Moral rights protection in the United States and the effect of the Family Entertainment and Copyright Act of 2005 on U.S. international obligations.

• Author: Holland, Brandi L.

ABSTRACT

Alteration of a motion picture has become legal as a result of the Family Movie Act, an attachment to the Family Entertainment and Copyright Act approved by Congress and signed by the President in early-2005. The "family movie" provision, championed by U.S. Representative Lamar Smith, Chairman of the House Judiciary Committee's Internet and Intellectual Property Subcommittee, indemnifies any company that makes filtered versions of movies without authorization from the copyright owners. Proponents claim the bill is a way to put content-filtering back into the hands of individual families, while critics claim their copyrights are violated whenever a company redistributes their work for profit. At issue in this Note is this controversial law in relation to the United States' international obligations. The Family Movie Act appears to be contrary to our international obligations because it does not require the permission of the content creator or owner, but rather creates an exemption from copyright and trademark liability for filtering. The Author argues that there is a difference between enacting legislation that permits persons other than creators or authorized distributors of a motion picture profit from content filtration and a scheme that allows individuals, in the privacy of their own homes, to filter out undesired content. In fact, allowing a for-profit company to commercially market a product that alters an artist or copyright owner's artistic vision is a violation of moral rights--rights of the creators of the copyrighted works. The United States, as a party to the Berne Convention, is obligated to uphold and protect the moral rights of an artist. The Author further argues that the United States has historically provided inadequate protection to moral rights and that it should withdraw from the Berne Convention, accepting any associated sanctions. Otherwise, by disguising its minimal protections of moral rights, the United States seriously misleads foreign artists who desire to publish or distribute their works in the United States.

TABLE OF CONTENTS I. INTRODUCTION II. THE HISTORY AND INFLUENCE OF THE MORAL RIGHTS A. The Origins of the Moral Rights Doctrine B. International Focus on Copyright and the Birth of the Berne Convention C. The Universal Protection of the Berne Convention of 1886 D. The Contrast between European and Anglo-American Treatment of Moral Rights III. THE UNITED STATES' SLOW INDUCTION OF BERNE PRINCIPLES AND ATTEMPT TO COMPLY WITH ITS OBLIGATION TO PROTECT MORAL RIGHTS A. The United States' Initial Reluctance to Commit to Berne B. U.S. Compliance through WIPO-TRIPs C. U.S. Compliance through the Visual Artists Rights Act D. The United States' Defense to Copyright and Moral Rights through the Fair-Use Doctrine E. Gilliam v. American Broadcasting Companies, Inc. and its Refuge Under the Lanham Act [section] 43(a) F. Individual States Statutory Compliance Outside of Federal Law G. An Illustration of the Comparative Weakness of Protection in the United States IV. THE ENACTMENT OF THE FAMILY MOVIE ACT AND ITS IMPACT ON THE UNITED STATES' INTERNATIONAL OBLIGATION TO PROTECT ARTISTS' RIGHTS UNDER THE BERNE CONVENTION A. The Proposal of the Family Movie Act of 2004 B. ClearPlay's New Technology Finds Protection under the Family Movie Act of 2005 C. Where Does the U.S. Law Stand and Does it Comply with U.S. International Obligations? V. CONCLUSION I. INTRODUCTION

Many countries in continental Europe recognize that authors and artists have legal interests in their work that exist independently of the legal interest created by copyright laws. These legal interests remain with the author or artist even after the copyright is transferred to another party and the work is no longer in the hands of the author or artist. Among these legally recognized interests are four distinct rights that are collectively known as authors' and artists' "moral rights." (1) These moral rights include: (1) the right of integrity, under which the artists can prevent alterations in their work; (2) the right of attribution or paternity, under which the artists can insist that their work be distributed or displayed only if their name is connected with it; (3) the right of disclosure, under which the artists can refuse to expose their work to the public before they feel it is satisfactory; and (4) the right of retraction or withdrawal, under which the artists can withdraw their work even after it has left their hands. (2) For civil law countries, (3) moral rights are inalienable. In contrast, common law countries such as the United States historically have not recognized the collective moral rights as a legal interest. (4) By ignoring the legality of moral rights, the United States effectively renders unenforceable any attempt by an artist to retain such rights in a creation after transferring ownership of their work. In effect, the United States views moral rights as non-economic rights of the artist or author. (5)

There is an important distinction between an artist's economic rights and an artist's moral rights when related to copyright protection. (6) This distinction presents a basic divergence between the intellectual property law regimes found in civil law countries and those found in the common law countries like the United States. (7) The debate and controversy increased in recent years as the United States and the European Community struggled to determine whose policies concerning intellectual property would dominate the international legal order. (8) An important focus of this controversy concerns the Berne Convention on Copyright. Originally drafted in 1886, the Berne Convention requires that signatory countries provide protection for moral rights, particularly the rights of paternity and integrity. (9) For more than 100 years, the United States refused to sign the Berne Convention, because it disagreed with the protections afforded by the moral rights clause. (10) In 1989, the United States reversed its position and signed the Berne Convention, (11) claiming that U.S. law had evolved to the point where it could provide the minimal protection for artists' moral rights required by the Convention. (12)

As the new millennium emerges, the growth of technology and the internet has made it difficult to define the moral rights of artists, especially across the international marketplace. Often the difficult issue is determining whether there has been a violation of an artist's moral rights or whether a particular use of the artist's work is an exemption from violation. The United States recently enacted legislation that exempts many actions deemed by artists as infringements and violations of moral rights. This legislation--the Family Entertainment and Copyright Act of 2005 (13)--is comprised of four independent laws, including the law at issue in this Note, the Family Movie Act of 2005 (FMA). (14) The FMA amends federal copyright law to create an exemption from copyright infringement for: (1) the act of rendering imperceptible portions of audio or video content in movies by or for the owner or lawful possessor of authorized copies of such movies in the course of private home viewing; and (2) the use of technologies allowing such movie content to be rendered imperceptible where the technology does not create a copy of the altered version. (15)

FMA directly addresses copyright and trademark issues and also legalizes technologies such as those sold by ClearPlay, Inc. (16) ClearPlay employees review motion pictures and create software filters that remove offensive scenes and audio from movies. This process occurs without notice to or permission from the original authors, copyright owners (movie studios), or movie directors. (17) Essentially, artists argue that ClearPlay makes derivative works in violation of the Copyright Act (18) and that ClearPlay's editing software violates artists' moral rights by allowing lawful possessors (home viewers) to make modifications or other derivations from the original movies. (19) When Congress enacted FMA, the bill amended the Copyright Act and clarified the legality of movie filtering in the privacy of homes via personal DVD-players. (20) This amendment, however, fails to adequately protect moral rights and thus violates U.S. obligations under the Berne Copyright Convention, (21) a violation that is actionable under the WTO's TRIPs provisions. (22)

Part II of this Note presents an overview of the moral rights doctrine and discusses the historical and theoretical development of the doctrine in Europe, its treatment in the United States, and its relation to the Berne Convention. Part III of this Note examines the regimes under U.S. laws that purport to protect moral rights and comply with the Berne Convention. Part IV of this Note analyzes the impact of FMA, the dealings and procedures of companies like ClearPlay, and whether the U.S. will still meet its international obligations as a signatory to the Berne Convention. Part V of this Note concludes that the United States' compliance with the Berne Convention was already fragile, and enactment of FMA will most surely place the United States in violation of its duty to protect moral rights as a member of the Berne Convention and the WTO.

2. THE HISTORY AND INFLUENCE OF THE MORAL RIGHTS

   1. The Origins of the Moral Rights Doctrine

      In the late-fifteenth century, the introduction of the printing press to England spurred the beginning of a movement to protect authors from having their work duplicated. As the number of presses increased, so did unauthorized copying of authors' works. (23) The authorities sought to control the unauthorized duplication by granting publishers a near monopoly. (24) A confirmation of the monopoly given to publishers occurred through Parliament's codification of the Licensing Act of 1662 (Licensing Act). The Licensing Act established a register of licensed books that could only be administered and...