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Copyright Law & Moral Rights
Civil Law and Common Law approach
Fordham Law SchoolComparative IP & IT - IPGL-0230-001 Room 310
February 2010 / Prof. Pablo A. Palazzi
Moral
Rights
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+Rights under Law
Pecuniary rights vs. Moral rightsCivil law tradition: both are important, but Droit
Moral most unique feature
Common law: weak moral right or inexistentBorn from case law, not statute
Currently statutory rights in civil law tradition
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+How moral right was born?
France (first cases) 1828: case Widow Vergne v. Creditors of Mr. Vergne-
an unpublished manuscript is not property that couldbe seized anterior to the publication (there is aprivate interest and right that belongs exclusively tothe author)
1845: case Marquam Lehuby - editor does not havethe right to alter a work submitted for publication.
Berne Convention (1928 Rome Act)
Several statutes in civil and common law
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+New problem: the Internet
April 2006: the estate of Spanish painterJoan Miro objected to Google's copying ofMiro's style on its home page in anattempt to honor him on his birthday. Thefamily's representative indicated that thepurported tribute violated Miro'scopyright and moral rights.
Google denied any violation of Miro's
rights, but removed the Miro-like
elements from its logo.
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Great expansion of authorand heirs rights
Obstacle to uses of works? Critics
Internet
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International Sources
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+International Sources
Berne Convention : article 6 bisGeneva Universal Convention : no provisionWIPO Copyright Treaty 1996 : no provisionWIPO Performances and Phonograms Treaty
(WPPT): article 5 (moral right of performers)
TRIPS Agreement 1994: no provision, but seearticle 9.1, sentence 2.
EU Community Law : no provision
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+Moral Rights : International
Sources Berne Convention : article 6 bis Geneva Universal Convention : no provision :why ?
Minimalist approach of International Copyright Law
WIPO Treaties 1996 : no provision WIPO Performances and Phonograms Treaty: article 5 TRIPS Agreement 1994: no provision Community Law : no provision
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+Moral Rights : International
Sources Berne Convention : article 6 bis Geneva Universal Convention : no provision WIPO Treaties 1996 : no provision :why ? Different
purposes Internet / Software / Databases / DRM /
Information
WIPO Performances and Phonograms Treaty: article 5 TRIPS Agreement 1994: no provision Community Law : no provision
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+Moral Rights : International
SourcesBerne Convention : article 6 bisGeneva Universal Convention : no provisionWIPO Treaties 1996 : no provisionWIPO Performances and Phonograms Treaty:
article 5
TRIPS Agreement 1994: no provision :why ?Economic Organisation : Moral Right outside of itsscope
Community Law: no provision
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+Moral Rights : International
SourcesBerne Convention : article 6 bisGeneva Universal Convention : no provisionWIPO Treaties 1996 : no provisionWIPO Performances and Phonograms Treaty:
article 5
TRIPS Agreement 1994: no provisionCommunity Law : no provision
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+Article 6bis - Berne Convention
(1) Independently of the author's economic rights, and even afterthe transfer of the said rights, the author shall have the right toclaim authorship of the work and to object to any distortion,mutilation or other modification of, or other derogatory action inrelation to, the said work, which would be prejudicial to his honoror reputation.
(2) The rights granted to the author in accordance with thepreceding paragraph shall, after his death, be maintained, at least
until the expiry of the economic rights, and shall be exercisable bythe persons or institutions authorized by the legislation of thecountry where protection is claimed. However, those countries
whose legislation, at the moment of their ratification of or accessionto this Act, does not provide for the protection after the death of theauthor of all the rights set out in the preceding paragraph mayprovide that some of these rights may, after his death, cease to bemaintained.
(3) The means of redress for safeguarding the rights granted bythis Article shall be governed by the legislation of the country
where protection is claimed.
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+Moral Right : International Sources
1. To claim authorship; to object to certainmodifications and other derogatory actions;
2. After the author's death;
3. Means of redress
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Berne Convention: article 6 bis
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+Moral Right : International Sources
(1) Independently 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 other
derogatory action in relation to, the said work,
which would be prejudicial to his honor or
reputation.
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article 6 bis: Content
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+Moral Right : International Sources
(1) Independently of the author's economic rights,and even after the transfer of the said rights, theauthor shall have the right to claim authorship ofthe work (paternity right or right of attribution)
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article 6 bis: Content
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+Moral Right : International Sources
(1) Independently 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 andto object to any distortion,mutilation or other modification (integrity right)
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article 6 bis: Content
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+Moral Right : International Sources
Berne Convention: article 6 bis Paternity right Integrity right No right to divulge No right of withdraw or repent
Minimalist conception of Moral Rights as
compared to civil law tradition countries(France; Germany)
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+Moral Right : International Sources
(2) The rights granted to the author in accordance withthe preceding paragraph shall, after his death, be
maintained, at least until the expiry of the economic
rights, and shall be exercisable by the persons or
institutions authorized by the legislation of the country
where protection is claimed. However, those countries
whose legislation, at the moment of their ratification of
or accession to this Act, does not provide for the
protection after the death of the author of all the rights
set out in the preceding paragraph may provide thatsome of these rights may, after his death, cease to be
maintained
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Article 6 bis:Authorship /duration
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+Moral Right : International Sources
(2) The rights granted to the author in accordance withthe preceding paragraph shall, after his death, bemaintained, at least until the expiry of the economicrights, and shall be exercisable by the persons or
institutions authorized by the legislation of the countrywhere protection is claimed. However, those countrieswhose legislation, at the moment of their ratification ofor accession to this Act, does not provide for theprotection after the death of the author of all the rightsset out in the preceding paragraph may provide that
some of these rights may, after his death, cease to bemaintained
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Article 6 bis:Authorship /duration
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+Moral Right : International Sources
(2) The rights granted to the author in accordance withthe preceding paragraph shall, after his death, bemaintained, at least until the expiry of the economicrights, and shall be exercisable by the persons or
institutions authorized by the legislation of the countrywhere protection is claimed. However, those countrieswhose legislation, at the moment of their ratification ofor accession to this Act, does not provide for theprotection after the death of the author of all the rightsset out in the preceding paragraph may provide that
some of these rights may, after his death, cease to bemaintained
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Article 6 bis:Authorship /duration
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+Moral Right : International Sources
(3) The means of redress for safeguarding therights granted by this Article shall be governed by
the legislation of the country where protection is
claimed.
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Article 6 bis : conflict of Law: legislation ofthe country where protection is claimed
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+Moral Right : International Sources
Limited scope as it is possible to comply witharticle 6 bis without introducing express provisionswithin copyright law (e.g. United States?)
The TRIPS reference to the Berne Conventiondoes not extend to article 6 bis (exclusion)
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Scope and effectiveness of the article 6 bis
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+TRIPS Agreement 1994
Article 9 - Relation to the Berne Convention:
1. Members shall comply with Articles 1 through
21 of the Berne Convention (1971) and the
Appendix thereto. However, Membersshall not
have rights or obligations under this Agreement in
respect of the rights conferred under Article 6bis of
that Convention or of the rights derived therefrom.
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+Reasons to exclude moral rights
from TRIPS
Article 9.1 is a Bern-minus provision
Objective: to remove moral rights from TRIPS
However exception does not derogates fromrights and obligations under article 6 bis BC
But the WTO dispute settlement rules do not apply
or of the rights derived therefrom: to exclude
not only 6 bis but also 10(3) and 11 bis (2) BC
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+Reasons to exclude moral rights
Article 9.1 sentence 2 is a result of a US initiative. U.S. highlysceptical of moral rights
Worry about WTO potential dispute settlement proceeding:minimal amendment of the Copyright Act since US accession to theBerne Convention cast doubts about compliance with BC art 6 bis
US lobby + Hollywood film industry which feared that author moralrights may interfere with licenses that have already been acquired
Official US argument: the moral rights were non economic rightsand did therefore not belong to the trade-related aspects of IP
which are TRIPS sole topic
Similar clause in NAFTA Annex 1701.3 No. 2: This Agreementconfers no right and imposes no obligations on the US with respectto Art. 6 bis BC or rights derived from this article
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+Moral Right : International Sources
Article 5- Moral Rights of Performers
(1)Independently of a performers economic rights, and even after the transfer of thoserights, the performer shall, as regards his live aural performances or performancesfixed in phonograms, have the right to claim to be identified as the performer of hisperformances, except where omission is dictated by the manner of the use of theperformance, and to object to any distortion, mutilation or other modification of hisperformances that would be prejudicial to his reputation.
(2)The rights granted to a performer in accordance with paragraph (1) shall, after hisdeath, be maintained, at least until the expiry of the economic rights, and shall beexercisable by the persons or institutions authorized by the legislation of theContracting Party where protection is claimed. However, those Contracting Parties
whose legislation, at the moment of their ratification of or accession to this Treaty, doesnot provide for protection after the death of the performer of all rights set out in thepreceding paragraph may provide that some of these rights will, after his death, ceaseto be maintained.
(3) The means of redress for safeguarding the rights granted under this Article shall be
governed by the legislation of the Contracting Partywhere protection is claimed.
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WIPO Performances and Phonograms Treaty
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+Moral rightin the Civil Law tradition
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+Moral Right : Civil Law
Monist conception
Germany, Austria,
Hungaria,Czech
Republic.
Urheberpersnlich-keitsrecht
Same duration: End of
moral right at the
expiration of economic
rights
Urheberrecht as a
whole is not alienable:Same philosophy :
balance of interests
Dualist conception
France, Italy, Spain
Droit moral, diritto
morale, derecho
moralDifferent regimefrom economic
rights
Different philosophy
(author centered)
perpetual,inalienable
imprescriptible
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+Moral Right : Civil Law
Droit moral is inalienableNo unanimity: on duration,on scope,on possibility of waiving ones right
Ex : ghostwriter agreement - is not reallyenforceable?
Effect of waiver of the right to be named?
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+French IP Code
Article L121-1An author shall enjoy the right to respect for his
name, his authorship and his work.
This right shall attach to his person. It shall beperpetual, inalienable and imprescriptible. It may
be transmitted mortis causa to the heirs of the
author. Exercise may be conferred on another
person under the provisions of a will.
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+Nature
One View: Non-pecuniary nature: resemblerights of personality or individual civil rights.
Another view: Moral rights are not inherent in anauthor's individuality, they just relate to a work. E.g:
a legal entity may be granted moral rights.
It does not fit the personality right analysis.
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+Problems
Prof. Raynard MR should be regarded as a merederogation from the normal exploitation of a work,
through a potential limitation on prerogatives of
copyright assignees.
For a US view France's droit moral seems to hold anexcessive place within copyright law
Tends to undermine producers' economicexpectations and to harm both modern creationand the public interest
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+Moral Rights
right of paternity (orattribution);
right of integrity;Right of disclosure;
right to withdraw the work.
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+Right of Attribution
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+Right of Attribution
Right of paternity: allows an author to claimauthorship of his work and, therefore, to be
acknowledged as the author of the work
Is intended to enable the author to be identified asthe author of the work on copies or whenever the
work is communicated to the public.
In U.S. terms, it is the author's right to credit forauthorship.
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+Guille v. Colmant
Guille a painter agreed to deliver to Colmant, adealer, his entire future production for a period of
ten years at a rate of twenty paitings a month. No
duress in entering contract.Contract provided that the works furnished to the
dealer would be signed with a pseudonym and
that the painter would not sign his earliers works.
Dispute. Dealer sued artist for breach of contract.
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+Guille v. Colmant
Held: the dealer could not prohibit the artist fromusing his real name in connection with works he
created, despite the terms of the contract.
Guille v. Colmant (1967) Recueil Dalloz-Sirey D.S. Jur 284 . Gazette duPalais I. 17 (Cour dappel, Paris).
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+Right of Attribution
Publishing a work without designating its authorviolates the author's moral right of attribution.
Author's name should be mentioned on publicityfor the work.
Third parties who delete the author's name orsubstitute their own for that name commit an act
making them liable for damages.
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+Right of Attribution
Negative aspect of attributionIn the case of a work falsely attributed to an author,
the author alleging false attribution is permitted to
forbid the use of his name as a creator of the work.
Case of fake Borges poem in Argentina. Widow ofBorges initiated actions against publishing house.
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+Right of Attribution
Rodin caseFrench court holding that "attribution to Rodin, by
means of an usurpation of name, of a work he
actually did not make, undermines the sculptor'sright to respect for his name and harms the artistic
identity of his work."
CA, Paris, 13e ch., Mar. 23, 1992, R.I.D.A., 1993, 155, 181.
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+Barrault v. Citroen
Commissioned draftsman demanded, on the grounds ofhis paternity right, that his contracting car manufacturer
affix his name on the coachwork of each marketed
vehicle.
The judge rejected the claim, stating that "in the field ofindustrial designs, the artistic work has an accessory
character in comparison with the exploited product, so
that success is mostly relying on a financial effort of the
company that took an exploitation risk.
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+French IP Code
Article L121-1An author shall enjoy the right to respect for his
name, his authorship and his work.
This right shall attach to his person. It shall beperpetual, inalienable and imprescriptible. It may
be transmitted mortis causa to the heirs of the
author. Exercise may be conferred on another
person under the provisions of a will.
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+Smith v. Montoro
The court held that the removal of an actor's namefrom the film credits and accompanying
advertising material in connection with the film, as
well as the substitution of another name, violated
section 43(a) of the 1946 Lanham Act on
trademarks, as a false designation of origin of
goods or services.
Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981).
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+Right of Attribution
Clevenger v. Baker Voorhis & Co., New YorkCourt of Appeals granted former author and editor
of law books the right to prevent his former
publisher from using his name.
Plaintiff had terminated his position as editor andhad revoked his consent to have his name used as
editor of any later editions. Defendant publisher
indicated that Clevenger was the editor of a
subsequent edition filled with errors.
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Clevenger v. Baker Voorhis & Co
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+Right of Attribution
Lamothe v. Atl. Recording Corp., 847 F.2d 1403 (9thCir. 1988) : Addressing removal by a songwriter of
his coauthor's name on published music
Johnson v. Jones, 149 F.3d 494 (6th Cir. 1998)Substituting one architect's name for another's on
architectural plans.
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+Dastar Corp. v. Twentieth Century Fox
In 1948, Fox obtained the exclusiverights to create a television seriescalled Crusade in Europe, based onthe 1948 book, Crusade in Europe
written by Dwight D. Eisenhower and
published by Doubleday. The 26-episode series showed World War IIfilm footage from the US military andother sources, with a voicesoundtrack based on a narration ofthe book. In 1975, Doubledayrenewed the copyright on the book.Fox, however, did not renew thecopyright on the TV series, so theshow entered the public domain in1977.
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+Dastar Corp. v. Twentieth Century Fox
In 1988, Fox reacquired the television rights to the book,and licensed to other companies the right to purchased
Betacam videotapes of the original TV series, copied
the tapes, edited them to about half the original length,
created new packaging, and sold the TV series as WorldWar II Campaigns in Europe. The new videotapes and
advertising mentioned Dastar and its employees as the
producers, and did not mention the original Crusade in
Europe book, TV series, or producers.
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.
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+Dastar Corp. v. Twentieth Century Fox
Fox sued in 1998, claiming that Dastar hadinfringed the copyright to the Crusade in Europedistribute Crusade in Europe on video. Then in1995, Dastar book, and that, under the Lanham Act,
it had illegally done a "reverse passing off",passing off the work of others as its own work. Thedistrict court found for Fox and awarded it doublethe profits that Dastar had made. The Court ofAppeals reversed the copyright claim and sent it
back to the district court on remand, but upheldthe "reverse passing off"/Lanham Act ruling, andaffirmed the award of double the profits
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+Dastar Corp. v. Twentieth Century Fox
A former copyright holder could not bring a
Lanham Act claim for false designation of origin
against a subsequent distributor who labelled
itself the "producer" rather than the work's original
author, because "origin" under the Lanham Act
refers only to the origin of the physical goods
rather than the intangible ideas contained therein.
Ninth Circuit Court of Appeals reversed and
remanded.
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+Dastar case (2003)
Professor Jane Ginsburg expressed the view thatfrom now on, "in the United States neither the
copyright nor the trademark laws establish a right of
attribution generally applicable to all creators of all
types of works of authorship," and so the
compliance of American copyright law with Berne
might be challenged.
Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright
and Trademarks Law, 41 Hous. L. Rev. 263 (2004)
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+Academic criticism of Dastar
Austin, Graeme W., The Berne Convention as aCanon of Construction: Moral Rights After Dastar.
NYU Annual Survey of American Law, 2005.
Available at SSRN: http://ssrn.com/
abstract=707181
Ginsburg, Jane, The Author's Name as a Trademark:A Perverse Perspective on the Moral Right of
'Paternity'?, http://lsr.nellco.org/columbia_pllt/
0591/
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+The Right of Divulgation
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+The Right of Divulgation
The right of divulgation is the right of the author todecide when and how his work is to be disclosed
to the public, including the right not to disclose it.
In the course of its development, French copyrightlaw came to acknowledge that, when the moral
right of divulgation conflicted with economic
rights, the former would prevail over the latter
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+Whistler decision
The American painter Whistler,while living in Paris, had beencontractually commissioned bythe British Lord Eden to make aportrait of Lady Eden. Whistlernot only made the portrait, but
allowed it to be shown briefly tothe public in the Salon duChamp de Mars, and thenrefused to deliver it as he hadpromised, and had been paid, todo.
Whistler painted out LadyEdens head, painted in anotherand refused to deliver the work.
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+Whistler decision
The Cour de cassation held that''the contract by which a painterpromises to execute a paintingin return for a fixed priceconstitutes a special contract by
which the property [to the
embodiment of the work] passesto the commissioning party onlywhen the artist makes thepainting available to such partyand such party accepts it.'
Lord Eden was entitledrestitution of 100 guineas he hadpaid and damages for breach ofcontract but he could notcompel restoration of theportrait or its delivery.
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+French IP Code
Article L121-2The author alone shall have the right to divulge his
work. He shall determine the method of disclosure
and shall fix the conditions thereof ....
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+French IP Code
After his death, the right to disclose his posthumousworks shall be exercised during their lifetime by theexecutor or executors designated by the author. If thereare none, or after their death, and unless the author has
willed otherwise, this right shall be exercised in the
following order: by the descendants, by the spouseagainst whom there exists no final judgment ofseparation and who has not remarried, by the heirsother than descendants, who inherit all or part of theestate and by the universal legatees or donees of thetotality of the future assets.
This right may be exercised even after expiry of theexclusive right of exploitation set out in Article L123-1.
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+French IP Code
Article L121-3. In the event ofmanifest abuse inthe exercise or non-exercise of the right ofdisclosure by the deceased author'srepresentatives referred to in Article L121-2,
the first instance court may order anyappropriate measure. The same shall apply inthe event of a dispute between suchrepresentatives, if there is no known successorin title, no heir or no spouse entitled to inherit.
Such matters may be referred to the courts bythe Minister responsible for culture.
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+French IP Code
Article L121-6. If one of the authors refuses tocomplete his contribution to an audiovisual work
or is unable to complete such contribution due to
circumstances beyond his control, he shall not be
entitled to oppose use of that part of his
contribution already in existence for the purpose
of completing the work. He shall be deemed the
author of such contribution and shall enjoy the
rights deriving therefrom.
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+Right to withdraw the work
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+French IP Code
Article L121-4. Notwithstanding assignment of hisright of exploitation, the author shall enjoy a rightto reconsider or of withdrawal, even afterpublication of his work, with respect to the
assignee. However, he may only exercise that righton the condition that he indemnify the assigneebeforehand for any prejudice the reconsiderationor withdrawal may cause him. If the author decidesto have his work published after having exercisedhis right to reconsider or of withdrawal, he shall berequired to offer his rights of exploitation in thefirst instance to the assignee he originally choseand under the conditions originally determined.
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+The Right ofIntegrity of the Work
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+The Right of Integrity
Definition of Berne ConventionThis right starts by assuring that the integrity of the
author's work is maintained, but its scope is
somewhat broader....
The author may assert this right against others forviolations of which he is, to a large extent, thearbiter.
Third parties who suppress, supplement, alter orotherwise modify a work do so at their own risk.
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+The Right of Integrity
In many civil law tradition regimes the author ofthe work does not have to prove that such acts did
or might prejudice his honor or reputation to
obtain relief against them, nor need he justify his
reasons for refusing to tolerate such acts.
What about parody? fair uses?The author alone judges whether, and how, it might
be fitting to alter the work and, accordingly, in whatform it should reach the public.
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+The Right of Integrity
Not an absolute rightCase in which Salvador Dali asserted his right to
respect to oppose additions which a theatrical
production had made to costumes he haddesigned.
Court allowed changes as long as ''the additions donot result in an inaccurate portrayal of the work.
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+The Right of Integrity
French law seeks to preclude the public, thirdparties, or the courts from substituting their
choices or value judgments for the author's
concerning whether modifications of his work
might be fitting.
E.g. a decision made this clear when enjoining adirector of Waiting for Godot from exercising his
free choice to cast men or women, since the
playwright Samuel Beckett had clearly expressedhis intention not to have women play in this piece.
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+Millet case
Son of painter Milletclaimed that two
publications distorted and
falsified his father work
moral rights and should beprohibited.
Reproduction of Milletpopular painting The
Angelus.
Cort refused destruction ofexisting copies but held...
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+Millet case
the reproductions brightened the light in the
painting, made objects look real and vulgar, added a
bonet on one persons head and a scarf around a
womans neck, and changed an evening scene to
one suffused by a glaring noonday sun....
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+Leger case
Leger v. Reunion des Theatres Lyriques Nationaux,6 R.I.D.A. 146.
Fernand Leger designed setting for the OperaBolivar
New production without one scene of the opera(Crossing of the Andes)
Producer has no right to make a cut without theartist permission and without informing the public
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+
Rousseau v. Galeries Lafayette (1974)Galeries L., a Paris department store, used paitings
of artist in its windows decorations
grandfather of the artist sued invoking moralrighsts
repdroductions employed different colours andaltered images affecting right of integrity
No mention of name of artist
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+De Chirico v. Ente Autonomo La Bienale de
Venezia
1950 Venice Biennale drewtogether works by the Italianartist Giorgio De Chirico frompublic and private collectorsfor a retrospective exhibition.
None of the paintingsbelonged to the artist.
Artist filed action to prohibitthe exhibition: the showmisrepresented him by
overincluding earlier worksand underincluding the laterones.
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+Trial Court
the one man show at the Bienale is very important forthe reputation of the artist
it is viewed as a critical and representative exhibition ofthe artist work and it may strongly affect the estimationof the artist.
artist has a legally protectable interest in beingaccurately and fairly represented in it.
consent of the artist???? but Court of Appeals revoked the decision
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+Court of Appeals
narrow and literal reading of the statuteItalian Copyright act provided no right to the artist
to control the exhibition of works he no longer
owned
trial court: censorship?what is the limit of the right of integrity?
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+Shostakovich case
The Iron Curtain Film used S. music that was in the publicdomain.
FRANCEJudgment of Jan. 13, 1953 (Soc. Le. Chant de Monde v. Soc. Fox
Europe et Soc. Fox Americaine Twentieth Century), 1953 G.P.
191.
USAShostakovich v. Twentieth Century-Fox Film Corp., 80 N.Y.S.2d 575,
578 (Sup. Ct. 1948).Shostakovich v. Twentieth Century-Fox FilmCorp., 87 N.Y.S. 2d 430 (1st Dep't 1949).
Result: injunction denied! Moral right not recognized in
common law
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+Right of Integrity
The right to respect goes beyond remedies foralterations of a work itself.
The right may allow the author to obtain reliefagainst various practices that might present hiswork in misleading, disparaging, or derogatory
circumstances, fashions, or contexts.
It does not protect artist honor or reputations (tortlaw)
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+Tintin Case
The heirs of the author of the comic-book seriesTintin, famous for a boy and his scrappy little dog
as well as other picturesque characters initiated
lawsuit to protect Tintin.
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+Tintin case
First case: plaintiff obtained an injunction againstperformances of a play placing these characters in
situations so different from their adventures in the
series as to ''corrupt the ethics'' of the work as a
whole.
Second case: parody of Tintin in Switzerland.Court said there is no parody. The obscene
character of the work affects the reputation of
Herg and mutilated the work.
Cour dappel de Bruxelles, june 8 1978, Casterman et Georges Remi v. Callico
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+Buffet v. Fersing
French artist Bernard Buffet was invited todecorate a Refrigerator to be auctioned in Paris for
the benefit of charity. He did so by painting a
composition consisting of six panels: 3 on the front
one on the top and one on each side of the
refrigerator. The work of art was auctioned. Six
months later the catalog for another auction
included a Still Life with Fruits by Bernard Buffet
and described as painting on metal.
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+Buffet v. Fersing
Artist brought an action against the owner-
consignor to prevent the separate sale of the panel
and the court so ordered.
Tribunal also awarded symbolic damages of onefranc, the right to publish it decision in three art
periodicals of his choice at defendant cost and
expense. It refused artist request that the six panels
be awarded to him as damages.
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+Buffet v. Fersing
On appeal the court revised the judgment toprohibit evenprivate piece-by-piece disposition of
the work (not only public dismemberment).
Protection of moral right of the artist warrants thelimitation of defendant right of property.
Buffet v. Fersing (1962) recueil Dalloz 570, 571 (Cour dappel, Paris).
Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1035
(1976).
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+Moral Right : Civil Law
Film Colorization
Dualist conception
France
Droit moral
International Publicorder
Asphalt Jungle /
colorization ofamerican film
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+Moral Right : Civil Law
Film Colorization
Turner Entertainment Co. v. Huston, CA Versailles,civ. ch., December 19, 1994, translated in Ent. L.Rep., Mar. 1995.
Turner Entertainment Company (TEC) acquiredthe rights to "Asphalt Jungle," a 1950 John Hustonmovie, when it merged with Metro Goldwyn Meyer(MGM). Once TEC so acquired the movie, itproceeded to add color to Huston's black andwhite movie; and entered into an agreement withthe French television channel, La Cinq, tobroadcast the modern version of the movie.
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Film Colorization
Huston's heirs and the screenwriter, moved toprevent the broadcast of the altered work.
In ruling in favor of the Plaintiffs, the French Courtheld that the "integrity of a literary or art workcannot be affected in France, regardless of the state
in whose territory the said work was made public for
the first time.
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+Moral Right : Civil Law
Film Colorization
The Court noted that the Section 6 of the Law of11th March 1957, is the textual support for the right
of integrity.
It provides that "the author enjoys the right torespect for his name, his status, his work--this right
attaches to his person and may be transmitted to
the author's heirs after death.
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Film Colorization
colorization is not an adaptation or an originalwork in an of itself both in expression andcomposition, rather it is a modification of theoriginal work.
black and white movie was made at the timewhen color was available to the artist, andtherefore, the motion picture in question wasfilmed in black and white (and not in color)
following a deliberate aesthetic choicecolorization was a violation of the moral rights.
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+French IP Code
Article L121-5. An audiovisual work shall be deemed completed whenthe final version has been established by common accord between thedirector or, possibly, the joint authors, on the one hand, and theproducer, on the other.
Destruction of the master copy of such version shall be prohibited.Any change made to that version by adding, deleting or modifying any
element thereof shall require the agreement of the persons referred toin the first paragraph above.
Any transfer of an audiovisual work to another kind of medium with aview to a different mode of exploitation shall require prior consultationwith the director.
The authors' own rights, as defined in Article L121-1, may be exercisedby those authors only in respect of the completed audiovisual work.
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+Plon v. Hugo (Heir of Victor Hugo)
Article 10 ECHR
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+Right of Integrity - Spain
Spanish architect, SantiagoCalatrava, was commissioned bythe Bilbao municipal authorities to design and oversee theconstruction of a bridge over the river Nervin, which runsthrough the middle of the city. The bridge was part of Bilbaosurban development project to unite the two sides of the river.Construction was completed in May 1997, and the work wasreceived by the city Council to their apparent satisfaction. Thebridge, known by its Basque name Zubi Zuri (white bridge)became one of the citys landmark attractions.
Some years later, two companies began work on theconstruction and promotion of new riverside complex close tothe Zubi Zuri.
In order to connect the new development to the other side ofthe river via the Zubi Zuri, some changes were needed...
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+Right of Integrity - Spain
An extended walkway supported by two concretepillars was attached to Santiago Calatravas bridge
in 2006 by removing a section of the balustrade.
Mr. Calatrava claimed infringement of his moral
right to the integrity of his work, citing the fact thatthe extension had been added without his
authorization, and nor had his permission been
sought for the removal of part of the balustrade.
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+Right of Integrity - Spain
He demanded that the bridge be restored to itsoriginal state and the walkway demolished, plus
250,000 euros for moral damages and publication
of the judgment in the national and specialist
press. Alternatively, if the bridge could not berestored, he requested a compensation payment of
3 million.
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+Right of Integrity
- Spain
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+Right of Integrity - Spain
The judge agreed that Santiago Calatravas bridge had sufferedan alteration: a section of balustrade had been removed, and awalkway had been attached which was built in a completelydifferent style, using a support structure which broke with thedesign of the plaintiffs bridge. The grayish color also contrastedmarkedly with the white bridge. He concluded that the additionto the Zubi Zuri had without question altered its character.
The Spanish Law makes a clear distinction between the rights ofthe owner of the material work (Bilbao City) and the rights of itsauthor (Mr. Calatrava).
The fact that the city council is the legal owner of thearchitectural work does not entitle it to make alterations to thework which damage its authors moral rights. Nor does the fact of
the evident practical utility of the work i.e. enabling thecitizens of Bilbao to cross the river prevent the application andvalidity of the authors moral rights.
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+Right of Integrity - Spain
In the final analysis, however, the judge determined that thelegitimate (private) interests of Mr. Calatrava with respect tothe integrity of his work must be weighed, not only in termsof his case against the city council, but also with respect tothe (public) interest of the citizens. For the people of Bilbao,the addition of the walkway to the Zubi Zuri enabled them toaccess the new Isozaki Atea complex on one level, withoutthe difficulty and inconvenience of walking up and downseveral flights of stairs.
In the conflict between these private and public interests, itwas the moral rights of the architect which lost. The Courtrejected Mr. Calatravas demand and ruled that, whilealteration of the work had certainly taken place, the right tothe integrity of the work was not breached because the
author is obliged to tolerate this in consideration of thepublic service that his work provides.
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On appeal the Court found an infringement ofmoral rights of Calatrava and awarded the plaintiff
Euro 30,000 due to the alteration of the bridge.
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+Right of integrity - India
Amar Nath Sehgal vs Union of India [2005(30) PTC 253].
Facts: in 1959, the Ministry of Works of theUnion Government of India commissioned atalented sculptor, Amar Nath Sehgal, to designa mural. The work was to adorn the wallsaround a central arch of the Vigyan Bhawan, avenue for important government functions inthe capital city. The mural was completed in1962. In its final shape, it measured a mammoth40 feet high and 140 feet long. For nearly 20years the mural attracted dignitaries and artconnoisseurs from all over the world. It becamea landmark in the cultural life of the capital.Then the Vigyan Bhawan buildings were
renovated. In the process, the mural was rippedoff the walls and the remnants put into store.
Amar Nath Sehgal vs Union of India
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+Right of integrity - India
the plaintiff (Mr. Sehgal) had assigned his copyright tothe defendant (the government) in an agreement dated
31st October 1960;
the defendant had purchased all rights from theplaintiff, and was consequently free to do as it pleased
with the mural;
the mural had already been damaged in a fire in theVigyan Bhawan;
Defenses:
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+Right of integrity - India
according to the terms of the 1960 agreement, any grievanceshould be referred to an arbitrator appointed by thedefendant.
Justice Pradeep Nandrajog of the Delhi High Court ruled that:"All rights of the mural shall henceforth vest with Mr. Sehgal."The court ordered the return of the remains of the mural tothe sculptor, and also slapped damages of Rs.500,000 (someUS$ 12,000) on the defendant. Ultimately, the matter wasamicably resolved. After the hard fought and emotionalbattle, Mr. Sehgal, grateful for his victory, waived the claim ofdamages against the government in exchange for the returnof the mural.
SOURCE: Binny Kalra, Copyright in the Courts: How Moral Rights Won the Battle of the Mural,
WIPO Magazine, April 2007, http://www.wipo.int/wipo_magazine/en/2007/02/article_0001.html
Defenses:
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