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CONGRESSIONAL PLEA FOR FAIRNESS: TRANSCRIPT OF DIRECTOR FRED ZINNEMANN'S TESTIMONY

8/1/1998 12:00:00 AM

"Honorable members of Congress, I speak to you as a person who has spent 60 years in the motion picture industry. You must know by now that many American moviemakers have an enormous grievance about the way their work is mutilated and their reputations damaged, without any chance, whatever, to put up a legal defense. It is difficult to imagine that this can happen in a civilized country which is supposedly proud of having actually invented the motion pictures that we know today.

"According to present law, the copyright holder has the right to have any number of scenes cut out of the film to make room for advertising, to have the projections speeded up to fit a TV time slot, to change large figures into close-ups or to take a black and white movie and colorize it by computer. "CITIZEN KANE" was about to be destroyed in this way when a clause was found in the contract which put a stop to it.

"Speaking for myself, two pictures which I directed, "THE SEARCH" and "THE SEVENTH CROSS," have already been colorized. I understand the result was horrendous. There have been public protests about it. I wonder if this will happen to other films I have directed such as "FROM HERE TO ETERNITY" or "HIGH NOON," where I deliberately adopted an old fashioned primitive style of photography to make the film look like a newsreel.

"There exist laws that protect all sorts of work by all sorts of artists: writers, painters, composers, photographers, sculptors. Why are filmmakers not protected in the same way? Films are not just the property of the copyright holder, they are part of our heritage. Future generations must have the right to see them in their original form. If they have been tampered with, their titles should be changed as they are no longer the same films.

"As members of Congress, you gentlemen are supposed to be the guardians of our civilization. As taxpayers and voters, the filmmakers are asking you to respect our moral rights by giving us a strong federal law so that we can challenge injustice in the courts of this country. We ask you to do it soon before film, as an art form, has been destroyed. You are responsible to us." 

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AN IDEA BEHIND ITS TIME: PERSONAL RIGHTS FOR CREATORS OF COPYRIGHTED WORKS

Don E. Tomlinson

1/1/1998 12:00:00 AM

It's been the law in most of Europe for more than a century. It's quite simple, really. It just says that regardless of the sale of the copyright by the creator or "author" of a work, some rights are not -- in fact, cannot -- be conveyed by the creator or author to any second party. These are called "moral" rights, but "personal" may be a better way to think of them because it avoids the definition of "moral" in English, a definition that is contextually misleading.

At its most basic level, the "law" is stated in Article 6bis of the Berne Convention, the most significant of the international copyright treaties. It states:

"Independent 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 derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."

Congress has been hostile to this idea all along. In fact, one of the primary reasons America did not become a signatory to the Berne Convention until the 1980s (the treaty opened for signatures in the 1880s) is that the copyright ownership industry had strenuously objected to America signing this treaty if it meant that Article 6bis had to be strictly adhered to (America decided to circumvent the problem by paying lip service to Article 6bis by granting such rights on a very limited basis to the narrow copyright category of visual artists). The philosophy underlying copyright law in from the beginning has been that it is economic rights -- not personal rights -- that are to be vindicated.

Some vestiges of personal rights, however, have found their way into the law; except in the case of visual artists, you just have to look for them. One place to look concerns sound recordings. Once a sound recording of a new song has been released for sale by a record company -- with the required express permission of the copyright owner of the underlying musical composition -- subsequent record companies may record and release versions of that same song without permission of the copyright owner of the underlying musical composition. In copyright law, this is called the "compulsory license" provision. There is, however, an exception to this provision. It is Section 115(a)(2) of the Copyright Act of 1976, which states:

“A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work ... except with the express consent of the copyright owner.” It is obvious that a personal right is inherent in this provision. It is a recognition that "integrity" should play a part in what users can do with copyrighted matter. Of course, it is the copyright owner and not the creator (assuming the creator is no longer, or never was, the copyright owner) to whom this right is assigned, but the principle is evident nonetheless.

Other parts of the copyright act signal this same idea. Most specific is Section 106A, which grants rights of attribution and integrity to the authors of works of visual art. These rights include the right "to claim authorship of the work," the right "to prevent the use of his or her name as the author of any work of visual art which he or she did not create," the right "to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation," the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right," and the right "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right."

While Section 106A is limited to "visual art" (which, by definition, does not include motion picture images), Section 106 contains the "bundle of rights," which are applicable more generally to the various categories of copyrighted works, including Section 106(2), which grants copyright owners "the right to prepare derivative works based upon the copyrighted work." And while the basic underlying principle behind this right is clearly economic, it may nonetheless be said that an "integrity" right is inherent in it, as well, because a closely-related but, e.g., poorly done derivative work could be quite reputationally injurious to the creator. As with the compulsory license limitation, the right to prepare derivative works belongs, once again, to the copyright owner, but the principle is still unmistakable.

We have recognized integrity, and other personal rights, in our copyright law on a more or less "peek-a-boo" basis for quite some time. Taking the next step and explicitly recognizing personal rights for authors is clearly warranted and long overdue. To be sure, there are compromises to be discussed and there are complications based on digital technology to be dealt with, but for too long we have denied the central premise -- which is that creators should have some rights that are inalienable. Alienability, given the strength of the copyright industry and the relative lack of strength of creators, would make shadow of substance in any grant of personal rights to creators, but that is a subject for another day.

Don E. Tomlinson is a professor of journalism and mass communication at Texas A&M University and adjunct professor of law at the University of Houston Law Center. Tomlinson publishes extensively on copyright and media law topics, and he has a considerable practice as a complex litigation mediator and as a consultant on copyright and media law matters. LL.M (Intellectual Property), University of Houston Law Center, J.D., University of Arkansas at Little Rock School of Law, M.J., University of North Texas, B.S., Arkansas State University.

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ARTISTS RIGHTS FOUNDATION AIMS TO GUARD PIC INTEGRITY

Robert Koehler

1/1/1998 12:00:00 AM

The picture may speak a thousand words, but even a million words may not be enough for Hollywood's creative artists to change seemingly invulnerable copyright laws.

Yet, spurred by advancing technologies that can alter the film image far beyond what a film's creators originally conceived -- as well as a generation of Hollywood cineastes such as Martin Scorsese who believe in the primacy of film as art -- a cadre of directors, writers, cinematographers and other visual craftspeople are organizing as never before.

A key element in their frontal charge is the Artists Rights Foundation, a non-profit organization founded by the DGA in 1991 and quickly bolstered with an alliance including the Writers Guild, the American Society of Cinematographers, the American Cinema Editors, the Screen Actors Guild, the Society of Composers & Lyricists and the International Photographers Guild.

"The DGA," foundation president Elliot Silverstein explains, "was largely paying the freight for this effort initially, but everyone who is involved on the artistic side of filmmaking realized that this effort was in their interest. The light a cinematographer intends for a scene can be altered with colorization, or the color of costumes can be changed digitally in an instant. From the Directors Guild's side, we realized that we didn't have to be unilateral about this, and so we reached out to everyone in the creative community."

The foundation's fundamental purpose is to educate those in the industry and the viewing public about growing threats to the integrity of movies as filmmakers conceive them, with the ultimate goal of the U.S.' adhering to the internationally recognized artists rights contained in the Berne Convention, the international copyright convention to which the U.S. is one among 100 signatories.

While other Berne signatories such as and recognize not only the individual's commercial rights inherent in copyright but the moral rights of the creative author of the work, the has interpreted these provisions differently. "Berne intends to protect the rights of the individual," says Silverstein. "The tries to get around this by identifying corporations as persons."

Hollywood's moral rights advocates, led prominently by directors Martin Scorsese, Steven Spielberg, George Lucas and Sydney Pollack, cinematographer Allen Daviau and actor-producer Tom Cruise, argue that the following American reading of copyright protection flies in the face of Berne. They cite this clause in Berne as bolstering their claim to artistic rights: "Independently of the author's economic rights, and even after the transfer of 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 and reputation."

With rare exceptions (such as the late John Cassavetes), filmmakers do not own their films outright, and have not been able to claim artistic ownership in a court. The result, foundation members say, has been some dramatic alterations and distortions of movies as they are seen on video, laser disc or TV broadcast:

TV airings of "LAWRENCE OF ARABIA” that adopt the pan-and-scan technique to electronically pan across a widescreen image will show either Peter O'Toole's Lawrence blowing toward a candle, or the candle itself, but cannot show both.

Colorization of "IT’S A WONDERFUL LIFE" changes the mood of James Stewart's nightmare into a bright, bubbly Bedford Falls, not the dark, black-and- white moodiness of Frank Capra's original.

Such meticulously crafted sequences as the climax of George Cukor's "GASLIGHT" can now be electronically "speeded" so they fit into a TV broadcast's timeframe.

And beyond the frequent trimming of a movie from its theatrical release for its life on a video shelf or a TV screen, comes now the inclusion of a scene from one work into another, such as scenes from Spielberg's "DUEL" inserted into "THE INCREDIBLE HULK." With motion picture authorship in the exclusive hands of corporations comes, Silverstein argues, "an absurdity. A corporation claiming to be a person is absurd."

But because of this linkage of commercial and moral rights held by corporate entities, what Silverstein terms the "gang rape" of movies continues.

Foundation supporters freely describe their efforts as "uphill" and "long-term," but the group's various projects appear to be gathering momentum. Robert Wise is preparing a feature film, "WHO DID THAT?", while Joe Dante is readying a short, " NOW YOU SEE IT, NOW YOU DON’T," both of which will serve as educational tools to dramatize the effects of serious alterations and distortions of the movie image.

The first issue of a newsletter for foundation supporters is set for distribution at the end of November, while the foundation’s new web site (www.artistsrights.org) is already up, with enhanced graphics and more expanded user tools being added weekly.

While the foundation's usual work -- such as the annual John Huston Award for Artists Rights (won this year by Scorsese) and symposia -- continues, its legal defense fund supports an ongoing effort to find a test case of artistic rights violations by which the Berne provisions can be tested.

"We've come close to a test case," Silverstein says, "but we want to be very careful, so our lawyers feel they can prevail in court."

 

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THE CURRENT STATE OF FILM PRESERVATION

Martin Scorsese

9/22/1995 12:00:00 AM

In this past decade we have witnessed a growing awareness of film preservation. However, the deterioration and eventual disappearance of films have not come to an end. We're still racing against the clock to save what we can.

There are two areas of film preservation that each have their own unique problems. The first is the film libraries owned by the studios, which represent the majority of American films. The second area is orphaned films — meaning films in the public domain or owned by small companies that have no money for restoration; this also includes documentaries, newsreels, independent features, shorts and avantgarde films. In both areas, many of these titles have to be transferred from nitrate to safety stock — 100 million feet to be exact.

Regarding the studio libraries, there has been substantial progress — to different extent.

Regarding orphan films, the problem is overwhelming. Just the cataloguing is a daunting task. This is the area where major losses have already occurred and continue to occur every day. Whereas it was relatively simple for The Film Foundation to help build a bridge between the studios and archives, with orphan films there is nothing to build a bridge to — when work happens at all, it happens at random, by chance or by luck.

The National Film Registry has been valuable in the recognition of film as a vital part of our cultural heritage. However, the challenge in our country is so large and so costly that it requires a unique partnership bringing together resources from many different areas — the private sector as well as public and government institutions. Each area has its contribution to make, but no one can get the job done alone.

It is important to emphasize that the best case of all for preservation is made when films are seen and appreciated by audiences. Screening preserved films serves as a reminder of a precious and vital part of our culture.

During these last few decades, technology has evolved in unforeseen ways. In the 1960s, film libraries were thought to have no value whatsoever — they were just a storage expense. Just consider how the situation has changed.

We foresee a future in which technologies will bring a new cinema, born out of those technologies. Perhaps cinema as we have known it in these past one hundred years will really become a part of the past. If so, that is one more reason to save what we have and, most of all, to preserve the negatives as an irreplaceable source.

The Film Foundation will continue to work with the studios and support joint projects studio-archives.  

It will also support a proposed mechanism called The National Plan, spearheaded by the Library of Congress, which would call for a dollar-for-dollar match of contributions from the government and private sectors to preserve orphan films.

Films of the past are alive as part of our own creative work in the present. As Peter Bogdanovich said recently, "There are no old movies, but movies I have seen and movies that I haven't seen."

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