Moral Rights IP Fordham Law

8/2/2019 Moral Rights IP Fordham Law

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Copyright Law & Moral Rights

Civil Law and Common Law approach

Fordham Law SchoolComparative IP & IT - IPGL-0230-001 Room 310

February 2010 / Prof. Pablo A. Palazzi

Moral

Rights


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+Rights under Law

Pecuniary rights vs. Moral rightsCivil law tradition: both are important, but Droit

Moral most unique feature

Common law: weak moral right or inexistentBorn from case law, not statute

Currently statutory rights in civil law tradition

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+How moral right was born?

France (first cases) 1828: case Widow Vergne v. Creditors of Mr. Vergne-

an unpublished manuscript is not property that couldbe seized anterior to the publication (there is aprivate interest and right that belongs exclusively tothe author)

1845: case Marquam Lehuby - editor does not havethe right to alter a work submitted for publication.

Berne Convention (1928 Rome Act)

Several statutes in civil and common law

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+New problem: the Internet

April 2006: the estate of Spanish painterJoan Miro objected to Google's copying ofMiro's style on its home page in anattempt to honor him on his birthday. Thefamily's representative indicated that thepurported tribute violated Miro'scopyright and moral rights.

Google denied any violation of Miro's

rights, but removed the Miro-like

elements from its logo.

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Great expansion of authorand heirs rights

Obstacle to uses of works? Critics

Internet


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International Sources

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+International Sources

Berne Convention : article 6 bisGeneva Universal Convention : no provisionWIPO Copyright Treaty 1996 : no provisionWIPO Performances and Phonograms Treaty

(WPPT): article 5 (moral right of performers)

TRIPS Agreement 1994: no provision, but seearticle 9.1, sentence 2.

EU Community Law : no provision

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+Moral Rights : International

Sources Berne Convention : article 6 bis Geneva Universal Convention : no provision :why ?

Minimalist approach of International Copyright Law

WIPO Treaties 1996 : no provision WIPO Performances and Phonograms Treaty: article 5 TRIPS Agreement 1994: no provision Community Law : no provision

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Sources Berne Convention : article 6 bis Geneva Universal Convention : no provision WIPO Treaties 1996 : no provision :why ? Different

purposes Internet / Software / Databases / DRM /

Information

WIPO Performances and Phonograms Treaty: article 5 TRIPS Agreement 1994: no provision Community Law : no provision

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SourcesBerne Convention : article 6 bisGeneva Universal Convention : no provisionWIPO Treaties 1996 : no provisionWIPO Performances and Phonograms Treaty:

article 5

TRIPS Agreement 1994: no provision :why ?Economic Organisation : Moral Right outside of itsscope

Community Law: no provision

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SourcesBerne Convention : article 6 bisGeneva Universal Convention : no provisionWIPO Treaties 1996 : no provisionWIPO Performances and Phonograms Treaty:

article 5

TRIPS Agreement 1994: no provisionCommunity Law : no provision

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+Article 6bis - Berne Convention

(1) Independently of the author's economic rights, and even afterthe transfer of the said rights, the author shall have the right toclaim authorship of the work and to object to any distortion,mutilation or other modification of, or other derogatory action inrelation to, the said work, which would be prejudicial to his honoror reputation.

(2) The rights granted to the author in accordance with thepreceding paragraph shall, after his death, be maintained, at least

until the expiry of the economic rights, and shall be exercisable bythe persons or institutions authorized by the legislation of thecountry where protection is claimed. However, those countries

whose legislation, at the moment of their ratification of or accessionto this Act, does not provide for the protection after the death of theauthor of all the rights set out in the preceding paragraph mayprovide that some of these rights may, after his death, cease to bemaintained.

(3) The means of redress for safeguarding the rights granted bythis Article shall be governed by the legislation of the country

where protection is claimed.

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+Moral Right : International Sources

1. To claim authorship; to object to certainmodifications and other derogatory actions;

2. After the author's death;

3. Means of redress

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Berne Convention: article 6 bis


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(1) Independently of the author's economic rights,and even after the transfer of the said rights, the

author shall have the right to claim authorship of

the work and to object to any distortion,mutilation or other modification of, or other

derogatory action in relation to, the said work,

which would be prejudicial to his honor or

reputation.

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article 6 bis: Content


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(1) Independently of the author's economic rights,and even after the transfer of the said rights, theauthor shall have the right to claim authorship ofthe work (paternity right or right of attribution)

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(1) Independently of the author's economic rights,and even after the transfer of the said rights, the

author shall have the right to claim authorship of

the work andto object to any distortion,mutilation or other modification (integrity right)

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Berne Convention: article 6 bis Paternity right Integrity right No right to divulge No right of withdraw or repent

Minimalist conception of Moral Rights as

compared to civil law tradition countries(France; Germany)

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(2) The rights granted to the author in accordance withthe preceding paragraph shall, after his death, be

maintained, at least until the expiry of the economic

rights, and shall be exercisable by the persons or

institutions authorized by the legislation of the country

where protection is claimed. However, those countries

whose legislation, at the moment of their ratification of

or accession to this Act, does not provide for the

protection after the death of the author of all the rights

set out in the preceding paragraph may provide thatsome of these rights may, after his death, cease to be

maintained

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Article 6 bis:Authorship /duration


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(2) The rights granted to the author in accordance withthe preceding paragraph shall, after his death, bemaintained, at least until the expiry of the economicrights, and shall be exercisable by the persons or

institutions authorized by the legislation of the countrywhere protection is claimed. However, those countrieswhose legislation, at the moment of their ratification ofor accession to this Act, does not provide for theprotection after the death of the author of all the rightsset out in the preceding paragraph may provide that

some of these rights may, after his death, cease to bemaintained

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(2) The rights granted to the author in accordance withthe preceding paragraph shall, after his death, bemaintained, at least until the expiry of the economicrights, and shall be exercisable by the persons or

institutions authorized by the legislation of the countrywhere protection is claimed. However, those countrieswhose legislation, at the moment of their ratification ofor accession to this Act, does not provide for theprotection after the death of the author of all the rightsset out in the preceding paragraph may provide that

some of these rights may, after his death, cease to bemaintained

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(3) The means of redress for safeguarding therights granted by this Article shall be governed by

the legislation of the country where protection is

claimed.

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Article 6 bis : conflict of Law: legislation ofthe country where protection is claimed


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Limited scope as it is possible to comply witharticle 6 bis without introducing express provisionswithin copyright law (e.g. United States?)

The TRIPS reference to the Berne Conventiondoes not extend to article 6 bis (exclusion)

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Scope and effectiveness of the article 6 bis


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+TRIPS Agreement 1994

Article 9 - Relation to the Berne Convention:

1. Members shall comply with Articles 1 through

21 of the Berne Convention (1971) and the

Appendix thereto. However, Membersshall not

have rights or obligations under this Agreement in

respect of the rights conferred under Article 6bis of

that Convention or of the rights derived therefrom.

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+Reasons to exclude moral rights

from TRIPS

Article 9.1 is a Bern-minus provision

Objective: to remove moral rights from TRIPS

However exception does not derogates fromrights and obligations under article 6 bis BC

But the WTO dispute settlement rules do not apply

or of the rights derived therefrom: to exclude

not only 6 bis but also 10(3) and 11 bis (2) BC

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+Reasons to exclude moral rights

Article 9.1 sentence 2 is a result of a US initiative. U.S. highlysceptical of moral rights

Worry about WTO potential dispute settlement proceeding:minimal amendment of the Copyright Act since US accession to theBerne Convention cast doubts about compliance with BC art 6 bis

US lobby + Hollywood film industry which feared that author moralrights may interfere with licenses that have already been acquired

Official US argument: the moral rights were non economic rightsand did therefore not belong to the trade-related aspects of IP

which are TRIPS sole topic

Similar clause in NAFTA Annex 1701.3 No. 2: This Agreementconfers no right and imposes no obligations on the US with respectto Art. 6 bis BC or rights derived from this article

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Article 5- Moral Rights of Performers

(1)Independently of a performers economic rights, and even after the transfer of thoserights, the performer shall, as regards his live aural performances or performancesfixed in phonograms, have the right to claim to be identified as the performer of hisperformances, except where omission is dictated by the manner of the use of theperformance, and to object to any distortion, mutilation or other modification of hisperformances that would be prejudicial to his reputation.

(2)The rights granted to a performer in accordance with paragraph (1) shall, after hisdeath, be maintained, at least until the expiry of the economic rights, and shall beexercisable by the persons or institutions authorized by the legislation of theContracting Party where protection is claimed. However, those Contracting Parties

whose legislation, at the moment of their ratification of or accession to this Treaty, doesnot provide for protection after the death of the performer of all rights set out in thepreceding paragraph may provide that some of these rights will, after his death, ceaseto be maintained.

(3) The means of redress for safeguarding the rights granted under this Article shall be

governed by the legislation of the Contracting Partywhere protection is claimed.

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WIPO Performances and Phonograms Treaty


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+Moral rightin the Civil Law tradition

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+Moral Right : Civil Law

Monist conception

Germany, Austria,

Hungaria,Czech

Republic.

Urheberpersnlich-keitsrecht

Same duration: End of

moral right at the

expiration of economic

rights

Urheberrecht as a

whole is not alienable:Same philosophy :

balance of interests

Dualist conception

France, Italy, Spain

Droit moral, diritto

morale, derecho

moralDifferent regimefrom economic

rights

Different philosophy

(author centered)

perpetual,inalienable

imprescriptible

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Droit moral is inalienableNo unanimity: on duration,on scope,on possibility of waiving ones right

Ex : ghostwriter agreement - is not reallyenforceable?

Effect of waiver of the right to be named?

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+French IP Code

Article L121-1An author shall enjoy the right to respect for his

name, his authorship and his work.

This right shall attach to his person. It shall beperpetual, inalienable and imprescriptible. It may

be transmitted mortis causa to the heirs of the

author. Exercise may be conferred on another

person under the provisions of a will.

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+Nature

One View: Non-pecuniary nature: resemblerights of personality or individual civil rights.

Another view: Moral rights are not inherent in anauthor's individuality, they just relate to a work. E.g:

a legal entity may be granted moral rights.

It does not fit the personality right analysis.

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+Problems

Prof. Raynard MR should be regarded as a merederogation from the normal exploitation of a work,

through a potential limitation on prerogatives of

copyright assignees.

For a US view France's droit moral seems to hold anexcessive place within copyright law

Tends to undermine producers' economicexpectations and to harm both modern creationand the public interest

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+Moral Rights

right of paternity (orattribution);

right of integrity;Right of disclosure;

right to withdraw the work.

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+Right of Attribution

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Right of paternity: allows an author to claimauthorship of his work and, therefore, to be

acknowledged as the author of the work

Is intended to enable the author to be identified asthe author of the work on copies or whenever the

work is communicated to the public.

In U.S. terms, it is the author's right to credit forauthorship.

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+Guille v. Colmant

Guille a painter agreed to deliver to Colmant, adealer, his entire future production for a period of

ten years at a rate of twenty paitings a month. No

duress in entering contract.Contract provided that the works furnished to the

dealer would be signed with a pseudonym and

that the painter would not sign his earliers works.

Dispute. Dealer sued artist for breach of contract.

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+Guille v. Colmant

Held: the dealer could not prohibit the artist fromusing his real name in connection with works he

created, despite the terms of the contract.

Guille v. Colmant (1967) Recueil Dalloz-Sirey D.S. Jur 284 . Gazette duPalais I. 17 (Cour dappel, Paris).

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Publishing a work without designating its authorviolates the author's moral right of attribution.

Author's name should be mentioned on publicityfor the work.

Third parties who delete the author's name orsubstitute their own for that name commit an act

making them liable for damages.

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Negative aspect of attributionIn the case of a work falsely attributed to an author,

the author alleging false attribution is permitted to

forbid the use of his name as a creator of the work.

Case of fake Borges poem in Argentina. Widow ofBorges initiated actions against publishing house.

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Rodin caseFrench court holding that "attribution to Rodin, by

means of an usurpation of name, of a work he

actually did not make, undermines the sculptor'sright to respect for his name and harms the artistic

identity of his work."

CA, Paris, 13e ch., Mar. 23, 1992, R.I.D.A., 1993, 155, 181.

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+Barrault v. Citroen

Commissioned draftsman demanded, on the grounds ofhis paternity right, that his contracting car manufacturer

affix his name on the coachwork of each marketed

vehicle.

The judge rejected the claim, stating that "in the field ofindustrial designs, the artistic work has an accessory

character in comparison with the exploited product, so

that success is mostly relying on a financial effort of the

company that took an exploitation risk.

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+French IP Code

Article L121-1An author shall enjoy the right to respect for his

name, his authorship and his work.

This right shall attach to his person. It shall beperpetual, inalienable and imprescriptible. It may

be transmitted mortis causa to the heirs of the

author. Exercise may be conferred on another

person under the provisions of a will.

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+Smith v. Montoro

The court held that the removal of an actor's namefrom the film credits and accompanying

advertising material in connection with the film, as

well as the substitution of another name, violated

section 43(a) of the 1946 Lanham Act on

trademarks, as a false designation of origin of

goods or services.

Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981).

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Clevenger v. Baker Voorhis & Co., New YorkCourt of Appeals granted former author and editor

of law books the right to prevent his former

publisher from using his name.

Plaintiff had terminated his position as editor andhad revoked his consent to have his name used as

editor of any later editions. Defendant publisher

indicated that Clevenger was the editor of a

subsequent edition filled with errors.

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Clevenger v. Baker Voorhis & Co


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Lamothe v. Atl. Recording Corp., 847 F.2d 1403 (9thCir. 1988) : Addressing removal by a songwriter of

his coauthor's name on published music

Johnson v. Jones, 149 F.3d 494 (6th Cir. 1998)Substituting one architect's name for another's on

architectural plans.

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+Dastar Corp. v. Twentieth Century Fox

In 1948, Fox obtained the exclusiverights to create a television seriescalled Crusade in Europe, based onthe 1948 book, Crusade in Europe

written by Dwight D. Eisenhower and

published by Doubleday. The 26-episode series showed World War IIfilm footage from the US military andother sources, with a voicesoundtrack based on a narration ofthe book. In 1975, Doubledayrenewed the copyright on the book.Fox, however, did not renew thecopyright on the TV series, so theshow entered the public domain in1977.


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In 1988, Fox reacquired the television rights to the book,and licensed to other companies the right to purchased

Betacam videotapes of the original TV series, copied

the tapes, edited them to about half the original length,

created new packaging, and sold the TV series as WorldWar II Campaigns in Europe. The new videotapes and

advertising mentioned Dastar and its employees as the

producers, and did not mention the original Crusade in

Europe book, TV series, or producers.

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Fox sued in 1998, claiming that Dastar hadinfringed the copyright to the Crusade in Europedistribute Crusade in Europe on video. Then in1995, Dastar book, and that, under the Lanham Act,

it had illegally done a "reverse passing off",passing off the work of others as its own work. Thedistrict court found for Fox and awarded it doublethe profits that Dastar had made. The Court ofAppeals reversed the copyright claim and sent it

back to the district court on remand, but upheldthe "reverse passing off"/Lanham Act ruling, andaffirmed the award of double the profits

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A former copyright holder could not bring a

Lanham Act claim for false designation of origin

against a subsequent distributor who labelled

itself the "producer" rather than the work's original

author, because "origin" under the Lanham Act

refers only to the origin of the physical goods

rather than the intangible ideas contained therein.

Ninth Circuit Court of Appeals reversed and

remanded.

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+Dastar case (2003)

Professor Jane Ginsburg expressed the view thatfrom now on, "in the United States neither the

copyright nor the trademark laws establish a right of

attribution generally applicable to all creators of all

types of works of authorship," and so the

compliance of American copyright law with Berne

might be challenged.

Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright

and Trademarks Law, 41 Hous. L. Rev. 263 (2004)

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+Academic criticism of Dastar

Austin, Graeme W., The Berne Convention as aCanon of Construction: Moral Rights After Dastar.

NYU Annual Survey of American Law, 2005.

Available at SSRN: http://ssrn.com/

abstract=707181

Ginsburg, Jane, The Author's Name as a Trademark:A Perverse Perspective on the Moral Right of

'Paternity'?, http://lsr.nellco.org/columbia_pllt/

0591/

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+The Right of Divulgation

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+The Right of Divulgation

The right of divulgation is the right of the author todecide when and how his work is to be disclosed

to the public, including the right not to disclose it.

In the course of its development, French copyrightlaw came to acknowledge that, when the moral

right of divulgation conflicted with economic

rights, the former would prevail over the latter

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+Whistler decision

The American painter Whistler,while living in Paris, had beencontractually commissioned bythe British Lord Eden to make aportrait of Lady Eden. Whistlernot only made the portrait, but

allowed it to be shown briefly tothe public in the Salon duChamp de Mars, and thenrefused to deliver it as he hadpromised, and had been paid, todo.

Whistler painted out LadyEdens head, painted in anotherand refused to deliver the work.

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+Whistler decision

The Cour de cassation held that''the contract by which a painterpromises to execute a paintingin return for a fixed priceconstitutes a special contract by

which the property [to the

embodiment of the work] passesto the commissioning party onlywhen the artist makes thepainting available to such partyand such party accepts it.'

Lord Eden was entitledrestitution of 100 guineas he hadpaid and damages for breach ofcontract but he could notcompel restoration of theportrait or its delivery.

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+French IP Code

Article L121-2The author alone shall have the right to divulge his

work. He shall determine the method of disclosure

and shall fix the conditions thereof ....

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+French IP Code

After his death, the right to disclose his posthumousworks shall be exercised during their lifetime by theexecutor or executors designated by the author. If thereare none, or after their death, and unless the author has

willed otherwise, this right shall be exercised in the

following order: by the descendants, by the spouseagainst whom there exists no final judgment ofseparation and who has not remarried, by the heirsother than descendants, who inherit all or part of theestate and by the universal legatees or donees of thetotality of the future assets.

This right may be exercised even after expiry of theexclusive right of exploitation set out in Article L123-1.

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+French IP Code

Article L121-3. In the event ofmanifest abuse inthe exercise or non-exercise of the right ofdisclosure by the deceased author'srepresentatives referred to in Article L121-2,

the first instance court may order anyappropriate measure. The same shall apply inthe event of a dispute between suchrepresentatives, if there is no known successorin title, no heir or no spouse entitled to inherit.

Such matters may be referred to the courts bythe Minister responsible for culture.

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+French IP Code

Article L121-6. If one of the authors refuses tocomplete his contribution to an audiovisual work

or is unable to complete such contribution due to

circumstances beyond his control, he shall not be

entitled to oppose use of that part of his

contribution already in existence for the purpose

of completing the work. He shall be deemed the

author of such contribution and shall enjoy the

rights deriving therefrom.

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+Right to withdraw the work


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+French IP Code

Article L121-4. Notwithstanding assignment of hisright of exploitation, the author shall enjoy a rightto reconsider or of withdrawal, even afterpublication of his work, with respect to the

assignee. However, he may only exercise that righton the condition that he indemnify the assigneebeforehand for any prejudice the reconsiderationor withdrawal may cause him. If the author decidesto have his work published after having exercisedhis right to reconsider or of withdrawal, he shall berequired to offer his rights of exploitation in thefirst instance to the assignee he originally choseand under the conditions originally determined.

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+The Right ofIntegrity of the Work

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+The Right of Integrity

Definition of Berne ConventionThis right starts by assuring that the integrity of the

author's work is maintained, but its scope is

somewhat broader....

The author may assert this right against others forviolations of which he is, to a large extent, thearbiter.

Third parties who suppress, supplement, alter orotherwise modify a work do so at their own risk.

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In many civil law tradition regimes the author ofthe work does not have to prove that such acts did

or might prejudice his honor or reputation to

obtain relief against them, nor need he justify his

reasons for refusing to tolerate such acts.

What about parody? fair uses?The author alone judges whether, and how, it might

be fitting to alter the work and, accordingly, in whatform it should reach the public.

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Not an absolute rightCase in which Salvador Dali asserted his right to

respect to oppose additions which a theatrical

production had made to costumes he haddesigned.

Court allowed changes as long as ''the additions donot result in an inaccurate portrayal of the work.

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French law seeks to preclude the public, thirdparties, or the courts from substituting their

choices or value judgments for the author's

concerning whether modifications of his work

might be fitting.

E.g. a decision made this clear when enjoining adirector of Waiting for Godot from exercising his

free choice to cast men or women, since the

playwright Samuel Beckett had clearly expressedhis intention not to have women play in this piece.

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+Millet case

Son of painter Milletclaimed that two

publications distorted and

falsified his father work

moral rights and should beprohibited.

Reproduction of Milletpopular painting The

Angelus.

Cort refused destruction ofexisting copies but held...

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+Millet case

the reproductions brightened the light in the

painting, made objects look real and vulgar, added a

bonet on one persons head and a scarf around a

womans neck, and changed an evening scene to

one suffused by a glaring noonday sun....

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+Leger case

Leger v. Reunion des Theatres Lyriques Nationaux,6 R.I.D.A. 146.

Fernand Leger designed setting for the OperaBolivar

New production without one scene of the opera(Crossing of the Andes)

Producer has no right to make a cut without theartist permission and without informing the public

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+

Rousseau v. Galeries Lafayette (1974)Galeries L., a Paris department store, used paitings

of artist in its windows decorations

grandfather of the artist sued invoking moralrighsts

repdroductions employed different colours andaltered images affecting right of integrity

No mention of name of artist

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+De Chirico v. Ente Autonomo La Bienale de

Venezia

1950 Venice Biennale drewtogether works by the Italianartist Giorgio De Chirico frompublic and private collectorsfor a retrospective exhibition.

None of the paintingsbelonged to the artist.

Artist filed action to prohibitthe exhibition: the showmisrepresented him by

overincluding earlier worksand underincluding the laterones.

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+Trial Court

the one man show at the Bienale is very important forthe reputation of the artist

it is viewed as a critical and representative exhibition ofthe artist work and it may strongly affect the estimationof the artist.

artist has a legally protectable interest in beingaccurately and fairly represented in it.

consent of the artist???? but Court of Appeals revoked the decision

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+Court of Appeals

narrow and literal reading of the statuteItalian Copyright act provided no right to the artist

to control the exhibition of works he no longer

owned

trial court: censorship?what is the limit of the right of integrity?

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+Shostakovich case

The Iron Curtain Film used S. music that was in the publicdomain.

FRANCEJudgment of Jan. 13, 1953 (Soc. Le. Chant de Monde v. Soc. Fox

Europe et Soc. Fox Americaine Twentieth Century), 1953 G.P.

191.

USAShostakovich v. Twentieth Century-Fox Film Corp., 80 N.Y.S.2d 575,

578 (Sup. Ct. 1948).Shostakovich v. Twentieth Century-Fox FilmCorp., 87 N.Y.S. 2d 430 (1st Dep't 1949).

Result: injunction denied! Moral right not recognized in

common law

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+Right of Integrity

The right to respect goes beyond remedies foralterations of a work itself.

The right may allow the author to obtain reliefagainst various practices that might present hiswork in misleading, disparaging, or derogatory

circumstances, fashions, or contexts.

It does not protect artist honor or reputations (tortlaw)

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+Tintin Case

The heirs of the author of the comic-book seriesTintin, famous for a boy and his scrappy little dog

as well as other picturesque characters initiated

lawsuit to protect Tintin.

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+Tintin case

First case: plaintiff obtained an injunction againstperformances of a play placing these characters in

situations so different from their adventures in the

series as to ''corrupt the ethics'' of the work as a

whole.

Second case: parody of Tintin in Switzerland.Court said there is no parody. The obscene

character of the work affects the reputation of

Herg and mutilated the work.

Cour dappel de Bruxelles, june 8 1978, Casterman et Georges Remi v. Callico

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+Buffet v. Fersing

French artist Bernard Buffet was invited todecorate a Refrigerator to be auctioned in Paris for

the benefit of charity. He did so by painting a

composition consisting of six panels: 3 on the front

one on the top and one on each side of the

refrigerator. The work of art was auctioned. Six

months later the catalog for another auction

included a Still Life with Fruits by Bernard Buffet

and described as painting on metal.

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+Buffet v. Fersing

Artist brought an action against the owner-

consignor to prevent the separate sale of the panel

and the court so ordered.

Tribunal also awarded symbolic damages of onefranc, the right to publish it decision in three art

periodicals of his choice at defendant cost and

expense. It refused artist request that the six panels

be awarded to him as damages.

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+Buffet v. Fersing

On appeal the court revised the judgment toprohibit evenprivate piece-by-piece disposition of

the work (not only public dismemberment).

Protection of moral right of the artist warrants thelimitation of defendant right of property.

Buffet v. Fersing (1962) recueil Dalloz 570, 571 (Cour dappel, Paris).

Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1035

(1976).

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Film Colorization

Dualist conception

France

Droit moral

International Publicorder

Asphalt Jungle /

colorization ofamerican film

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Film Colorization

Turner Entertainment Co. v. Huston, CA Versailles,civ. ch., December 19, 1994, translated in Ent. L.Rep., Mar. 1995.

Turner Entertainment Company (TEC) acquiredthe rights to "Asphalt Jungle," a 1950 John Hustonmovie, when it merged with Metro Goldwyn Meyer(MGM). Once TEC so acquired the movie, itproceeded to add color to Huston's black andwhite movie; and entered into an agreement withthe French television channel, La Cinq, tobroadcast the modern version of the movie.

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Huston's heirs and the screenwriter, moved toprevent the broadcast of the altered work.

In ruling in favor of the Plaintiffs, the French Courtheld that the "integrity of a literary or art workcannot be affected in France, regardless of the state

in whose territory the said work was made public for

the first time.

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The Court noted that the Section 6 of the Law of11th March 1957, is the textual support for the right

of integrity.

It provides that "the author enjoys the right torespect for his name, his status, his work--this right

attaches to his person and may be transmitted to

the author's heirs after death.

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Film Colorization

colorization is not an adaptation or an originalwork in an of itself both in expression andcomposition, rather it is a modification of theoriginal work.

black and white movie was made at the timewhen color was available to the artist, andtherefore, the motion picture in question wasfilmed in black and white (and not in color)

following a deliberate aesthetic choicecolorization was a violation of the moral rights.

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+French IP Code

Article L121-5. An audiovisual work shall be deemed completed whenthe final version has been established by common accord between thedirector or, possibly, the joint authors, on the one hand, and theproducer, on the other.

Destruction of the master copy of such version shall be prohibited.Any change made to that version by adding, deleting or modifying any

element thereof shall require the agreement of the persons referred toin the first paragraph above.

Any transfer of an audiovisual work to another kind of medium with aview to a different mode of exploitation shall require prior consultationwith the director.

The authors' own rights, as defined in Article L121-1, may be exercisedby those authors only in respect of the completed audiovisual work.

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+Plon v. Hugo (Heir of Victor Hugo)

Article 10 ECHR

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+Right of Integrity - Spain

Spanish architect, SantiagoCalatrava, was commissioned bythe Bilbao municipal authorities to design and oversee theconstruction of a bridge over the river Nervin, which runsthrough the middle of the city. The bridge was part of Bilbaosurban development project to unite the two sides of the river.Construction was completed in May 1997, and the work wasreceived by the city Council to their apparent satisfaction. Thebridge, known by its Basque name Zubi Zuri (white bridge)became one of the citys landmark attractions.

Some years later, two companies began work on theconstruction and promotion of new riverside complex close tothe Zubi Zuri.

In order to connect the new development to the other side ofthe river via the Zubi Zuri, some changes were needed...

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An extended walkway supported by two concretepillars was attached to Santiago Calatravas bridge

in 2006 by removing a section of the balustrade.

Mr. Calatrava claimed infringement of his moral

right to the integrity of his work, citing the fact thatthe extension had been added without his

authorization, and nor had his permission been

sought for the removal of part of the balustrade.

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He demanded that the bridge be restored to itsoriginal state and the walkway demolished, plus

250,000 euros for moral damages and publication

of the judgment in the national and specialist

press. Alternatively, if the bridge could not berestored, he requested a compensation payment of

3 million.

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+Right of Integrity

- Spain

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The judge agreed that Santiago Calatravas bridge had sufferedan alteration: a section of balustrade had been removed, and awalkway had been attached which was built in a completelydifferent style, using a support structure which broke with thedesign of the plaintiffs bridge. The grayish color also contrastedmarkedly with the white bridge. He concluded that the additionto the Zubi Zuri had without question altered its character.

The Spanish Law makes a clear distinction between the rights ofthe owner of the material work (Bilbao City) and the rights of itsauthor (Mr. Calatrava).

The fact that the city council is the legal owner of thearchitectural work does not entitle it to make alterations to thework which damage its authors moral rights. Nor does the fact of

the evident practical utility of the work i.e. enabling thecitizens of Bilbao to cross the river prevent the application andvalidity of the authors moral rights.

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In the final analysis, however, the judge determined that thelegitimate (private) interests of Mr. Calatrava with respect tothe integrity of his work must be weighed, not only in termsof his case against the city council, but also with respect tothe (public) interest of the citizens. For the people of Bilbao,the addition of the walkway to the Zubi Zuri enabled them toaccess the new Isozaki Atea complex on one level, withoutthe difficulty and inconvenience of walking up and downseveral flights of stairs.

In the conflict between these private and public interests, itwas the moral rights of the architect which lost. The Courtrejected Mr. Calatravas demand and ruled that, whilealteration of the work had certainly taken place, the right tothe integrity of the work was not breached because the

author is obliged to tolerate this in consideration of thepublic service that his work provides.

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On appeal the Court found an infringement ofmoral rights of Calatrava and awarded the plaintiff

Euro 30,000 due to the alteration of the bridge.

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+Right of integrity - India

Amar Nath Sehgal vs Union of India [2005(30) PTC 253].

Facts: in 1959, the Ministry of Works of theUnion Government of India commissioned atalented sculptor, Amar Nath Sehgal, to designa mural. The work was to adorn the wallsaround a central arch of the Vigyan Bhawan, avenue for important government functions inthe capital city. The mural was completed in1962. In its final shape, it measured a mammoth40 feet high and 140 feet long. For nearly 20years the mural attracted dignitaries and artconnoisseurs from all over the world. It becamea landmark in the cultural life of the capital.Then the Vigyan Bhawan buildings were

renovated. In the process, the mural was rippedoff the walls and the remnants put into store.

Amar Nath Sehgal vs Union of India

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the plaintiff (Mr. Sehgal) had assigned his copyright tothe defendant (the government) in an agreement dated

31st October 1960;

the defendant had purchased all rights from theplaintiff, and was consequently free to do as it pleased

with the mural;

the mural had already been damaged in a fire in theVigyan Bhawan;

Defenses:

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according to the terms of the 1960 agreement, any grievanceshould be referred to an arbitrator appointed by thedefendant.

Justice Pradeep Nandrajog of the Delhi High Court ruled that:"All rights of the mural shall henceforth vest with Mr. Sehgal."The court ordered the return of the remains of the mural tothe sculptor, and also slapped damages of Rs.500,000 (someUS$ 12,000) on the defendant. Ultimately, the matter wasamicably resolved. After the hard fought and emotionalbattle, Mr. Sehgal, grateful for his victory, waived the claim ofdamages against the government in exchange for the returnof the mural.

SOURCE: Binny Kalra, Copyright in the Courts: How Moral Rights Won the Battle of the Mural,

WIPO Magazine, April 2007, http://www.wipo.int/wipo_magazine/en/2007/02/article_0001.html

Defenses:

Documents

Moral Rights IP Fordham Law