A Tale of Two Composers: an Argument for a Limited Expansion of Moral Rights for Composers

• Publication year: 2016

A Tale of Two Composers: An Argument for a Limited Expansion of Moral Rights for Composers

Cassidy Grunninger

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A TALE OF TWO COMPOSERS: AN ARGUMENT FOR A LIMITED EXPANSION OF MORAL RIGHTS FOR COMPOSERS

Cassidy Grunninger^*

Table of Contents

I. INTRODUCTION: PART 1 - A TALE OF TWO COMPOSERS.................. 166

II. INTRODUCTION: PART 2 - THE PROBLEM............................................. 167

III. WHAT ARE MORAL RIGHTS?.....................................................................169

A. AMERICA'S TRADITIONAL APPROACH TO MORAL RIGHTS...........171

IV. THE BERNE CONVENTION.......................................................................172

V. VISUAL ARTISTS RIGHTS ACT (VARA)...................................................174

VI. INCORPORATING MUSIC INTO VARA....................................................175

VII. CONCLUSION...............................................................................................176

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I. INTRODUCTION: PART 1 - A TALE OF TWO COMPOSERS

Carter Pann¹ and Kevin Beavers² are in many respects very similar composers. They met at the University of Michigan while they were each pursuing doctorates in classical composition, and have not only stayed close friends but also have had successful careers as composers. Pann is a tenured professor of composition at the University of Colorado Boulder and was a finalist in the Pulitzer Prize for Music this year,³ while Beavers is a freelance composer in Diisseldorf, Germany.⁴ The Diisseldorf Symphony Orchestra is premiering one of his symphonies in March 2016.⁵ However, they each offer a unique perspective on their experience with the legal aspect of their careers, and live in two distinctly different legal arenas—Pann working mainly in the States, while Beavers now lives in Germany.

Even though Beavers has moved to Germany, he still mainly publishes through an American Publishing house. During a conversation about his music, Beavers expressed frustration over a lack of control over how his music is used.⁶ He noted a piece of his used in a video or short film that was edited beyond recognition.⁷ When he heard the final product, it did not sound similar to the original work at all.⁸ However, there was nothing he could do about his music because the user had legally purchased it.⁹ Perhaps Beavers feels the frustration over this lack of control more acutely because he lives in a country that has more protections and moral rights built into the legal system and has been exposed to how a system could work. Unlike some, he has direct experience and perspective with both systems and how they impact him and his work.¹⁰ When asked if there was anything to be done, Beavers mentioned that he could possibly cease publishing through American houses and move his catalogue to German publishers, through which he would have more control over his music.¹¹

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On the other hand, Pann has never lived outside of the States, and publishes his catalogue through Theodore Presser.¹² However, when asked if he has experienced similar frustrations as Beavers, he stressed the importance of the contract between him and Presser, protecting him as a composer. He noted, "Each of the works I have through Theodore Presser is under copyright. Presser protects the copyright, but I retain the right to the music."¹³ He further stressed that he has the control to rescind the contract whenever he wants—to pull one or all of his pieces without penalty.¹⁴ Moreover, the licensing department of Presser must contact him for approval before it grants permission for use of his music in film or similar.¹⁵ During this process, Pann can contract exactly how he will allow his music to be used and just hope that the performers follow his wishes. Pann believes that the contract system in the United States does a fair job of protecting his music.¹⁶ Nevertheless, he did say that if he wanted to renegotiate his contract that he potentially does not have much power, admitting, "Power dynamic before contract time is proportional to the demand of the product."¹⁷

So where is the balance? What is the correct equilibrium between relying on the power of the contract while still recognizing unalienable legal rights? Though the United States relies and depends heavily on contracts and one's autonomy to enter into contracts, there still needs to be a safeguard against an inherent power imbalance.

II. INTRODUCTION: PART 2 - THE PROBLEM

In the United States, composers of commissioned musical pieces have no property rights after selling their compositions. The new property owner can manipulate, splice, fraction, and change the piece at will, yet still attach the composer's name to it. The composer has no right to say how the piece can or should be used, and further, cannot disassociate his name from a piece that no longer sounds like the original work after the rights to the piece have been bought.¹⁸ A limited expansion of composers' moral rights in their commissioned or for-hire pieces will help composers maintain a stronger hold

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on their artistic integrity and avoid potential harm to their public image by having more autonomy in the use of their product.

A composer's musical sound is his trademark. People identify composers by this sound. The artist's image, as well as his ability to bring in other commissions, suffers if his pieces do not have his trademark "sound."

The United States should adopt a limited expansion of moral rights of composers in regards to commissioned and for-hire works, incorporating and adapting the European approach to moral rights as a viable format for change. As American composers gain recognition nationally and internationally, they should have more control over the use of their respective art after its sale. Moreover, because European Union (EU) and European law favor composers and artists, many composers increasingly choose to publish their works in European, rather than American, houses.¹⁹ Composers maintain more rights in their works abroad, and this can potentially result in a loss to the American industry.

There are multiple examples of both American and European composers who are extremely unhappy with how their music is handled. For instance, Italian composer Ennio Morricone disputed with Quentin Tarantino over the use of his music in the movie Django Unchained. Morricone said that he would not collaborate with Tarantino again because Tarantino "places [Morricone's] music in his films without coherence."²⁰ While Morricone ultimately reconciled and collaborated with Tarantino again on his movie The Plateful Eight (winning a Golden Globe for his score),²¹ this is a good example of ways in which the American market can be impacted because of lackluster protection for the artists.²²

The United States, through its subpar artistic protections, is potentially incentivizing artists to look elsewhere for work, in places where there is more control over the ultimate use of the music. The United States leans heavily on protection through contract writing, as Carter Pann indicated in his experience. However, additional legal rights will help to act as a safeguard against the

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potential power imbalances that contractual writing cannot protect against, especially for composers who are new to the field.

Looking to the European model, this Note will explore various ways the United States could integrate expanded property rights into the current intellectual property laws and why American law needs these additions. First, Part III of this Note will discuss what moral rights are and how they fit into the current American legal landscape. Part IV will discuss the history of the Berne Convention, and the United States' participation in the treaty. Part V will discuss the Visual Artists Rights Acts (VARA) and how it comes up woefully short in protecting the full range of the arts. Finally, Part VI will discuss how specific musical arts could be incorporated into the already existing framework of VARA to begin the process of broadening the protections for artists and allowing for more control of an artists in regards to his work.

III. What are Moral Rights?

This Section will discuss the commonly recognized moral rights and what they allow for the artist, in terms of legal action. Moral rights are the inherent and mostly inalienable rights an artist has in their creation.²³ These rights do not simply exist as long as the artist possesses his creation. Rather, moral rights follow the art from its inception and creation throughout its existence, from artist to owner to any future owner.²⁴ Moral rights acknowledge that the artist or creator possesses and will continue to possess a vested interest in his art, even after selling it.²⁵ Most importantly, these rights give an artist an actionable grievance under law.²⁶ While the concept of moral rights is generally considered to have originated in France, now over 160 countries recognize these rights in their laws.²⁷

Commonly recognized moral rights include the right of integrity, the right of attribution, the right of disclosure, the right of withdrawal,²⁸ and droit de suite, or the right to follow.²⁹

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The right of integrity refers to an artist's legal right to prevent any destruction or alteration of the work without the artist's prior permission.³⁰ This right allows artists to maintain some control of their work even after they have sold it to a third party.³¹ This right operates under the assumption that the artist will always have an invested interest in his work, even after he has sold the art and it is no longer in his possession.³² As an example, if an artist sold a painting to a buyer and then learned that the buyer planned on setting said painting on fire, the artist would have a legal right to get an injunction against the buyer. The artist would be able to prevent the buyer from destroying or permanently altering the work, despite the fact that the artist no...