restraint of employment or personal services are not "Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant." 17 U.S.C. sec. 203 (a) (5). 17 U.S.C. sec. 203. -17 39. 40. 41. 42. Copyright Law Revision, H. Rep. 94-1476. 124 (1976). Supra n. 35. "The crucial question in determining an employment relationship is Aldon Assocs. v. Spiegel applied the "supervision and control" standard to independent contractors. 738 F.2d 548 (2d Cir. 1984). Moral Rights in the United States and Article 6 bis 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* I. 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. VI, 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 LS. 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 143 (655) 656 COLUMBIA-VLA JOURNAL OF LAW & THE ARTS (Vol. 10:655 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. Massa chusetts 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 Eg. Professor Nimmer suggests that the California Art Preservation Act may be preempted. M. Nimmer. Nimmer on Copyright § 8.21|C] (1985). 4 Marvin. The Author's 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. Pluman & L Hamilton. Copyright. Intellectual Property in the Information Age 108 (1980) 6 ld at 92 8 \1 Arts & Cultural Affairs Law §§ 14.51-.59 (Mckinney 1984). Cal C Code $$ 987-89 West Supp 1984) Mass Gen Laws Ann ch 231. § 858 (West 1985). Me Res Stars Ann tit 27. § 303.1985) 144 1986] COMMENTS REGARDING THE PRELIMINARY Report 657 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 . 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: 10 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." Report. Chap 6. at 6 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) |