Illustration by Rob Clayton
TO UNDERSTAND THE RISKS ANY ARTIST — MARTIN SCORSESE, Courtney Love, you — takes when signing a contract, it helps to start with Dr. Seuss. In 1968, Theodor Seuss Geisel (a.k.a. Dr. Seuss) sued a toy company called Poynter Products Inc. because it was marketing dolls based on his cartoons without his permission and, outrageously, putting his name on them. He hated the dolls, calling them “tasteless, unattractive and of inferior quality.” He wanted the courts to stop the company from making the dolls and from using his name.
Perhaps you can see what's coming. The courts ruled against him. Twice. They told him he'd signed away all his rights to the cartoons on which the dolls were based when he published those cartoons in Liberty magazine in 1932. That's the way copyright law worked until relatively recently: By signing away one right — the right to publish — you automatically signed away all rights. And that was not explicitly stated in contracts; it was just understood. Or not. Either way, if the matter went to court, business won and art lost.
Artists' rights in the U.S. are still pretty shoddy today. Artists have many more legal recourses and protections now than they did when Geisel was making his case, but mostly America's laws regarding artists continue to reflect our national attitude toward artists: These are weird, potentially dangerous people who often care less about money than is acceptable. That's true whether you're a painter, writer, cartoonist, songwriter, director, dancer, or anyone else who's trying to create something you want other people to see or hear. Business is our national art form, and business is deeply suspicious of art. So is our court system.
Right now an interesting smattering of lawsuits is dealing with this uneasy relationship among business, the law and art. There's Courtney Love, of course. Then there's the case the U.S. Supreme Court decided last month — in The New York Times vs. Tasini the court ruled in favor of freelancers and said the Times cannot put their work on databases like Lexis-Nexis without their permission. Jerry Greenberg, a photographer, just finished suing National Geographic. A bunch of freelancers are suing The Boston Globe. Last week, a federal court ruled that William Styron and Kurt Vonnegut, and not their publisher, Random House, hold the electronic publishing rights for various of their books.
These cases are about copyright — who owns the work? — and about contracts. They are also only the latest in a long line of artists' legal battles over those exact issues. Every time a new technology — like radio, or “talkies,” or the Internet — comes along, business and art fight for control of it. The lawsuits tell the story of that fight, and the case law that emerges then becomes part of the patchwork of legal rights artists have in the U.S.
I know I mentioned Courtney Love early on, but I'm not going to talk much about her lawsuit against Vivendi Universal, even though it's important, because it's been written about plenty. Instead, let's talk about freelance writers. If by chance you are a freelance writer, you might have noticed some odd additions to your contracts in the last few years. Lines like: “Publication claims all rights to the article in all media now existing or yet to be invented or imagined, and all other means and forms of exploitation, in perpetuity, throughout the universe.”
Officially, these are called “all rights” contracts. I call them “infinity times infinity” contracts. (L.A. Weekly doesn't use all-rights contracts, but does ask for electronic rights.) They are the publishing industry's hysterical power grab in response to the Internet and, to a lesser degree, to CD-ROMs. These are companies that have seen their profits decline steadily for years, and suddenly a way to reverse this trend revealed itself: reusing, repackaging and re-selling stories on the Internet and other media. For instance, the New York Times Company (which owns The New York Times, The Boston Globe and a bunch of small, regional papers) makes big bucks selling its content to Lexis-Nexis. The only thing publishers had to do to make this new money was make sure to get all rights, throughout the universe, to any story bought by the publisher.
But even as publishers changed their contracts, they started getting sued. Jonathan Tasini, head of the National Writers Union (of which I'm a member), and other freelancers sued The New York Times.
Meanwhile, Greenberg had been selling his photographs to National Geographic for 40 years. But when the magazine got ready to put out a 30-disk CD-ROM set celebrating its 108 years, including several of his photographs without his permission and without paying him, he sued. He pointed out that his contract said that after any given photograph was published, the copyright reverted to him. National Geographic countered that the CD-ROM was no different from having the pictures appear in bound copies of the magazine, or on microfilm, as they do in libraries.
The case clearly had big publishers freaked. Gannett Company, the New York Times Company, the Magazine Publishers of America, and the Newspaper Association of America all filed briefs supporting National Geographic. They lost, though. The court ruled in Greenberg's favor this past March, saying National Geographic violated copyright law and should pay Greenberg's legal fees.
Greenberg's case is a victory for freelancers, and so is Tasini. But all-rights contracts make those victories disappointingly narrow, since most current and future freelancers now sign away all the rights on which Greenberg and Tasini based their lawsuits. Often, that's how it goes when artists sue over their contracts: They win the battle but lose the war, as businesses regroup to close whatever loopholes the lawsuits slipped through.
BUT BOTH THE GREENBERG AND TASINI RULINGS ARE important, and the Supreme Court victory in the Tasini case in particular is a big deal — symbolically and actually. Publishers around the country have been trying to get more without paying more by pretending that it's not more, and Justice Ruth Bader Ginsburg, writing for the majority in the Tasini case, told them flat out that the Supreme Court isn't going to back them on that. When The New York Times sulkily threatened that an unfavorable ruling would force them to strip freelance articles from online databases, Ginsburg reminded them that there was another option: Just pay the freelancers. “In any event,” she concluded crisply, “speculation about future harms is no basis for this Court to shrink authorial rights Congress established.”
Lower courts will keep Ginsburg's opinion and the Greenberg case in mind when new cases — like The Boston Globe suit — come their way. In fact, Greenberg was already cited in the battle over Styron's and Vonnegut's books last week. Styron and Vonnegut sold the electronic publishing rights for some of their books — Sophie's Choice, The Confessions of Nat Turner, Slaughterhouse-Five and Breakfast of Champions, among others — to a small e-publishing company called Rosetta Books. Random House, which first published those books, went to court to stop Rosetta from putting them out as e-books.
Random House doesn't want the competition, of course, which is understandable. In its mind, the contracts with Vonnegut and Styron that give Random House exclusive rights to publish the work “in book form” automatically includes e-books. But that self-serving assumption of rights — if we have this right, then we also have that one, and that other one, etc. — is exactly what the major reforms in copyright law since Geisel's time have worked to undo. The rule since 1978 has been that any right the publisher doesn't specifically take for itself in a contract remains with the author. That's why Random House's contracts with Vonnegut and Styron go to the trouble of listing all the rights the publisher has — to license the works to book clubs, to reprint them, to put them in anthologies, digests, magazine condensations, and microfilms. E-book rights are not on that list, so the court denied Random House's request for an injunction against Rosetta Books. This is why all-rights contracts, which are starting to show up in book publishing as well as in magazine and newspaper contracts, are so dangerous. Their whole purpose is to undermine the crucial principle that each right in a contract must be claimed separately and specifically, and that any right not claimed remains with the author.
All these cases are definitely about money, but they're also about control. What artistic integrity means, in practical terms, is that you want to have control over how your art is presented to the public. That's what Courtney Love says her lawsuit is about — parent company Vivendi Universal doesn't understand her as an artist, and she signed with Geffen specifically to avoid being part of a big, anonymous corporation that wouldn't know how to promote her. Control is an even bigger problem for artists in the U.S. than money, because in our legal system, once you buy something, you're supposed to be able to do what you want with it, whether it's a painting or a Honda. So if you're a big corporation and you commission a sculpture for your front lobby, you want the power to move the sculpture anywhere you want, get rid of part of it if it's in the way, repaint it if you change the lobby's color scheme. Such changes are, of course, an artist's worst nightmare.
For years, artists of all kinds thought the way to end this nightmare was to get the United States to sign the Berne Convention, an international copyright law with a much more complete take on artists' rights than U.S. copyright law. Berne recognizes not just monetary rights, but also what it calls “moral rights,” which protect artists' visions for their artwork.
The first moral right, under Berne, is that artists are the sole judge of when their work is a finished creation, and whether and when it can be displayed. If artists renege on a contract, they're liable for damages, but a court cannot order them to deliver their work. Second, artists have the right to attach their name to their work, to prevent the work of others from being attributed to them, and to prevent their work from being attributed to others. This right is separate from copyright, by the way, so that even if artists sign away copyright to someone else, the artists, as creators, still retain this so-called “right of paternity.” Third, and perhaps most important, work cannot be distorted or altered once that work has been made public. So from the moment a movie is released, a book published, a song played on the radio, it cannot be altered except as expressly permitted by the artist.
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 program This American Life.