In this transcription of a symposium on the changing rights of the artist, Jonathan Band (partner at Morrison and Foerster), Rebecca Tushnet (Asst. Professor at NYU Law School), and Eugene Mopsik (Executive Director of the American Society of Media Photographers) discuss the rights of the directors whose films are edited by ClearPlay technology. Band recounts the comments of various lobbyists and political figures testifying on the Family Entertainment and Copyright Act, stating that the Register of Copyrights argued against the bill because users have the choice to buy a product and should simply refrain from buying an offensive product rather than disrespect the vision of the author. Jack Valente also testified against the bill because he felt that the technology indeed infringes on the derivative work right because the software could be designed to skip not just offensive content, but any content. Mopsik addresses the concern that viewers attribute the features and feel of the edited work to the director’s vision. Lastly, Tushnet acknowledged that there is a “spectrum” of acceptable editing (ClearPlay is acceptable while CleanFlicks is not), and that consumers watching a CleanFlicks DVD have the same experience as consumers watching a ClearPlay DVD.
This piece supports my thesis as it discusses some of the immediate political reaction to the legislation that legalized ClearPlay. Even though FECA is now a law, the arguments made above against the legislation are still valid, particularly Valente’s argument. Mopsik’s discussion of attribution is more in depth than those in other articles, which mostly discuss whether or not a consumer knows the film is edited, and instead analyzes who the vision belongs to rather than who has the right to decide the vision.
In this article, which appeared in the Santa Clara Computer and High Technology
Law Journal, Aaron Clark argues that even if moral rights were applied to video filters like ClearPlay, the technology would not infringe on those rights. Clark quotes the case in which moral rights were first defined using the Lanham Act: “The purpose of the Lanham Act is to prevent misrepresentations, such that the author of an original work is not “present[ed] to the public as the creator of a work not his own, and thus [keep him from being] subject to criticism for work he has not done” (Gilliam, 538 F2d at 24 as qtd. in Clark 70). Under that definition, it seems that ClearPlay is violating the Lanham Act. However, Clark explains that this case was the only one in which moral rights were defined in this way, meaning that any application of the Lanham Act would be an unlikely exception to the rule. In fact, the argument was really only valid in that case because ABC did not tell viewers they were editing the piece in question and viewers might miss a disclaimer aired at the beginning of the special, and because the viewers could not compare the edited and non-edited versions. ClearPlay, on the other hand, makes it clear that the films are edited.
This article complicates my thesis, especially in its dissection of the first use of the Lanham Act in defending moral rights. While it is difficult to argue that consumers do not know the film is being edited—they may buy the film because they know ClearPlay will edit it—it may not be possible for them to compare the edited and non-edited versions. In fact, this argument is particularly true when the intended consumer is imagined: it is not just the parent, likely familiar with the film, that watches the film, but the child who may not know anything of the original film or know that anything is missing. In fact, the child viewer may not even know that he or she is watching an edited film. Although the child is not the one buying the film, he or she is largely the reason the technology was created, and the effect on them of the film’s edits should not be forgotten.
Philip Vineyard’s article, from the Tulane Journal of Technology and Intellectual Property, argues against the introduction of moral rights into U.S. copyright law. Vineyard believes that, considering the country’s relationship to the Statute of Anne, “A court should balance ‘societal benefits [in] expand[ing] public access’ to an authors’ works against the likelihood that too much expansion ‘might reduce the supply and variety of original works available by impairing the incentives for their creation’” (Lunney as qtd. in Vineyard 232). Whereas Cline’s previously discussed argument raises concerns that ClearPlay changes a consumer’s reputation because they may believe the director has approved the technology’s edits, Vineyard believes that the consumer knows that material is being skipped over and therefore the Lanham Act is not applicable. Furthermore, the availability of ClearPlay will, if anything, benefit the public interest by making more films viewable for consumers.
This argument complicates my thesis in a positive way because although an argument for moral rights is a tempting one to make against ClearPlay, it is both too simplistic and too difficult to make. The likelihood of moral rights legislature being introduced in order to protect films is low, especially after copyright law has existed for so long without it. It is difficult to say whether or not the consumer knows that material is being skipped over, and to what extent. This raises an interesting point of contention with the technology: do the consumers buy the film knowing that there is lewd content and if so, do they know how much is present? Is it assumed that the person buying the film has seen it before (such as a parent), and is going to show the film via ClearPlay to someone unfamiliar with the film and the director’s work (a child)? If so, ClearPlay is indeed infringing on the director’s reputation under the Lanham Act, regardless of moral rights.
This reading provides an excellent introductory comparison of copyright in the United States versus other countries. It explains how copyright here is based on economic concerns, while copyright in other countries, such as in Europe, have a natural-rights conception, which takes into account moral rights of the author. This essay compares a state statute, the California Art Preservation Act (CAPA) to VARA. It is useful to compare a state law to a federal law, because often times the question of which is right, if they are conflicting, arises. In this case, the federal law can trump the state law if it says so explicitly or by enacting a contradictory piece of legislation. It is important to note the fact that while the artist is living, CAPA is not likely to be applicable because VARA is a federal law and takes precedence, but when the artist dies and is therefore no longer protected by VARA, the artist is protected by CAPA. The issue is brought up that in trial, expert testimony is necessary to determine whether the work of art is of recognizable stature. The issue of mural conservation is raised, because conservation often requires practices that if not done carefully and correctly, can ruin or damage artwork.
This article is an important implication of the extension of VARA to protect specific works under specific circumstances (murals during conservation projects). Garfinkle provides recommendations to mural artists so they can avoid having to worry about their rights under VARA or CAPA. She also provides recommendations to property owners, so they can protect themselves from lawsuits. Because some states provided protection for moral rights before VARA was created, comparing VARA and CAPA is useful because there could have been some parts of VARA that came from state laws. By understanding state laws we can see other ways that moral rights are incorporated into United States law, because copyright law in the US was only concerned with the economic rights of the authors or artists until VARA, so this is a new addition; therefore, background information and relevant laws are useful.
Included in the Visual Artists Rights Act is a directive stating that studies must be conducted by Congress to assess the impact of the waiver clause of the act. This reading is from the United States Copyright Office and it is a summary of the VARA and its significance. It also assesses its impact on copyright in the United States. The studies assess whether the state statutes and regulations of moral rights really should be applied where they are designated. The moral rights in other countries are touched upon, so as to compare to the United States law. Since the Berne Convention, other nations have become more concerned with preserving the relationship of the author with his or her work. Interestingly, in the United States, although moral rights were not a part of the federal copyright law prior to the VARA, some states (through various court cases) have enacted moral rights laws. Such cases as Carter v. Helmsley-Spear, Inc are described to show how moral rights have been incorporated since VARA. The US Copyright Office also issued a survey that was disseminated to art related organizations. The purpose was to figure out what they knew about VARA, whether artists had been asked to waive their rights, and it sought to determine the impact of VARA, directly from the source.
This examination by the US Copyright Office is fairly extensive, and provides evidence to show that including moral rights into federal law in the United States is faced with doubts. This reading shows that after laws are passed they do not just become part of the legislative circulation and then forgotten, but that they are consequently studied and questioned. This shows the progressive nature of the legislation process. Specifically with regards to VARA, the fact that required studies were part of the act shows that doubts were in place before its passage. Including moral rights of any kind in United States Copyright Law was not done before this act was passed, so no one knew how this would turn out. Because VARA is also a new type of legislation, the fact that this article highlights that many who could be protected by VARA do not know about it, shows that more information needs to be disseminated to the public regarding new legislation.
This article examines the Visual Artists Rights Act as applied to digital graphic art. It first defines moral rights as “the rights of the artist to create a work, to display the work to the public in whatever form the artist chooses, to withhold the creation from the public, and to demand respect for the artist’s personality as the creator of her works.” The article then further breaks this summary down into categories. An interesting distinction made is the fact that copyright extends beyond the life of the author (oftentimes) but moral rights do not. This article provides a basic summary and background of VARA, and lists various specifications for what defines a work that would be protected. VARA was introduced into the United States Copyright Law following the Berne Convention’s moral rights code; however, unlike the European version, it only covers visual artists. Based on what the act uses to define painting and drawing, it is arguable that digital works should be protected. Interestingly, the article states that Congress designed VARA so that it would “evolve with the artistic community” and under VARA, digital art is considered visual art. The article then illuminates what is within VARA’s scope of protection, and discusses the two integrity rights and three attribution rights. It also highlights the importance placed on the honor and reputation of the artist. How VARA relates to state legislation is discussed, and the fact that state laws do not always cover moral rights, but they do highlight certain topics like trademarks, that could be associated with an artist’s moral rights. Further recommendations are made as to how attorneys should represent their clients who are trying to claim protection under VARA, and whether that is feasible under the guidelines listed.
This article is an example of what is continuously discusssed regarding new technology constantly changing the world of copyright. It is important to note how with the changing times, laws are now a little more broad in their reach, so as to seem more progressive. The discussion of representing clients who feel their rights have been violated and are claiming protection under VARA is crucial to understanding how the act is carried out in reality. The fact that understanding why the work was created and the medium that was used, among other factors, are important to note to understand the scope of VARA.
This is the text for the Visual Artists Rights Act of 1990. The first section defines a work of visual art as "a painting, drawing, print, or sculpture" or "a still photographic image produced for exhibition purposes only" The work has to have no more than 200 copies, and each has to be signed and consecutively numbered by the author. This act protects the works of authors in the visual artistic field, and allows the authors to take credit for their work, and also to remove their name from any altered version of that work. The author can also prevent intentional changes of their work, especially if it would hurt the author's reputation. This also enumerates certain exceptions and also the duration of the rights, which is the life of the author. The act also has a transfer and waiver section that lists that rights cannot be transferred, but the author can waive them. In addition, if the work is part of the structure of a building or something of the sort, then the owner of the building needs to get permission from the author in order to remove his or her work. However, if the moving of the work will not ruin or destroy it at all, then it is permitted.
This act is the basis for subsequent cases and claims of copyright for visual works. The Visual Artists Rights Act of 1990 (VARA) adds more specifics to the United States Copyright Act of 1976. The extension to include visual artists works is an example of how changing times need new legislation. Under the original act, visual works are somewhat protected, but VARA gives more rights to the authors. Under VARA, the author can still control what is done with and to his or her work, even if he or she is not the owner of the physical piece. This is a major step forward in the United States copyright realm, because this is the first time that moral rights are given to authors; although, in Europe author’s already had moral rights.
Zakolski LA. Exclusive Rights in Copyrighted Works; Exploitation of Artistic and Literary Property A. Exclusive Rights 2. Visual Arts. American Jurisprudence 2, September, 2008.
This is a treatise from the Westlaw database, and is specifically from AMJUR. Just like most of the other readings, it first outlines the Visual Artists' Rights Act. Interestingly, it states that the rights under VARA only apply to the creator or owner of the work, regardless of if that author is the copyright owner. The main body of this piece of research summarizes court cases having to do with VARA. In such cases as, Pollara v. Seymour, 150 F. Supp. 2d 393 (N.D. N.Y. 2001), a precedent was set that just because the work was not actually up for exhibition, does not mean it does not get protection under VARA. Citing Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003), it was determined that when a banner is hand painted but used for a political message, and specifically when paid for by the organization that the message is for, then it is not protected under VARA. In another noteworthy case that is mentioned, Martin v. City of Indianapolis, a ruling was made regarding “recognized stature.” This stated that although the city claimed that it did not know the work was of prominence or supported by VARA, the fact that there were newspaper and magazine articles about the work prove that the city had access to the information; therefore the city could not claim ignorance.
This research examines the scope and implication of VARA, and exemplifies how VARA was put into use. By compiling summaries of major court cases, the treatise allows quick access to decisions regarding VARA; thus prompting further research and exploration about the topics discussed. These cases highlight how works are not protected if they are considered “work for hire” and that if sufficient information is available to the public about the significance of a work, someone cannot damage or destroy it and then claim lack of knowledge. It is necessary to research these cases further to analyze their significance entirely, but having a quick summary is useful to get the main points and facts that resulted from the decisions.
Clevenger JE. Proof of Infringement of the Visual Artists Rights Act of 1990. American Jurisprudence Proof of Facts, 3, July 2008.
This proof of facts deals with evidence for and background information regarding VARA. The reading explains moral rights and explains why the United States included moral rights into VARA, when they had never previously been incorporated into the United States Copyright Law. VARA infringements are then highlighted, and specific cases and what issues they deal with are specified. For instance, an example of a case dealing with each of the following is given: an artist’s hand painted banner; works for exhibition; photographs made as studies for paintings; sculpture park vs sculptures in a park; a 6,000-pound sculpture that was not visible to the public; an embroidered dragon that was on a fashion designers pant leg; models and technical drawings; and advertising and promotional materials. VARA is broken down into the right of attribution and integrity and then the reading covers the duration, transfer and waiver issues, and exceptions and exclusions of VARA. This reading is also useful because it highlights state protection of moral rights, and raises the question of whether VARA, a federal law, preempts state moral rights laws. A summary is also given of what is to be done about damages due to infringement, and discusses how it is difficult to create one remed,y because it is possible to violate the attribution or the integrity portion of VARA, which would need separate penalties. Elements of proof of infringement of VARA are enumerated to show when a violation has occurred; therefore, appropriate action can be taken. This is a very long reading (61 pages) and it goes further to explain interrogatories for an artist against people who may have violated VARA.
This reading provides useful background information, as well as implications of how to deal with possible VARA infringement. Because it provides example testimony and transcripts from cases, it shows how an actual VARA case could unfold, and the types of questions that should be asked. It is helpful to read transcripts to get an idea of how a case would be carried out, and what questions are asked to prove that infringement has or has not occurred. This is a very useful document to put VARA in its legal context.
This article highlights some of the ambiguities of VARA, such as leaving subjective and objective interpretations of harm open for debate. Because of the broad nature of the act, court cases such as Carter v. Helmsley-Spear, Inc, have expansive room for interpretation. The objective approach was taken in the case of Carter v. Helmsley-Spear, Inc. There have been subjective interpretations, like in Pavia v. 1120 Avenue of the Americas Associates. It is evident through legislation that Congress intended for VARA to have a narrow application, and to be used as a small step towards including moral rights in United States copyright law. Substantial modification of a visual work is compared to the concept of substantial similarity in traditional United States copyright law, which facilitates the objective approach to interpretation of VARA. The article also describes how if the modification to the work is considered insignificant (i.e. lighting a painting from below as opposed to above) then the artist cannot claim infringement of VARA. By comparing significant vs. insignificant modification juxtaposed against qualitative vs. quantitative modification, the scope of and debates regarding VARA are brought to the forefront. An interesting point is that when judging art, some argue that the judges do not have adequate training to deem modification as infringement.
This article is important to decipher the meaning of modification of a piece of artwork. The debate over how the act should be and is implemented highlights the ambiguities of VARA. Because VARA is the first time moral rights are worked into United States law, its scope is narrow so it can be a test to see how the expansion of protection beyond economic rights fairs. It is clear that debate exists, because of the possibility of subjective vs. objective interpretation; although Hawkins believes objective interpretation is much preferred. Once again, court cases are examined to show the way the act has been applied and interpreted; therefore, Congress can gauge whether federal copyright law in general should be expanded to include moral rights, as it does in other countries.