Green Eggs and Lawsuits

Directors are among the most insistent on the importance of moral rights. Martin Scorsese, Steven Spielberg, George Lucas and Sydney Pollack are big moral-rights advocates. They saw what happened to Otto Preminger when he tried to stop Columbia Pictures from airing an edited-for-television version of Anatomy of a Murder. The courts shot him down, saying his contract gave Columbia "television rights," which, in the courts' view, included editing his movie to fit TV's schedule. Besides, the courts said, the cuts Columbia was proposing weren't a big deal; they didn't radically change the movie. This is the same creepy oh-we'll-be-the-judge-of-that ruling the court made in the Dr. Seuss case: In the court's opinion, the dolls were cute and well-made, and he was making a fuss over nothing.

SO LET'S JUST SIGN THE BERNE CONVENTION AND STOP all this madness, right? Well, sadly, we already did, but in such a way that we might as well not have. Here's what the chair of the Republican Policy Committee wrote after Berne was approved in 1988: "Its provisions are not directly enforceable in U.S. courts; instead, the private rights granted by the Convention exist only to the extent provided for by U.S. law." Translation: Berne isn't giving American artists any rights they don't already have, and since U.S. courts have been dismissing the idea of moral rights for decades, that's not going to change.

Even the Visual Artists Rights Act (VARA) of 1990, an attempt to introduce a new law specifically granting some moral rights, hasn't changed the landscape much. VARA only protects "works of visual art," and even then only single copies or limited editions of 200 or fewer. Almost immediately after VARA was passed, three artists tried to sue Helmsley-Spear Inc. under VARA, to prevent the company from destroying a massive sculpture they'd installed in a building Helmsley later bought. The artists lost. So much for VARA.

One of the only bright spots on the gloomy moral-rights horizon is a case brought by the members of Monty Python in 1976, when ABC tried to broadcast severely edited versions of three of their programs. Monty Python had given ABC permission to air the programs, but when the group saw the edited versions, they filed an injunction to stop the broadcast, saying the editing "impaired the integrity" of their work. They couldn't go after ABC for copyright infringement, because they'd given permission, so they sued under federal trademark law, the Lanham Act, which protects against "misrepresentations that may injure [a person's] business or personal reputation, even where no registered trademark is concerned."

The federal court of appeals in New York ruled in Monty Python's favor, and in the process gave a rather moving sermon -- though slightly dry -- on behalf of artists' rights. The court wrote:

American copyright law, as presently written, does not recognize moral rights . . . Nevertheless, the economic incentive for artistic and intellectual creation that serves as the foundation for American copyright law . . . cannot be reconciled with the inability of artists to obtain relief for mutilation, or misrepresentation of their work to the public on which the artists are financially dependent. Thus courts have long granted relief for misrepresentation of an artist's work by relying on theories outside the statutory law of copyright, such as contract law . . . Although such decisions are clothed in terms of proprietary right in one's creation, they also properly vindicate the author's personal right to prevent the presentation of his work to the public in a distorted form.

I hope you enjoyed reading that because you're not going to see that kind of language in other court cases. Judges don't usually see trademark law as protection for artists.

Let me reiterate: We are a nation of business people, and we find art and artists threatening. We will take artists' concerns seriously only if they don't cut significantly into the profit of some industry. VARA, our only real post-Python attempt to grant moral rights, doesn't cover movies, for instance. Why? Because the movie industry wouldn't have it.

What's frustrating is that one of the smartest lines ever written into the U.S. Constitution is the copyright clause -- the foundation on which all later copyright laws rest. Copyright exists, according to the Constitution, "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In other words, the point of copyright is to serve the public good, to make our country a better, more interesting place by giving artists and scientists a financial incentive to keep doing what they're doing. When you get down to the Constitution, artists aren't scary freaks, they're all-American. We just have to keep reminding the courts and Congress of that.

Nancy Updike is a contributing editor to the public radio programThis American Life.