Authors, Attribution, and Integrity: Examining Moral Rights in the

united states copyright office

authors, attribution, and integrity:

examining moral rights in the

united states

A REPORT Of ThE REgisTER Of cOPyRighTs APRiL 2019

authors, attribution, and integrity:

examining moral rights in the

united states

A REPORT Of ThE REgisTER Of cOPyRighTs APRiL 2019

united states copyright office

U.S. Copyright Office Authors, Attribution, and Integrity

ACKNOWLEDGEMENTS

It is my pleasure to deliver this report focusing on the personal rights of individual

authors and artists, who have often been excluded in broader conversations about

topic by many people within the U.S. Copyright Office, and in particular, in the Office of

Policy and International Affairs. Senior Counsels for Policy and International Affairs

Kimberley Isbell and Chris Weston served as principal authors. Without their efforts in

managing the complex research and writing needed to tackle this difficult subject, and

their keen insight in identifying policy paths forward, this Report would not have been

possible.

I am also grateful to Katie Alvarez, Brad A. Greenberg, Emily Lanza, and Aurelia J.

Schultz, Counsels for Policy and International Affairs, for their significant research and

drafting contributions. Deputy Director of Policy and International Affairs Maria Strong

shepherded the public symposium on moral rights and played a leadership role in

completing this project. The entire team worked diligently and creatively to address the

numerous domestic and international issues raised.

General Counsel and Associate Register of Copyrights Regan A. Smith contributed

valuable insights and advice, as did Deputy General Counsel Kevin Amer. Barbara A.

Ringer Copyright Honors Program Fellow Sarah Gersten provided drafting assistance;

Law Clerks Mitisha Chheda, Caitlin Costello, Tiffany Hightower, Ryan Kwock, and Zhao

Zhao delivered research support; and Policy and International Affairs Assistant Ashleigh

Mayo provided production support.

Finally, I would like to thank the many individuals and organizations who participated

in our symposium and provided comments in this docket.

Karyn A. Temple

Director, U.S. Copyright Office

U.S. Copyright Office Authors, Attribution, and Integrity

EXECUTIVE SUMMARY ........................................................................................................................ 3

I. INTRODUCTION AND STUDY HISTORY................................................................................... 6

II. DEVELOPMENT OF MORAL RIGHTS IN THE UNITED STATES AND ABROAD ................ 9

A. International Development of the Concept of Moral Rights............................................... 10

B. Variability in the Protection of Moral Rights Internationally ............................................. 13

C. U.S. Accession to the Berne Convention .............................................................................. 18

1. Efforts to Join the Berne Convention .............................................................................. 19

2. The Moral Rights Patchwork .......................................................................................... 24

D. Post-Berne Developments: New WIPO Treaties ................................................................. 25

III. GUIDING PRINCIPLES FOR REVIEW OF MORAL RIGHTS REGIME ................................... 27

A. Respect for Foundational Principles of U.S. Law ................................................................ 28

1. Moral Rights and the First Amendment ........................................................................ 28

2. Moral Rights and Fair Use............................................................................................... 30

3. Moral Rights and Copyright Term Limits ..................................................................... 33

B. Importance of Attribution and Integrity to Creators ........................................................... 34

C. Recognize and Respect Diversity Among Creative Industries and Types of Works ........ 36

IV. DISCUSSION AND FINDINGS .................................................................................................... 37

A. Federal Law ............................................................................................................................ 40

1. Misappropriation and Unfair Competition: The Lanham Act .................................... 40

a) Pre-BCIA Case Law ................................................................................................... 40

b) The Supreme Court’s decision in Dastar .................................................................. 42

c) Post-Dastar Case Law ................................................................................................ 44

d) The Implication of Dastar for the Moral Rights Patchwork .................................... 54

e) Potential Lanham Act Changes ................................................................................ 58

2. Visual Artists Rights Act (“VARA”) ............................................................................... 59

a) Limitations of VARA ................................................................................................. 60

(1) VARA Applies Only to “Visual” Works ............................................................ 61

(2) Not All Visual Art Works are Covered by VARA ............................................ 63

(a) Works Made for Hire................................................................................... 64

(b) Commercial Art ........................................................................................... 66

(d) Non-copyrightable Art ................................................................................ 70

(e) Preparatory Works ...................................................................................... 71

(f) Site-specific Art ............................................................................................ 72

b) Actionable Conduct: VARA Rights of Attribution & Integrity .............................. 74

(1) Right of Attribution ............................................................................................. 74

U.S. Copyright Office Authors, Attribution, and Integrity

(2) Right of Integrity ................................................................................................. 76

(a) Prejudicial to Artist’s Reputation ............................................................... 76

(b) Definition of ”Work of Recognized Stature” ............................................. 77

c) Duration ..................................................................................................................... 81

d) Waiver ........................................................................................................................ 82

3. Section 1202 of Title 17 .................................................................................................... 83

a) Section 1202 Protections vis-à-vis the Right of Attribution ..................................... 86

b) Applicability to Analog as Well as Digital CMI ...................................................... 87

c) Challenges Applying Section 1202 to Moral Rights Protections ............................ 90

(1) No Right to Be Credited ...................................................................................... 90

(2) Difficult to Prove Knowledge Requirement ...................................................... 93

(3) Difficulties for Non-Rightsholder Authors ....................................................... 99

4. Other Title 17 Provisions ............................................................................................... 100

a) Derivative Works — Section 106(2) ........................................................................ 100

b) Compulsory Licenses for Nondramatic Musical Works — Section 115(a)(2) ..... 103

c) Termination of Transfers — Section 203 ................................................................ 105

B. State Law ............................................................................................................................... 107

1. Defamation ..................................................................................................................... 107

2. Privacy and Publicity ..................................................................................................... 110

a) Post-BCIA Case Law ............................................................................................... 112

b) Considering a Federal Right of Publicity ............................................................... 117

3. Misrepresentation and Unfair Competition................................................................. 119

4. State Moral Rights Laws ................................................................................................ 120

5. Contracts and Licenses .................................................................................................. 127

a) The Role of Contracts in Moral Rights ................................................................... 129

b) Concerns about Protecting Moral Rights Through Contract................................ 133

(1) Privity ................................................................................................................. 133

(2) Alienability ........................................................................................................ 134

(3) Concerns Unique to Works Made for Hire ...................................................... 137

6. Other Forms of Private Ordering.................................................................................. 138

a) Plagiarism ................................................................................................................. 138

b) Voluntary Initiatives ................................................................................................ 140

U.S. Copyright Office Authors, Attribution, and Integrity

EXECUTIVE SUMMARY

Moral rights is not a topic that has generated significant policy focus within the United

States until the past several years. Some may suggest this is a result of the United States’ lack of

strong protections in this area. Thus, the current Report represents the first comprehensive

review of the United States’ moral rights regime in three decades.

It provides a much-needed

and comprehensive overview of how the rights of attribution (the right to be credited as the

author of one’s work) and of integrity (the right to prevent prejudicial distortions of one’s work)

are protected in the United States through a patchwork of federal and state laws, as well as

industry customs and other forms of private ordering. It also suggests some potential changes to

the patchwork that could, if implemented, enhance moral rights protections for all types of

authors.

The landscape of moral rights in the United States is complex. At the time the United

States formally agreed to recognize the rights of attribution and integrity with ratification of the

Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”) in 1988,

Congress relied on a combination of federal and state law protections to do so, electing to forego

adoption of a generally-applicable moral rights provision in federal copyright law. While the

interests underlying moral rights have been legally protected, in varying degrees, for decades in

the United States, the contours and substance of the patchwork of protections for these interests

have shifted over time—enlarged by federal and state legislation, including certain narrowly

tailored additions to title 17 adopted by Congress in the 1990s,

and contracted by judicial

decisions limiting the availability of unfair competition and misappropriation laws, particularly

lower courts applying the Supreme Court’s 2003 decision in Dastar Corp. v. Twentieth Century Fox

Film Corp. (“Dastar”).

At the same time, a rich landscape of contractual agreements and other

private ordering has risen up to further supplement the protections for authors’ attribution and

integrity interests available in the United States; these practices are well-established and vary

substantially from industry to industry. Adding to the complexity, the U.S. moral rights

The last government review occurred prior to the United States acceding to the Berne Convention for the Protection of

Literary and Artistic Works (“Berne Convention”) in 1989. The need for a review of U.S. moral rights protections was

first suggested by House Judiciary Committee Chairman Bob Goodlatte and Representative Jerrold Nadler in 2014, and

formally requested by House Judiciary Committee Ranking Member John Conyers in 2015. See Moral Rights,

Te rmi nati on Rights, Resale Royalty, and Copyright Term: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the

Internet of the H. Comm. on the Judiciary, 113th Cong. 4 (2014) (“2014 Moral Rights Hearing”) (statements of Rep. Bob

Goodlatte, Chairman, H. Comm. on the Judiciary; Rep. Jerrold Nadler, Ranking Member, H. Subcomm. on Courts,

Intellectual Prop., & the Internet); The Register’s Perspective on Copyright Review: Hearing Before the H. Comm. on the

Judiciary, 114th Cong. 49 (2015) (“Register’s Perspective Hearing“) (statement of Rep. John Conyers, Jr., Ranking Member,

H. Comm. on the Judiciary).

Expansion of the protections for the rights of attribution and integrity include the passage of the Visual Artists Rights

Act (“VARA”) of 1990, the addition of section 1202 to title 17, and the passage of additional state statutes in the areas of

the right of publicity and moral rights for authors of visual art works.

Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).

U.S. Copyright Office Authors, Attribution, and Integrity

patchwork as it exists today also coexists and intersects with important limitations on the

economic rights of authors as well as important First Amendment values.

In analyzing the U.S. moral rights framework, the Copyright Office embraced three

general principles to guide its analysis. First, any potential changes to the U.S. moral rights

framework must be harmonized with other critical elements of U.S. law, particularly the First

Amendment, fair use, and respect for the constitutional requirement of limited copyright terms.

Second, the vital importance to authors of adequately protecting their attribution and integrity

interests cannot be overstated. Third, a review of U.S. moral rights protections must recognize

that there is broad diversity among creative industries and categories of works, and that,

accordingly, effective moral rights protections are not one-size-fits-all.

Based on all of these considerations, the Copyright Office concludes that many diverse

aspects of the current moral rights patchwork—including copyright law’s derivative work right,

state moral rights statutes, and contract law—are generally working well and should not be

changed. Further, the Office concludes that there is no need for the creation of a blanket moral

rights statute at this time. However, there are aspects of the U.S. moral rights patchwork that

could be improved to the benefit of individual authors and the copyright system as a whole.

Accordingly, the Office concludes that Congress may wish to consider narrow legislation in

certain very specific cases:

• Lanham Act. While the Supreme Court’s Dastar decision narrowed the ability of

authors to bring moral rights type claims under section 43(a) of the Lanham Act, there

are still several avenues left for successful Lanham Act claims. Specifically, the Office

believes that the text of the Lanham Act and the reasoning of the Dastar decision leave

open claims for mis- or non-attribution of creative works in the following cases: (i)

claims for passing off or material distortions of a work; (ii) false advertising claims

under section 43(a)(1)(B),

and (iii) claims for repackaging of expressive works in a

way that misattributes them. However, Congress may want to consider adopting an

amendment to section 43(a) of the Lanham Act that would expand the unfair

competition protections to include false representations regarding authorship of

expressive works. Any such amendment should be narrowly crafted to protect only

against consumer confusion or mistake as to authorship or attribution of such works,

and not to provide copyright protection or afford the author any additional control

over permissible uses of the work. A narrowly focused amendment would mitigate

Section 43(a)(1) applies to “false designation[s] of origin, false or misleading description[s] of fact, or false or

misleading representation[s] of fact.” Subsection (a)(1)(a) allows claims for such statements when they are “likely to

cause confusion. . . as to the origin, sponsorship, or approval of his or her goods,” while subsection (a)(1)(B) provides a

claim in connection with such statements when they are used “in commercial advertising or promotion[ to]

misrepresent[] the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods.” 15

U.S.C. § 1125(a).

U.S. Copyright Office Authors, Attribution, and Integrity

the Dastar court’s policy concerns about overlapping IP doctrines generally, and

limitations on public domain uses specifically.

• Visual Artists Rights Act. The Office has identified three relatively minor legislative

improvements to the Visual Artists Rights Act (“VARA”), codified in title 17 as section

106A, for consideration by Congress. VARA provides limited moral rights of

attribution and integrity to authors of qualifying “works of visual art.” Specifically, it

protects a qualifying artist’s right to claim or disclaim authorship in a work, and

provides a limited right to prevent the distortion, mutilation, or modification of a

work, as well as preventing the destruction of a “work of recognized stature.” The

first proposed change would clarify that VARA’s exclusion for “commercial art” is

limited to artworks both created pursuant to a contract and intended for commercial

use. The second proposed change would add language clarifying how courts should

interpret the “recognized stature” requirement, requiring courts to consult a broad

range of sources. The third proposed change would provide that no joint author could

waive another joint author’s moral rights under VARA without the written consent of

each affected author. These changes, taken together, would improve significantly the

usefulness of VARA to protect artists’ attribution and integrity interests―addressing

some of the limitations that have hampered successful VARA claims without

expanding VARA’s scope beyond the sorts of works that Congress sought to protect.

• 17 U.S.C. § 1202. Congress may want to consider adding a new cause of action as

section 1202A to title 17, which would offer a creator the ability to recover civil

damages upon proof that a defendant knowingly removed or altered copyright

management information (“CMI”) with the intent to conceal an author’s attribution

information. Such a dual intent standard would, in a manner similar to the existing

section 1202, protect against liability for innocent or good faith removal of CMI, while

giving creators a new tool to prevent deliberate efforts to conceal their authorship of a

work. This would address the difficulty in proving intent to commit infringement,

while narrowly focusing on issues of authors’ attribution rights.

• Right of Publicity. Congress may also wish to consider adoption of a federal right of

publicity law as a means to reduce the uncertainty and ambiguity created by the

diversity of state right of publicity laws. A federal right of publicity law, rather than

preempting state laws, could serve as a floor for minimum protections for an

individual’s name, signature, image, and voice against commercial exploitation during

their lifetime. Any such law, if adopted, should include an exception for First

Amendment-protected activities and may require significantly more government

analysis since this was not the sole focus of the current review.

The Copyright Office believes that the U.S. moral rights patchwork continues to provide

important protections, despite acknowledging the value of targeted improvement in some areas.

Title 17 and other federal and state laws, including unfair competition and misappropriation

doctrines, combined with a robust private ordering landscape, provide an author with a

U.S. Copyright Office Authors, Attribution, and Integrity

patchwork of means by which to protect and enforce their interests in being credited as the

author of their work and to preserve the integrity of that work. Nonetheless, this patchwork has

been narrowly interpreted over the years in ways that could undermine the important rights of

individual authors and artists. Should Congress wish to strengthen—and/or streamline—the U.S.

moral rights framework, this Report provides a roadmap for doing so.

I. INTRODUCTION AND STUDY HISTORY

Taken from the French phrase droit moral, the term “moral rights” generally refers to

certain non-economic rights that are considered personal to an author.

Central to the idea of

moral rights is the idea that a creative work, such as a song or book, actually expresses the

personality of the author.

Society has long recognized the importance of such a bond between a

creative work and its author: as far back as the early 1500s, courts in France recognized that only

the author has a right to publish their work.

Over the course of the last two centuries, countries

have increasingly codified this close connection between the author and their work, first through

judicial doctrines and limited statutory protections for certain aspects of moral rights, such as a

right of first publication, and later through formalized statutory moral rights schemes.

While countries have come to recognize a variety of different moral rights, the two most

commonly recognized moral rights are the right of an author to be credited as the author of their

work (the right of attribution),

and the right of an author to prevent prejudicial distortions of

their work (the right of integrity), both of which were codified at the international level in the

See 1 SAM RICKETSON & JANE C. GINSBURG, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS: THE BERNE

CONVENTION AND BEYOND ¶ 10.02, at 586–87 (2d ed. 2006) (“RICKETSON & GINSBURG”). However, while moral rights are

typically considered non-economic, study commenters pointed out that the right of attribution in fact has economic

importance for an author as well as a reputational importance. See Session 4: The Importance of Moral Rights to Authors,

in Symposium Transcript, Authors, Attribution, and Integrity: Examining Moral Rights in the United States, 8 GEO. MASON J.

INT’L COM. L. 87, 91 (2016) (“Session 4, Symposium Transcript”) (remarks of David Lowery, songwriter/recording artist)

(noting the importance of proper attribution for building a fan base and achieving ancillary licensing deals).

As used in this Report, the term “author” includes all human creators of copyright-protected works, including visual

artists and performers.

See MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT 18–19 (1993) (“ROSE, AUTHORS AND OWNERS”)

(discussing decisions by the Parlement of Paris (acting as a court of first instance) prohibiting booksellers from

engaging in the unauthorized printing and selling of certain works, ultimately granting the authors of those works the

exclusive right to publish the works at issue).

See infra Section II.A.

Attribution can include both positive and negative rights, i.e., the author’s right to be identified as the author of their

work as well as the right to not be identified as the author of works they did not author. See WORLD INTELLECTUAL

PROPERTY ORGANIZATION, GUIDE TO THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS (PARIS

ACT, 1971) 41 (1978) (“GUIDE TO THE BERNE CONVENTION”), available at https://www.wipo.int/edocs/pubdocs/en/

19 COLUM.-VLA J.L. & ARTS 199, 219 (1995).

U.S. Copyright Office Authors, Attribution, and Integrity

1928 Rome revision of the Berne Convention.

It was not until 1989, however, that the United

States became subject to an obligation to provide moral rights protections for authors by joining

the Berne Convention.

At that time, Congress determined that the United States provided

protection for the rights of attribution and integrity through an existing patchwork of laws.

This

patchwork included federal laws such as the Lanham Act and certain provisions of the Copyright

Act, as well as state laws relating to privacy and publicity, contracts, fraud and misrepresentation,

unfair competition, and defamation.

The exact contours of this patchwork of protections for

moral rights in the United States has changed over the ensuing three decades, with Congress

adding two additional elements to the patchwork: in 1990, Congress passed VARA, which

guarantees to authors of “works of visual art” the right to claim or disclaim authorship in a work

and limited rights to prevent the distortion, mutilation, or modification of the work;

and in 1998

Congress added section 1202 to title 17, which prohibits both providing false copyright

management information (“CMI”) and removing or altering CMI in certain circumstances.

Along with the post-Berne accession changes wrought by VARA and the advent of section

1202, significant changes in technology and business practices have altered how rights of

attribution and integrity are experienced by authors in the United States.

Most notably, the

growth of the internet as the primary locus for buying, selling, and licensing works of authorship

has meant that original works in digital form have become more accessible to more people. On

the one hand, this has meant that the attribution and integrity of works have been more

susceptible to mishandling and manipulation. For example, the metadata containing attribution

and other information for creative works is very simple to remove (or “strip”) or replace with

Berne Convention for the Protection of Literary and Artist Works art. 6bis(1), Sept. 9, 1886, as revised June 2, 1928, 123

L.N.T.S. 233, 248, 250 (“Rome Text”) (“Indépendamment des droits patrimoniaux d'auteur, et même après la cession

desdits droits, l'auteur conserve le droit de revendiquer la paternité de l'oeuvre, ainsi que le droit de s'opposer à toute

déformation, mutilation ou autre modification de ladite oeuvre, qui serait préjudiciable à son honneur ou à sa

réputation.”). English did not become an official language for the Berne Convention until the 1967 Stockholm Text. For

an unofficial English translation of the Rome Text, see id. at 249, 251 (“Independently of the author’s copyright, and

even after the transfer of the said copyright, the author shall have the right to claim authorship of the work, as well as

to object to any distortion, mutilation or other modification of the said work which would be prejudicial to his honour

or reputation.”).

See Berne Convention Implementation Act (‘‘BCIA’’) of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (codified in scattered

sections of 17 U.S.C.).

See H.R. REP. NO. 100-609, at 37–38 (1988); S. REP. NO. 100-352, at 9–10 (1988).

See id.

Visual Artists Rights Act (“VARA”) of 1990, Pub. L. No. 101-650, 104 Stat. 5128, 5128–29 (codified at 17 U.S.C. § 106A).

Digital Millennium Copyright Act (“DMCA”), Pub. L. No. 105-304, 122 Stat. 2860, 2872–74 (1998) (codified as

amended at 17 U.S.C. § 1202).

See Study on the Moral Rights of Attribution and Integrity: Notice of Inquiry, 82 Fed. Reg. 7870, 7874 (Jan. 23, 2017)

(“Moral Rights NOI”).

U.S. Copyright Office Authors, Attribution, and Integrity

erroneous information. A work stripped of proper identifying information then can be

disseminated widely to the detriment of both the author’s reputation and ability to profit from

the work.

Similarly, the increasingly accessible video editing technology behind “deepfake”

software can not only fundamentally alter the content of an author’s work, but can also lead to

social and moral harm for the artists and the subject of the video through malicious use.

On the

other hand, digital technologies such as fingerprinting and visual recognition software that allow

photographers to identify and track metadata related to their works on the internet have enabled

authors to combat some of these threats to their attribution and integrity interests.

Whether

considered as a useful tool or a threat to protection of integrity and attribution interests, there is

no question that technology has transformed the moral rights landscape in the United States.

Acknowledging this transformed landscape of moral rights protections in the current era,

Congress held a hearing on July 15, 2014, on the topic of moral rights protections in the United

States as part of its broader review of U.S. copyright law. At the hearing, both the Chairman of

the House Judiciary Committee and the Ranking Member of the Committee’s Subcommittee on

Courts, Intellectual Property, and the Internet expressed interest in knowing more about how

existing U.S. law, including provisions found in title 17 of the U.S. Code and other federal and

state laws, protects the moral rights of attribution and integrity, and whether any additional

protection is advisable in this area.

At a subsequent hearing in 2015, responding to a suggestion

from then-Register of Copyrights Maria Pallante, the Ranking Member of the House Judiciary

Committee requested that the Copyright Office conduct a moral rights study.

See, e.g., Session 4, Symposium Transcript, 8 GEO. MASON J. INT’L COM. L. at 90–91 (remarks of David Lowery,

songwriter/recording artist) (commenting on the negative effects of having a song of his misattributed for several years

to Tom Petty on online music sites); Coalition of Visual Artists, Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 25 (Mar. 28, 2017) (“CVA Initial Comments”) (“The Internet displays images

and allows the copying and theft of those images by a simple right click of a mouse without permission from the

creator. In the process, sometimes the metadata is stripped from the image. The loss of attribution causes the visual

creator to lose control and income from his/her work and lose the ability to license those images.”).

See, e.g., I Never Said That! High-Tech Deception of ‘Deepfake’ Videos, CBS NEWS (July 2, 2018),

https://www.cbsnews.com/news/i-never-said-that-high-tech-deception-of-deepfake-videos/; George Dvorsky, Deepfake

Videos are Getting Impossibly Good, GIZMODO (June 12, 2018, 1:05 PM), https://gizmodo.com/deepfake-videos-are-getting-

impossibly-good-1826759848.

See Session 4, Symposium Transcript, 8 GEO. MASON J. INT’L COM. L. at 93 (remarks of Yoko Miyashita, Getty Images)

(discussing the digital fingerprinting technology used by Getty Images).

See 2014 Moral Rights Hearing at 4 (statements of Rep. Bob Goodlatte, Chairman, H. Comm. on the Judiciary; Rep.

Jerrold Nadler, Ranking Member, H. Subcomm. on Courts, Intellectual Prop., & the Internet).

The Department of Commerce’s Internet Policy Task Force has also been touching on these issues in its exploration of

the digital marketplace for copyrighted works, particularly with respect to how technology can aid in connecting

attribution to works and facilitating creator control of downstream uses. The most recent public meeting of the task

U.S. Copyright Office Authors, Attribution, and Integrity

As part of the preparation for this Study, the Copyright Office co-hosted a daylong

symposium on moral rights in April 2016 in order to hear views about current issues on this

subject from authors, scholars, and other stakeholders. On January 23, 2017, the Copyright Office

published a Notice of Inquiry in the Federal Register announcing the study and soliciting public

input.

The Copyright Office received 46 initial comments and 16 reply comments from a broad

range of interested stakeholders in response to the Notice.

This Report evaluates the current state of protections for the rights of attribution and

integrity in the United States, assessing the myriad changes to the moral rights landscape that

have resulted from significant legal, technological, and business developments over the past

thirty years. The Study’s record reveals a great diversity of opinions among different

stakeholders concerning the strength of existing, and the potential need for additional, moral

rights protections. Based on the Office’s review of the record, as well as additional research

conducted by the Office, we do not recommend the introduction of a blanket moral rights statute

at this time. Instead, we conclude that many aspects of the U.S. moral rights landscape remain

useful for authors and performers. We also acknowledge the desirability of certain targeted

changes to strengthen protections for individual creators.

Thus, should Congress wish to take

further steps to update the moral rights regime, this Report offers possible pathways for

improvements in the areas of the Visual Artists Rights Act (“VARA”), section 1202 of title 17, the

Lanham Act, and the right of publicity.

II. DEVELOPMENT OF MORAL RIGHTS IN THE UNITED STATES AND ABROAD

To lay the foundation for this Report’s discussion of current U.S. moral rights issues, it is

necessary to sketch the development of the legal concept of moral rights internationally, as well

as its evolution in the United States.

force was held on March 28, 2019. Further information about the task force’s work on this area can be found at

https://www.ntia.doc.gov/category/copyright.

See Moral Rights NOI.

A transcript of the symposium and links to all written comments, as well as other background material on this Study,

are available at https://www.copyright.gov/policy/moralrights/. A list of symposium participants is attached to this

Report as Appendix A, the text of the Notice of Inquiry is attached as Appendix B, and a list of commenters in response

to the Notice is attached as Appendix C.

In addition to this Report, the Office recently issued a letter to Congress discussing responses to challenges faced by

authors of visual works. See Letter from Karyn A. Temple, Acting Register of Copyrights & Dir., U.S. Copyright Office,

to Lindsey Graham, Chairman, Comm. on the Judiciary, U.S. Senate, and Dianne Feinstein, Ranking Member, Comm.

on the Judiciary, U.S. Senate (Jan. 18, 2019), available at https://www.copyright.gov/policy/visualworks/senate-letter.pdf;

Letter from Karyn A. Temple, Acting Register of Copyrights & Dir., U.S. Copyright Office, to Jerrold Nadler, Chairman,

Comm. on the Judiciary, U.S. House of Representatives, and Doug Collins, Ranking Member, Comm. on the Judiciary,

U.S. House of Representatives (Jan. 18, 2019), available at https://www.copyright.gov/policy/visualworks/house-

letter.pdf.

U.S. Copyright Office Authors, Attribution, and Integrity

A. International Development of the Concept of Moral Rights

The rights of attribution and integrity have long histories; the concepts embodied therein

have been recognized in some form in many countries of the world for centuries. In the cultures

of Nigeria, oral literature was put into written form with attribution to the original author.

Similarly, some scholars see precursors of both the rights of attribution and integrity in social

norms dating back to Roman times.

Formal statutory codification of moral rights, however, is a

more recent development.

Some of the earliest legal recognitions for something analogous to modern moral rights

date back to the Renaissance, when courts and legislatures began to recognize that authors had a

reputation-based interest in controlling at least the initial public dissemination of their works. In

France, often considered the birthplace of modern moral rights, a court recognized that only the

author has a right to publish his work as early as 1504.

Other countries began recognizing a

similar right of first publication in the decades that followed. Such a right was recognized in a

public edict by the Venetian Council of Ten in 1545, while the English Parliament issued a decree

in 1642 requiring publishing houses to receive author consent before publishing works.

In fact,

in many countries recognition for a first publication right predated the legal recognition of

copyrights, which began to be codified throughout Europe during the eighteenth century.

At the same time countries were codifying economic copyright protections for authors, the

rights of attribution and integrity began to receive explicit, but limited, statutory legal protection.

The French National Assembly codified in national law a proto-right of attribution and integrity

See Nkem Itanyi & Madunatu Chikaodili Nwamaka, An Appraisal of the Operational Problems Hindering the Protection of

Performer’s Rights as Copyright in Nigeria, 14 U.S.-CHINA L. REV. 608, 610 (2017).

See Katharina de la Durantaye, The Origins of the Protection of Literary Authorship in Ancient Rome, 25 B.U. INT’L L.J. 37,

68–76 (2007).

ROSE, AUTHORS AND OWNERS 18–19.

ROSE, AUTHORS AND OWNERS 20–22.

See, e.g., An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or

Purchasers of Copies, during the Time therein mentioned (“Statute of Anne”), 8 Ann., c. 19 (1710) (Gr. Brit.); Décret du

19 julliet 1793 de la Convention Nationale relatif aux droits de propriété des Auteurs d'écrits en tout genre, des

Compositeurs de musique, des Peintres et des Dessinateurs [Decree of July 19, 1793 of the National Convention

regarding the property right of authors to writings of all kinds, of composers of music, of painters and illustrators] (Fr.).

The impetus for such “copyright” statutes grew out of the philosophy of John Locke, with his idea of ownership

stemming from the mixing of man’s labor with anything man removes from nature, along with the European

Renaissance’s romanticized notion of the author. See ROSE, AUTHORS AND OWNERS 5, 18; see also JOHN LOCKE, TWO

TREATISES OF GOVERNMENT 287–88 (Peter Laslett ed., Cambridge Univ. Press 1988) (1690).

U.S. Copyright Office Authors, Attribution, and Integrity

for playwrights in 1791.

Similarly, early forms of protection for the rights of attribution and

integrity were codified in the German Laws of 1870 and 1876.

Although copyright protections were harmonized at the international level in 1886

through the adoption of the Berne Convention, over forty years elapsed before the first

international codification of the emerging rights of attribution and integrity. In 1928, the Berne

Convention was updated to add a requirement for recognition of the rights of attribution and

integrity as article 6bis, which read:

. . . the author shall have the right to claim authorship of the work, as well as the

right to object to any distortion, mutilation or other modification of the said work

which would be prejudicial to his honor or reputation.

At the time of the 1928 revisions to the Berne Convention, recognition of these moral

rights had been statutorily codified in a few, but not all, signatory countries.

While Japan added

a statutory moral rights provision as early as 1899,

many other countries did not adopt such

statutory protections until years later. Canada added a statutory protection for the rights of

attribution and integrity to its copyright law in 1931.

Later adopters of statutory moral rights

See Susan P. Liemer, On the Origins of Le Droit Moral: How Non-Economic Rights Came to be Protected in French IP Law,

19 J. INTELL. PROP. L. 65, 108–09 (2011).

See 1 RICKETSON & GINSBURG ¶ 10.03, at 588.

Berne Convention for the Protection of Literary and Artist Works art 6bis(1), Sept. 9, 1886, as revised June 2, 1928, 123

L.N.T.S. 233 (“Rome Text”). Relatedly, but in a separate section, in 1948 WIPO members amended the Berne

Convention to include a requirement for attributing the source and name of the author of a quotation. See Berne

Convention for the Protection of Literary and Artistic Works art. 10(3), Sept. 9, 1886, as revised June 26, 1948, 331

U.N.T.S. 217 (“Brussels Text”). Additional international recognition of moral rights was provided in the 1948 Universal

Declaration of Human Rights, which states, “[e]veryone has the right to the protection of the moral and material

interests resulting from any scientific, literary or artistic production of which he is the author.” G.A. Res. 217 (III) A,

Art. 27(2), at 76, Universal Declaration of Human Rights (Dec. 10, 1948). However, the Declaration is “not a treaty or

international agreement . . . impos[ing] legal obligations.” Sosa v. Alvarez-Machain, 542 U.S. 692, 734-35 (2004) (internal

quotation marks omitted).

By the mid-1920s, Bulgaria, Czechoslovakia, Finland, Germany, Italy, Japan, Poland, Romania, and Switzerland had

all adopted statutory protections for the right of attribution, the right of integrity, or both. See 1 RICKETSON & GINSBURG

¶¶ 10.03–10.06, at 587–90.

Article 18 of the Copyright Act, Law No. 39 of 1899, art. 18, protected mukeijo no kenri, rights belonging “exclusively to

the author and constitut[ing] a part of his personality right.” Teruo Doi, Parody, Fair Use, and Moral Rights from the

Japanese Perspective, 24 J. INT’L ASS’N FOR PROTECTION INDUS. PROP. JAPAN 16, 24 (1999) (internal citation omitted).

8 (UK). One scholar suggests that this is because of Canada’s somewhat unique mix of common and civil law

traditions. See Gerald Dworkin, The Moral Right of the Author: Moral Rights and the Common Law Countries, 19 COLUM.-

VLA J.L. & ARTS 229, 232 (1995); see also PAUL GOLDSTEIN & BERNT HUGENHOLTZ, INTERNATIONAL COPYRIGHT: PRINCIPLES,

U.S. Copyright Office Authors, Attribution, and Integrity

included two original 1886 signatories to the Berne Convention: the United Kingdom in 1988

and Switzerland in 1992.

Even Australia and New Zealand, which both signed the Rome Text in

1928 with its new article 6bis,

did not add explicit moral rights protections to their copyright

statutes until 2000

and 1994,

respectively. Similarly, while Singapore has codified certain

moral rights in its copyright laws, it was not until this year that it proposed the adoption of a

statutory right of attribution after a multi-year public consultation.

It bears repeating that the

relatively recent trend towards statutory codification of moral rights does not mean that these

LAW, AND PRACTICE 346 (2d ed. 2010) (“GOLDSTEIN & HUGENHOLTZ”) Emir Aly Crowne Mohammed, Moral Rights and

Mortal Rights in Canada, 4 J. INTELL. PROP. & PRAC. 261, 261 (2009).

See Dworkin, 19 COLUM.-VLA J.L. & ARTS at 238.

See Jacques de Werra, Switzerland, in MORAL RIGHTS 579 (Gillian Davies & Kevin Garnett eds., 2010) (“Werra in MORAL

RIGHTS”).

See CONFÉRENCE DE ROME, Acte Adopté par la Conférence Convention de Berne pour la Protection des Œuvrés Littéraires et

Artistiques du 9 Septembre 1886, Revisée a Berlin le 13 Novembre 1908 et a Rome le 2 Juin 1928 at 332–33 (signature of W.

Harrison Moore on behalf of Australia and S. G. Raymond on behalf of New Zealand), available at

http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=278725.

See MINISTRY OF LAW & INTELLECTUAL PROP. OFFICE OF SING., SINGAPORE COPYRIGHT REVIEW REPORT 19–20 (Jan. 17,

2019), available at https://www.mlaw.gov.sg/content/dam/minlaw/corp/News/Press%20Release/Singapore%20

pdf.

U.S. Copyright Office Authors, Attribution, and Integrity

jurisdictions did not previously recognize or protect moral rights,

just that such protection

tended to exist either in criminal statutes,

case law,

or by analogy in economic copyright law.

B. Variability in the Protection of Moral Rights Internationally

As the foregoing indicates, there is a significant amount of variation in how moral rights

are recognized around the world, as well as the manner in which they are protected. For

example, in addition to the rights of attribution and integrity, other countries have recognized a

number of additional moral rights, some of which are counterparts to economic rights, including:

• the right of withdrawal, or droit de repentir, which allows authors to retract works from

public circulation that they feel no longer represent them or their views;

See ELIZABETH ADENEY, THE MORAL RIGHTS OF AUTHORS AND PERFORMERS: AN INTERNATIONAL AND COMPARATIVE

ANALYSIS 89–93 (2006) (discussing Romanian, Italian, Polish, Czechoslovakian, Portuguese, Swiss, and Finnish laws that

provided protection of moral interests and led to the development of Article 6bis in the Rome Text).

Moral rights were protected in Canada by provisions in the criminal code and by common law principles. See DAVID

VAVER, INTELLECTUAL PROPERTY LAW: COPYRIGHT, PATENTS, TRADE-MARKS 88–89 (1997). In Liberia, plagiarizing another’s

work was a crime. See 2 LIBERIAN CODE OF LAWS OF 1956, TITLES 12–26, at 921 tit. 25, ch. 2, § 35 (Cornell Univ. Press)

(1957).

As mentioned earlier, court cases in France recognized some protection for the rights of attribution and integrity in

the nineteenth century. See Liemer, 19 J. INTELL. PROP. L. at 111–22; STINA TEILMANN-LOCK, BRITISH AND FRENCH

Copyrighted Things (and French Moral Rights), 9 IND. INT’L & COMP. L. REV. 423, 426 (1999). Australia used a smattering of

common law rights and different provisions of their Copyright Act, including a prohibition against false attribution, a

derivative works right, a tort of passing off, the tort of defamation, and contract law. See COPYRIGHT LAW REVIEW

COMM., REPORT ON MORAL RIGHTS 6–10 (1988); COPYRIGHT LAW REVIEW COMM., REPORT OF THE COMMITTEE APPOINTED BY

THE ATTORNEY-GENERAL OF THE COMMONWEALTH TO CONSIDER WHAT ALTERATIONS ARE DESIRABLE IN THE COPYRIGHT LAW OF

THE COMMONWEALTH 90 (1959).

The United Kingdom’s pre-existing publication and adaptation rights were seen as protecting the rights of disclosure

and integrity, respectively. See Dworkin, 19 COLUM.-VLA J.L. & ARTS at232–33.

Such a right is recognized in, for example, Belgium, France, Germany, India, Italy, Spain, and the countries of the

Organisation Africaine de la Propriété Intellectuelle (“OAPI”). See GOLDSTEIN & HUGENHOLTZ at 354–55; Dietz, 19

COLUM.-VLA J.L. & ARTS at 203 n.23, 205; Arathi Ashok, Moral Rights—TRIPS and Beyond: The Indian Slant, 59 J.

951, 981–82 (2010). This right has been compared to the U.S. Copyright Act’s sections 203 and 304(c) termination rights.

See GOLDSTEIN & HUGENHOLTZ at 355 (“The U.S. Copyright Act’s termination of transfer provisions roughly approximate

the civil law right of recall by giving authors and their statutory successors a nonwaivable right to terminate copyright

transfers after a specified period.”).

U.S. Copyright Office Authors, Attribution, and Integrity

• the right of divulgation, through which an author can control the public disclosure of

their work, and which supports the economic right of first publication;

• the right of the author to have access to the original copy of a work in order to

“exercise his author’s rights”;

• the right to prevent others from associating one’s work with an undesirable “product,

service, cause or institution”;

• the right to pseudonymity;

and

• the right of an author to compel the completion of a commissioned work of art.

Additionally, not all countries protect the rights of attribution and integrity in the same

manner, and many countries have laws protecting discrete aspects of those rights using different

terminology.

As many scholars have noted, civil law and common law countries historically

took different approaches to the protection of authors’ moral rights: while many civil law

countries conceived of moral rights as separate and distinct from an author’s economic rights,

common law countries tended to conceive of moral rights as part and parcel of the general

Such a right is recognized in, for example, Egypt, France, Germany, India, and the OAPI countries. See GOLDSTEIN &

HUGENHOLTZ at 353; Ashok, 59 J. COPYRIGHT SOC’Y U.S.A. at 708; Heba A. Raslan, Shari’a and the Protection of Intellectual

Property―the Example of Egypt, 47 IDEA 497, 542 (2007); Platt, 57 J. COPYRIGHT SOC’Y U.S.A. at 977, 981–82.

Such a right is recognized in, for example, Switzerland. See Werra in MORAL RIGHTS at 591.

Such a right is recognized in, for example, Canada. See Lesley Ellen Harris, Moral Rights in Canadian Copyright Law, 34

LAWNOW 14, 15 (2010).

Such a right is recognized in, for example, Indonesia and the United Kingdom. See Undang-Undang Republik

Indonesia Nomor 28 Tahun 2014 tentang Hak Cipta [Law of the Republic of Indonesia Number 28 Year 2014 Copyright]

art. 5(1)(b); Copyright, Designs and Patents Act 1988, c. 48, § 77(8) (UK); see also GUIDE TO THE BERNE CONVENTION 41.

Such a right is recognized in, for example, France. See Vera Zlatarski, Note, “Moral” Rights and Other Moral Interests:

Public Art Law in France, Russia, and the United States, 23 COLUM.-VLA J.L. & ARTS 201, 205–06 (1999) (referring to

recognition of the right by French courts as an extension of moral rights).

See, e.g., Yong Wan, Moral Rights of Authors in China, 58 J. COPYRIGHT SOC’Y U.S.A. 455, 475 (2011) (discussing the right

of alteration in China, which gives the author the right to alter or authorize others to alter a work); Zhiwen Liang,

Between Freedom of Commerce and Protection of Moral Rights: The Chinese Experience and a Comparative Analysis, 57 J.

disclosure and revision/alteration rights); Josabeth A. Antonio & Jannette V. Sevilla, The Creator’s Moral Rights Under

Philippine Law, 62 PHIL. L.J. 16, 22 (1987) (discussing the right of alteration in the Philippines as separate from the right of

integrity or the right to control derivative works); Leanne Wiseman, Moral Rights in the Australian Academy: Where to

Now?, 28 U. NEW SOUTH WALES L.J. 98, 108 (2005) (discussing the Australian right to prevent false association, in

addition to the right of attribution).

U.S. Copyright Office Authors, Attribution, and Integrity

Although the Berne Convention largely adopted

the civil law approach, conceptualizing moral rights as separate from economic rights,

member

states have wide discretion in how they chose to implement the moral rights protections of Article

6bis.

For this reason, the contours of the rights of attribution and integrity look quite different,

depending upon the country.

One area in which there is significant variance among countries is in how they approach

the concepts of waivability and alienability of moral rights. While moral rights are often

described as “inalienable,” “nonwaivable,” or in other terms that express the inherent

relationship between author and work, moral rights are in fact often waivable and sometimes also

alienable under many countries’ moral rights schemes.

In some countries like Canada,

waivability is explicitly spelled out in the statute.

Elsewhere, it is inferred by the ability of

authors to authorize certain uses of their works, such as in Nigeria, Germany, France, China, and

See, e.g., Robert C. Bird & Lucille M. Ponte, Protecting Moral Rights in the United States and the United Kingdom:

Challenges and Opportunities Under the U.K.’s New Performances Regulations, 24 B.U. INT‘L L.J. 213, 213–14 (2006). But see

A. G. Matveev, Models of Copyrights System, 8 WORLD ACAD. SCI., ENGINEERING & TECH. INT’L J L. & POL. SCI. 2393 (2014);

Emilian Ciongaru, The Monistic and the Dualitstic Theory in European Law, 1 ACTA UNIVERSITATIS GEORGE BACOVIA.

JURIDICA 212 (2012); Özge Akun Mengenli, Does it Make a Difference to Follow Monism or Dualism?, 3 ANKARA B. REV. 85

(July 2010).

See Bird & Ponte, 24 B.U. INT’L L.J. at 214.

1 RICKETSON & GINSBURG ¶ 17.81, at 1149.

See, e.g., Cyrill P. Rigamonti, Article, Deconstructing Moral Rights, 47 HARV. INT’L L.J. 353, 380 (2006) (theorizing that

there are seven decisional rules core to any moral rights regime and that these may be rationalized differently in

different regimes).

See, e.g., GOLDSTEIN & HUGENHOLTZ at 355–56 (noting that “[a]though there is a popular tendency to view moral rights

as absolute, legislation in only a few countries even approaches this extreme,” as moral rights in most countries last the

same duration as an author’s economic rights, may be subject to waiver (even if not alienable), and are also subject to

exemptions); Dietz, 19 COLUM.-VLA J.L. & ARTS at 221 (1995), (discussing that “a concept of absolute inalienability and

of exclusion of waiver is not compatible with the laws of even the most fundamental moral rights countries”);

Rigamonti, 47 HARV. INT’L L.J. at 380 (“[T]he element of inalienability, although absolutely central to Continental moral

rights consciousness, boils down to little more than a handful of rather narrow limitations on the content of copyright

contracts.”).

U.S. Copyright Office Authors, Attribution, and Integrity

Switzerland.

This ability to waive moral rights is generally tempered by limits designed to

protect authors from unwittingly or unwillingly waiving their rights.

Another area of variation in international approaches to moral rights has to do with how

the country’s laws treat situations where a work is “authored” by a corporation or has many

“authors” that all contribute a small piece to a larger whole.

In some countries that have

adopted copyright ownership rules similar to the work-for-hire doctrine in the United States,

corporations are allowed to hold and assert moral rights in such works. For example, South

Korea, Japan, and China all designate employers as the default legal author of works created by

employees, including for some moral rights purposes, although they allow the parties to contract

See, e.g., BANKOLE SODIPO, COPYRIGHT LAW: PRINCIPLE, PRACTICE & PROCEDURE 159 (2d ed. 2017) (“SODIPO”)

(“Notwithstanding the inalienable nature of moral rights under Nigerian law, it follows that where the owner of a

moral right being aware of his right signs an agreement or does an unequivocal act affirming that he will not enforce

his right, he will be estopped from enforcing his moral right.”); Berne Convention Implementation Act of 1987: Hearings on

H.R. 1623 Before the Subcomm. on Courts, Civil Liberties, & the Admin. of Justice of the H. Comm. on the Judiciary, 100th Cong.

92 (1987–88) (“1987 BCIA Hearings”) (statement of Dorothy Schrader, General Counsel, U.S. Copyright Office) (“[I]n

Germany it is common to transfer the moral right by contract.”); GOLDSTEIN & HUGENHOLTZ at 356 (“For example, while

moral rights are in civil law deemed unwaivable and nontransferable, it is generally accepted that a license granted to

adapt a work implies a degree of freedom to the adapter.”); 1987 BCIA Hearings at 327 (written statement of Kenneth W.

Dam, Vice President, Law and External Affairs, International Business Machines) (“French courts tend to enforce

contracts permitting reasonable alterations of an author’s work”); Liang, 57 J. COPYRIGHT SOC’Y U.S.A. at 124–26

(pointing out that “[a]lthough the ability to waive moral rights under Chinese copyright law is not clear, it can be

inferred from statutes and also is recognized by judicial opinions”); Werra in MORAL RIGHTS at 595–97 (noting that the

waivability of moral rights in Switzerland often involves analysis of copyright, civil, and contract interpretation).

See, e.g., SODIPO at 155–61 (explaining that Nigeria’s law requires any waiver of moral rights to be unequivocal and in

writing); Werra in MORAL RIGHTS at 585 (explaining that Swiss law prohibits blanket waivers).

In the United States, many of these types of works are subject to the work-made-for-hire doctrine, which resolves the

issue of multiple authors by substituting a legal fiction of a single author—the employer. See generally Catherine L. Fisk,

Authors at Work: The Origins of the Work-for-Hire Doctrine, 15 YALE J.L. & HUMAN. 1 (2003) (discussing work made for hire

practices developing early in cartography, then theater, publishing, and collaborative art works; and outlining the

rationale behind the introduction of a statutory work-made-for-hire doctrine in the 1909 Copyright Act).

U.S. Copyright Office Authors, Attribution, and Integrity

around this default.

Indian courts have also recognized moral rights for corporations.

contrast, under both Swiss and French law, moral rights can attach only to natural authors and

not corporate entities; employees may maintain or waive their rights, but employing companies

cannot hold them.

Several countries, including France and Israel, require that moral rights

remain with the natural author even when the law or a contract transfers economic rights away.

Countries have also adopted different approaches regarding how to address potential conflicts

that may arise resulting from the grant of moral rights to different contributors. For example,

Guatemalan authors contributing to newspapers do not have control of their contributions when

combined in a newspaper, but they do have rights in their works when those works stand alone.

See Copyright Act, Act No. 432, Jan. 28, 1957, amended by Act No. 14634, Mar. 21, 2017, arts. 9–10 (S. Korea);

Chosakuken Hō [Copyright Act], Law No. 48 of 1970, amended by Law No. 35 of 2014, arts. 15, 17 (Japan); Copyright

Law of the People’s Republic of China (promulgated by Order of the President of the People’s Republic of China, Feb.

26, 2010, effective Apr. 1, 2010) No. 26, art. 16, available at http://en.ncac.gov.cn/copyright/contents/10365/329083.shtml;

see also Liang, 57 J. COPYRIGHT SOC’Y U.S.A. at 118–21 (noting that while the right of attribution remains with the natural

author in China, employers maintain the right of integrity and may set limits on the creator’s attribution rights). The

Chinese work-made-for-hire situation is particularly interesting given the otherwise complete inalienability of moral

rights under Chinese law. Id. at 111–12 (“Moral rights under the Chinese Copyright Act . . . cannot be transferred to

third parties, including the heirs of an author.”).

See Sholay Media & Entm’t Private Ltd. v. Parag Sanghavi, Delhi HC, Aug. 24, 2015, CS (OS) 1892/2006, 20 (India)

(issuing a permanent injunction in favor of plaintiff film corporation that included an injunction “from infringing the

moral rights of the plaintiffs, and from distorting, mutilating, modifying or doing any other act that is prejudicial to the

honour and reputation of the work as well as to the plaintiffs and their work”).

See Werra in MORAL RIGHTS at 581 (noting that under Swiss copyright law, an author, defined as the physical person

who created the work, is the beneficiary of moral rights; meaning corporate entities “can never become legal

beneficiaries of moral rights (even if they may benefit from waivers of moral rights obtained from relevant authors”);

Marie-Andrée Weiss, Corporations Have No Moral Rights over Works in France, Even if They Commissioned It, 1709 BLOG

(Nov. 29, 2016), http://the1709blog.blogspot.fr/2016/11/corporations-have-no-moral-rights-over.html (citing Cour de

cassation [Cass.] [supreme court for judicial matters] 1e civ., Nov. 16, 2016, No. 15-22723 (Fr.)) (“[N]either the existence

of a contract of employment nor ownership of the material support of the work are likely to confer on the corporation

employing the author the enjoyment of that [moral] right.”).

See Marie-Andrée Weiss, Corporations Have No Moral Rights over Works in France, Even if They Commissioned It, 1709

BLOG (Nov. 29, 2016), http://the1709blog.blogspot.fr/2016/11/corporations-have-no-moral-rights-over.html; Ruth

Levush, Israel: Photographer’s Moral Right over a State-Copyrighted Photograph Recognized, LIBRARY OF CONGRESS GLOBAL

LEGAL MONITOR (Aug. 10, 2015), http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205404557_text (discussing a

2015 Israeli judicial decision confirming that, pursuant to Israeli copyright law, a state photographer retained the moral

rights in his photograph even though the state was the owner of the copyright).

Decreto Cong. No. 33-98, June 21, 1998, Ley de Derecho de Autor y Derechos Conexos [Law on Copyright and

Related Rights] art. 42bis, LA GACETA OFICIAL, May 21, 1998, amended by Decreto Cong. No. 11-2006, May 29, 2006,

Reformas Legales para la Implementación del Tratado de Libre Comercio República Dominicana-Centroamérica-

Estados Unidos de América [Legal Reforms for the Implementation of the Dominican Republic-Central America-United

States of America Free Trade Agreement] LA GACETA OFICIAL, May 29, 2006 (Guat.).

U.S. Copyright Office Authors, Attribution, and Integrity

The question of moral rights protection for multi-author works has been particularly acute

in the area of audiovisual works. Some countries have adopted special rules for moral rights in

these works, attempting to balance the interests of the producer, the director, individual

performers, and the authors of incorporated works such as musical scores. For example, while

China recognizes motion pictures as collaborative works with several individual authors, the

various authors are only granted the right of authorship while all other copyrights belong to the

producer.

While Guatemala grants moral rights to the producer (who is also holder of the

economic rights), this right includes mandatory attribution for the director, the script author, the

author of any underlying work, and the authors of the musical compositions in the audiovisual

work.

In Nigeria, which also grants moral rights to the producer, the law is designed to

encourage performers and others involved in films to execute contracts with the producer in

order to preserve any of their rights.

Performers in audiovisual works in France are considered

employees, and thus their rights of attribution and integrity are governed not only by the moral

rights regime, but also by employment law regulations and collective bargaining agreements.

Germany, although moral rights attach to both filmmakers and performers, a rightsholder may

only prohibit gross distortions of their work and their interests must be balanced with the

legitimate interests of the other film creators and the producer.

C. U.S. Accession to the Berne Convention

The United States’ accession to the Berne Convention was the culmination of many

decades of work. Almost as soon as the Berne Convention came into force, Berne member

See Copyright Law of the People’s Republic of China (promulgated by Order of the President of the People’s Republic

of China, Feb. 26, 2010, effective Apr. 1, 2010) No. 26, art. 15, available at http://en.ncac.gov.cn/copyright/contents/10365/

329083.shtml; see also Liang, 57 J. COPYRIGHT SOC’Y U.S.A. at 121–22.

See Decreto Cong. No. 33-98, June 21, 1998, Ley de Derecho de Autor y Derechos Conexos [Law on Copyright and

Related Rights] arts. 27 & 28, LA GACETA OFICIAL, May 21, 1998, amended by Decreto Cong. No. 11-2006, May 29, 2006,

Reformas Legales para la Implementación del Tratado de Libre Comercio República Dominicana-Centroamérica-

Estados Unidos de América [Legal Reforms for the Implementation of the Dominican Republic-Central America-United

States of America Free Trade Agreement] LA GACETA OFICIAL, May 29, 2006 (Guat.).

See Itanyi & Nwamaka, 14 U.S.-CHINA L. REV. at 627–28 (referring to section 9(4) of the Nigerian copyright law).

See Marjut Salokannel, Study on Audiovisual Performers’ Contracts and Remuneration Practices in France and Germany,

WIPO DOC. AVP/IM/03/3B, at 3–4, 21 (Mar. 31, 2003). French law regulates the relationship between authors’ rights,

including directors and producers, and related rights, such as the rights of performers. Because related rights cannot

prejudice authors’ rights under French law, performers’ cannot usurp control from film authors, thus addressing

directors’ concerns with maintain creative control of the end product. Id. at 4.

See Dietz, 19 COLUM.-VLA J.L. & ARTS at 223 (citing article 93 of the German copyright act); see also GOLDSTEIN &

HUGENHOLTZ at 357 (pointing out how civil law countries, such as France and Germany, accommodate moral rights in

the motion picture realm).

U.S. Copyright Office Authors, Attribution, and Integrity

countries were urging the United States to join.

The United States had been attending the

conferences related to the Berne Convention since the second conference discussing creation of an

international copyright union in 1885.

The United States continued to participate as an observer

at subsequent conferences of the Berne Union Members, including the 1908 Berlin Conference

where the original convention was revised.

But while U.S. interest in joining the Berne

Convention was reflected in two major bills introduced in the 1930s, the United States did not

accede to the Berne Convention until 1988.

1. Efforts to Join the Berne Convention

During the 1930s, two major pieces of legislation were proposed to implement the Rome

Text, and enable the United States to accede to the Berne Convention. Both were unsuccessful.

The first bill, introduced by Senator Bronson M. Cutting in 1933, included brief language

explicitly protecting attribution and integrity rights, without any caveats.

Several groups

opposed joining the Berne Convention if it required an explicit recognition of moral rights—

including motion-picture producers and distributors, periodical publishers, and radio

broadcasters.

The motion picture industry in particular objected to incorporating the right of

See Tabl e Talk, LITERARY WORLD, Sept. 27, 1895, reprinted in 52 LITERARY WORLD 220, 222 (James Clarke & Co. JULY–Dec.

1895) (“It would be a great gain to British authors if the United States Government would announce its adherence to the

‘Berne Convention’[.]”); Hall Caine on Copyright, LITERARY WORLD, Nov. 15, 1895, reprinted in 52 LITERARY WORLD, 395,

395 (James Clarke & Co. JULY–Dec. 1895) (citing a speech of British author Hall Caine gave in Toronto on October 25,

1895, in which he stated that the “one great country which has not yet entered into the Berne Convention . . . is your

neighbour, the United States”).

LIBRARY OF CONGRESS COPYRIGHT OFFICE, INTERNATIONAL COPYRIGHT UNION: REPORT OF THE DELEGATE OF THE UNITED

STATES TO THE INTERNATIONAL CONFERENCE FOR THE REVISION OF THE BERNE COPYRIGHT CONVENTION, HELD AT BERLIN,

GERMANY, OCTOBER 14 TO NOVEMBER 14, 1908, COPYRIGHT OFF. BULL. NO. 13, at 9 (1908) (indicating that the United States

participated at the second meeting of the International Union for the Protection of Works of Literature and Art as a

“listening delegate”).

See id at 10–11 (pointing out that the German government, as hosts of the Berlin conference, invited twenty non-union

countries to attend the conference because “delegates from nonunion countries would at all events contribute to arouse

and increase interest in the Berne Union and its beneficial work”).

See A Bill to Enable the United States to Enter the International Copyright Union, S. 1928, 73d Cong. § 4 (1933) (“[T]he

author of any copyrighted work, even after the assignment of the copyright in such work, shall at all times have the

right to claim the authorship of his work, and the right to oppose every distortion, mutilation, or other modification of

the said work which might be prejudicial to his honor or his reputation, as well as the right to restrain the publication

and/or the performance of the mutilated work.”).

See Letter from Thorvald Solberg, Register of Copyrights (1897–1930), to Sen. Bronson Cutting (May 30, 1934) (on file

with the Library of Congress in the Bronson M. Cutting Papers);LIBRARY OF CONGRESS COPYRIGHT OFFICE, THIRTY-

SEVENTH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING JUNE 30, 1934, at 7–9 (1934)

(“THIRTY-SEVENTH ANNUAL REPORT”); Film Men Fight Copyright Bill, L.A. TIMES, May 30, 1934, at 4. In 1934, The Senate

Committee on Foreign Relations held a series of restricted and public hearings on the United States’ potential joining of

the Berne Convention. They heard from a variety of stakeholders and witnesses who both supported and opposed the

U.S. Copyright Office Authors, Attribution, and Integrity

integrity because “some modification of a work is often necessary to adjust it to the requirements

of screen production.”

The second major bill was introduced by Senator F. Ryan Duffy in 1935, and it also

included explicit moral rights protections, this time with carve outs for contractual override,

exceptions to the right of integrity for certain industries, and a proviso protecting existing

common law and equitable remedies.

The Dramatists’ Guild and the American Association of

Book Publishers both objected to the moral rights provision.

The American Association of Book

Publishers suggested amendments to the bill that would leave any changes required by the moral

rights provisions in Berne to be handled by contracts rather than by statute.

Authors, on the

other hand, “desired provisions that would make it less easy for publishers to edit, arrange, or

adapt their works without their express consent.”

The exception to the right of integrity for

certain industries was, however, supported by the Motion Picture Producers and Distributors of

America who stated, “Without restriction of the moral rights of authors, our industry is lost.”

Music publishers also wished for the exception to be extended to their industry.

The Duffy bill

died in 1936.

United States joining Berne. See THIRTY-SEVENTH ANNUAL REPORT at 7–9 (1934); see generally International Copyright

Union: Hearings Before the S. Comm. on Foreign Relations on S. 1928, A Bill to Enable the United States to Enter the

International Copyright Union, 73d Cong. pt. 2, at 23 (1934).

THIRTY-SEVENTH ANNUAL REPORT at 8.

See An Act to Amend and Consolidate the Acts Respecting Copyright, S. 3047, 74th Cong. § 23 (1935).

See LIBRARY OF CONGRESS COPYRIGHT OFFICE, THIRTY-NINTH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE

FISCAL YEAR ENDING JUNE 30, 1936, at 10–11 (1936) (“THIRTY-NINTH ANNUAL REPORT”); see also Revision of Copyright Laws:

Hearings Before the H. Comm. on Patents, 74th Cong. 1417 (1936) (“Revision of Copyright Laws Hearings”) (statement of

Edwin P. Kilroe, Attorney, Fox Picture Corporation, Motion Picture Producers’ Association) (noting that “[w]ithout

restriction of the moral rights of authors, our industry is lost. We must, by the very nature of our business, make

changes in stories and plays. We have to meet censorship laws, and we have to meet various laws throughout the

country, and unless we have the right to make those changes, we are completely at the mercy of the authors”); Elmer

Davis, Vice President, Author’s League, Letter to the Editor, Case Against the Duffy Bill, SATURDAY REV., Apr. 4, 1936, at 9

(the Authors’ League objected to joining the Berne Convention altogether).

THIRTY-NINTH ANNUAL REPORT at 11.

Letter from Wallace McClure, Chairman, Inter-Departmental Comm. on Copyright, to Sen. F. Ryan Duffy (May 1,

1937) (on file with the Wisconsin Historical Society).

Letter from Wallace McClure, Chairman, Inter-Departmental Comm. on Copyright, to Sen. F. Ryan Duffy (May 18,

1935) (on file with the Wisconsin Historical Society) (quoting a motion picture representative’s testimony during an

executive session with the Senate Committee on Patents on May 8, 1935; discussing S. 2465, 74th Cong. (1935), a

precursor to S. 3047).

See Letter from Wallace McClure, Chairman, Inter-Departmental Comm. on Copyright, to Sen. F. Ryan Duffy (May 31,

1935) (on file with the Wisconsin Historical Society) (discussing S. 2465, 74th Cong. (1935), a precursor to S. 3047).

U.S. Copyright Office Authors, Attribution, and Integrity

Momentum for amending U.S. copyright law and ratifying the Berne Convention was

soon overtaken by World War II.

By 1950, focus in the United States had moved away from

joining the Berne Convention to exploring a new copyright agreement being negotiated through

the auspices of the United Nations Educational, Scientific and Cultural Organization

(“UNESCO”).

These negotiations would ultimately lead to the creation of the Universal

Thereafter, in 1956, Congress and the U.S. Copyright Office initiated an extensive review of the

U.S. copyright law necessary for a planned full revision of the Copyright Act of 1909.

With a

full review of domestic copyright laws underway and international copyright protection for U.S.

works secured through a variety of bilateral agreements and the UCC, Congress paid little

attention to the Berne Convention and its moral rights article again until the late 1970s.

No sooner had the brand new Copyright Act of 1976 come into force in 1978 than serious

conversations about the United States joining the Berne Convention were re-started.

That year,

Organization (“WIPO”)

to analyze whether the new United States copyright law was compatible

with the Berne Convention, where she reported receiving questions about a number of issues,

including “the lack of express protection for the moral rights of authors in the U.S. statute.”

this time, the Berne Convention had reached its (to date) final revision, in Paris in 1971, and

article 6bis read, in pertinent part:

A Committee for the Study of Copyright planned a series of conferences regarding revision of the copyright law and

a draft bill for complete revision of the copyright law was introduced in the Senate in January 1940, but copyright

review halted. Following World War II, the United States did not turn back to domestic copyright revision until 1955.

See U.S. COPYRIGHT OFFICE, EIGHTIETH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING

SEPTEMBER 30, 1977, at 8 (1978).

See U.S. COPYRIGHT OFFICE, FIFTY-FOURTH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING

JUNE 20, 1951, at 4–5 (1952).

See U.S. COPYRIGHT OFFICE, FIFTY-SIXTH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING

JUNE 30, 1953, at 1 (1954); see generally Universal Copyright Convention, Sept. 6, 1952, 6 U.S.T. 2731, 216 U.N.T.S. 132

(“UCC”).

See U.S. COPYRIGHT OFFICE, FIFTY-NINTH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING

JUNE 30, 1956, at 5 (1956).

See LIBRARY OF CONGRESS, ANNUAL REPORT OF THE LIBRARIAN OF CONGRESS FOR THE FISCAL YEAR ENDING SEPTEMBER 30,

1978, at 92 (1979) (“1977–78 ANNUAL REPORT”) (“It seems likely that future copyright historians will mark 1978 as the

year in which concerted efforts to achieve U.S. adherence to the International Convention for the Protection of Literary

and Artistic Property (the Berne Convention) began anew.”).

WIPO is “the global forum for intellectual property services, policy, information and cooperation” within the United

Nations. Inside WIPO, WIPO, http://www.wipo.int/about-wipo/en/. It is self-funded and has 191 member states,

including the United States. See id.

1977–78 ANNUAL REPORT at 93.

U.S. Copyright Office Authors, Attribution, and Integrity

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.

In the late 1980s, members of Congress began to introduce bills to facilitate the United

States joining the Berne Convention. At least one of the proffered bills included express statutory

protections for moral rights.

Other bills expressly declared that protections for moral rights

would be unaffected by adherence to the Berne Convention.

Familiar discussions on whether

legislative changes were necessary for the United States to join the Berne Convention, including

whether changes were required to implement the moral rights provision, resumed.

As part of

these discussions, the U.S. State Department urged the establishment of an Ad Hoc Working

Group to identify and analyze provisions in U.S. law relevant to Berne adherence.

The Ad Hoc

Working Group, comprised of copyright professionals working in their private capacity,

determined that, while there were no explicit moral rights provisions in title 17, U.S. law was

Berne Convention for the Protection of Literary and Artist Works, art. 6bis(1), Sept. 9, 1886, as revised July 24, 1971,

1161 U.N.T.S. 3 (“Paris Text”).

See, e.g., Berne Convention Implementation Act of 1987, H.R. 1623, 100th Cong. § 7(a) (1987):

§106a. Moral rights of the author

Independently of the copyright in a work other than a work made for hire, and even after transfer of copyright

ownership, the author of the work or the author’s successor in interest shall the right, during the life of the author

and fifty years after the author’s death—

(1) to claim authorship of the work; and

(2) to object to any distortion, mutilation, or other alteration of the work that would prejudice the author’s

honor or reputation.

The rights conferred by this section shall be referred to in this title as “moral rights.”

See, e.g., Berne Convention Implementation Act of 1988, H.R. 4262, 100th Cong. § 4(b) (1988):

(b) Certain Rights Not Affected.—The adherence of the United States to the Berne Convention does not expand or

reduce any right of an author of a work—

(1) to claim authorship of the work; or

(2) to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to,

the work, that would prejudice the author’s honor or reputation.

See, e.g., 1987 BCIA Hearings at 91 (statement of Rep. Carlos Moorhead) (“This is a very important point to us in

California where you can’t get a motion picture studio to buy a play or a book unless they can make a picture that they

can make some money on. And if it’s going to be totally controlled throughout the process by the person that sold their

rights, it could certainly cut down the value to the producer of the picture.”).

See AD HOC WORKING GRP. ON U.S. ADHERENCE TO THE BERNE CONVENTION, FINAL REPORT 2 (1986), reprinted in 10

COLUM.-VLA J.L. & ARTS 513, 554 (1986) (“AD HOC WORKING GRP.”).

U.S. Copyright Office Authors, Attribution, and Integrity

nonetheless compatible with the Berne Convention through the protections afforded by a

combination of existing federal and state laws, as well as various common law principles.

The United States acceded to Berne in 1988 after passage of the Berne Convention

Implementation Act (“BCIA”).

When considering whether the United States’ legal framework

adequately provided moral rights protections, Congress drew upon the Ad Hoc Working Group’s

analysis of existing moral rights protections, as well as congressional testimony and international

The majority of those who testified before Congress argued

against any change to U.S. law concerning an author’s right to control attribution or the integrity

of a work, stating that current U.S. law was sufficient.

For example, a representative of Walt

Disney Productions testified that “developments in the laws of unfair competition, trademark,

privacy, [the section 106 right to prepare derivative works, the law of defamation], and the like”

precluded the need for new statutory moral rights.

100

Additionally, then-Director General of

WIPO, Arpad Bogsch, explained that the United States could become a Member of Berne without

making any changes to U.S. law for the purposes of implementing article 6bis.

101

While many

witnesses argued that existing law “simply isn’t [sufficient].”

102

They pointed out that common

law principles such as defamation failed to provide consistent protection of a creator’s right of

integrity, short of “extreme cases of blatant and outrageous misrepresentations.”

103

Similarly,

state moral rights statutes were criticized as being few in number; the Lanham Act was criticized

as providing “insufficient [remedies] to meet the goals of Berne”; and the proponents’ reliance on

See id. at 554.

Berne Notification No. 121: Berne Convention for the Protection of Literary and Artistic Works: Accession by the United States

of America, WORLD INTELLECTUAL PROP. ORG. (Nov. 17, 1988), available at

https://www.wipo.int/treaties/en/notifications/berne/treaty_berne_121.html.

See H.R. REP. NO. 100-609, at 37–38 (1988).

See id. at 33 (noting that “[t]he great majority [of congressional witnesses] testified that the United States should

adhere to Berne, and that no additional law-making was needed to satisfy the standard of Article 6bis”); see also 1987

BCIA Hearings at 692 (written statement of Barbara Ringer, former Director, Copyright Division, UNESCO; former

common law, are fully sufficient to meet our obligations under Berne without the need for federal statutory provisions

on the so-called ‘moral right.’”); id. at 244 (statement of Kenneth W. Dam, Vice President, Law and External Relations,

IBM) (“[C]urrent U.S. protection of moral rights is fully compatible with article 6 bis of Berne.”).

100

1987 BCIA Hearings at 230 (statement of Peter Nolan, Vice President and General Counsel, Walt Disney Productions,

on behalf of the Motion Picture Association of America); see also id. at 233.

101

See Letter from Arpad Bogsch, Dir. Gen., World Intellectual Property Organization, to Irwin Karp, Esq. (June 16,

1987), reprinted in 1987 BCIA Hearings at 213–14.

102

1987 BCIA Hearings at 408 (statement of Sydney Pollack, Directors’ Guild of America).

103

Id.

U.S. Copyright Office Authors, Attribution, and Integrity

evolving case law was deemed “largely speculative.”

104

The Register of Copyrights, in his

testimony on the BCIA, did not take a position on the question of whether or how to implement

article 6bis, other than to note the importance of the issue.

105

Congress acknowledged both viewpoints, but ultimately concluded that existing U.S. laws

provided protections substantively equivalent to moral rights, and therefore the United States

fully complied with the requirements of article 6bis through a “composite,” “mélange,” or

“patchwork” of laws.

106

2. The Moral Rights Patchwork

Congress’ conclusion that there was “a composite of laws in this country that provides the

kind of protection envisioned by Article 6bis”

107

identified a number of legal routes by which an

aggrieved author-plaintiff could pursue moral rights-like claims under federal and state law.

These included:

• preventing false attribution under section 43(a) of the Lanham Act;

108

• adjusting their moral rights vis-à-vis specific works, through guild agreements or

party-negotiated contracts;

• authors’ exclusive right to create and authorize derivative works;

109

• restrictions on compulsory licensees’ right to arrange musical works recorded and

distributed under a mechanical license;

110

104

Id. See also 1987 BCIA Hearings at 443 (written statement of William Pierson, Writers Guild of America) (arguing that

the Lanham Act “only allows a disclaimer,” which does not provide adequate integrity rights); id. at 446–49 (statement

of William A. Smith, Academician, National Academy of Design) (noting that after his mural was altered and still

attributed to him, “[n]either our common law, nor U.S. statutory law provide[d] me redress; in any Berne Convention

member nation I would surely have such redress”).

105

See 1987 BCIA Hearings at 48 (written statement of Ralph Oman, Register of Copyrights and Assistant Librarian for

is essential.”).

106

H.R. REP. NO. 100-609, at 34 (1988). See also Vis ual Artists Ri ghts Act of 1989: Hearing on H.R. 2690 Before the Subcomm.

on Courts, Intellectual Prop., & the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. 104 (1989) (“1989 VARA

Hearing”) (statement of John B. Koegel, Esq.); Ilhyung Lee, To w a r d a n A m e rican Moral Rights in Copyright, 58 WASH. &

LEE. L. REV. 795, 800 (2001).

107

H.R. REP. NO. 100-609, at 34 (1988).

108

See 15 U.S.C. § 1125(a).

109

See 17 U.S.C. § 106(2).

110

See 17 U.S.C. § 115(a)(2).

U.S. Copyright Office Authors, Attribution, and Integrity

• terminating or transferring licenses;

111

• state statutes protecting authorship and integrity rights in certain works;

112

and

• state laws covering privacy and publicity, contracts, fraud and misrepresentation,

unfair competition, and defamation.

113

Since passage of the BCIA, there have been two important additions to the U.S. moral

rights patchwork.

114

The first is the Visual Artists Rights Act of 1990, known as VARA, which

grants authors of certain “work[s] of visual art” the right to claim or disclaim authorship in the

work, as well as a limited right to prevent distortion, mutilation, or modification of a work that is

of recognized stature.

115

The second is section 1202 of title 17—enacted in 1998 as part of the

Digital Millennium Copyright Act—which limits the removal, alteration, or falsification of certain

categories of information regarding a copyrighted work, including the name of the author of the

work.

116

Both VARA and section 1202 are discussed in detail in Section IV of this Study.

D. Post-Berne Developments: New WIPO Treaties

In 1996, WIPO finalized two new treaties which aimed to update international copyright

norms for the digital environment: the WIPO Copyright Treaty (“WCT”) and the WIPO

111

See 17 U.S.C. § 203.

112

See H.R. REP. NO. 100-609, at 34 (1988) (citing California, Louisiana, Maine, Massachusetts, New Jersey, New York,

Pennsylvania, and Rhode Island as examples).

113

See id. at 34.

114

Not included in Congress’ list of provisions that, in combination, provide moral rights-like protections was the

National Film Preservation Act (“NFPA”) of 1988, which required that films added to the National Film Registry must

display a notice during distribution or exhibition if they had been “materially altered” without the director,

screenwriter, or other creators’ participation, a designation that included colorization of black–and-white films. Pub. L.

No. 100-446, § 4, 102 Stat. 1774, 1784–85 (1988) (codified at 2 U.S.C. §§ 178–178l), repealed by Copyright Amendments Act

of 1992, Pub. L. No. 102-307, § 214, 106 Stat. 264, 272 (1992). By requiring a label to warn consumers that a film had

been altered without permission, the NFPA allowed some creators to “disclaim responsibility” and establish a form of

“anti-attribution” for their edited works. 3 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 8D.02[D][3]

(3d ed. 2017) (“NIMMER ON COPYRIGHT”). This notice requirement did not survive when the NFPA was reauthorized in

1992, and thus lasted a mere four years. See Copyright Amendments Act of 1992, Pub. L. No. 102-307, §§ 201–214, 106

Stat. 264, 267–72 (1992) (codified at 2 U.S.C. §§ 179–179k), repealed by Pub. L. No. 104-285, 110 Stat. 3382 (1996).

115

VARA, Pub. L. No. 101-650, §§ 602–603, 104 Stat. 5128, 5128–30 (1990) (codified at 17 U.S.C. §§ 101, 106A(a)).

116

See DMCA, Pub. L. No. 105-304, § 103, 122 Stat. 2860, 2872–73 (1998) (codified as amended at 17 U.S.C. § 1202(a)–(c)).

U.S. Copyright Office Authors, Attribution, and Integrity

Performances and Phonograms Treaty (“WPPT”).

117

The United States signed both treaties in

1997, and ratified the treaties in 1999.

118

Both treaties entered into force in 2002.

119

Of particular interest, article 5 of the WPPT provides for moral rights for performers in

their “live aural performances or performances fixed in phonograms.”

120

The Senate Foreign

Relations Committee, when presenting the treaties to the full Senate for advice and consent,

explained that performers’ moral rights could be covered by the existing patchwork of

protections in the United States, the understanding of which had been pieced together during the

time of Berne implementation.

121

117

WIPO Copyright Treaty, Dec. 20, 1996, S. TREATY DOC. NO. 105-17, 2186 U.N.T.S. 121 (“WCT”); WIPO Performances

and Phonograms Treaty, Dec. 20, 1996, S. TREATY DOC. NO. 105-17, 2186 U.N.T.S. 203 (“WPPT”).

118

See S. TREATY DOC. NO. 105-17, at III (1997); WCT Notification No. 10: WIPO Copyright Treaty: Ratification by the United

States of America, WIPO (Sept. 14, 1999), available at https://www.wipo.int/treaties/en/notifications/wct/

treaty_wct_10.html; WPPT Notification No. 8: WIPO Performances and Phonograms Treaty: Ratification by the United States

of America, WIPO (Sept. 14, 1999), available at https://www.wipo.int/treaties/en/notifications/wppt/treaty_wppt_8.html.

119

WCT Notification No. 32: WIPO Copyright Treaty: Entry into Force, WIPO (Dec. 6, 2001), available at

https://www.wipo.int/treaties/en/notifications/wct/ treaty_wct_32.html; WPPT Notification No. 32: WIPO Performances

and Phonograms Treaty: Entry into Force, WIPO (Feb. 20, 2002), available at https://www.wipo.int/treaties/en/

notifications/wct/treaty_wct_32.html.

120

WIPO Performances and Phonograms Treaty, art. 5, Dec. 20, 1996, S. TREATY DOC. NO. 105-17, 2186 U.N.T.S. 203.

Article 5(1) reads as follows:

Independently of a performer’s economic rights, and even after the transfer of those rights, the

performer shall, as regards his live aural performances or performances fixed in phonograms, have

the right to claim to be identified as the performer of his performances, except where omission is

dictated by the manner of the use of the performance, and to object to any distortion, mutilation or

other modification of his performances that would be prejudicial to his reputation.

121

See S. EXEC. REP. NO. 105-25, at 10 (1998) (“This deference to national law may allow the United States to rely upon a

patchwork of existing state laws and the federal trademark law as the legal basis for satisfying the Treaty obligation,

without enacting new federal legislation.”). Similar discussions about moral rights did not need to occur with the

ratification that same decade of two other treaties involving copyright—both the North America Free Trade Agreement

(“NAFTA”) and the World Trade Organization (“WTO”) Agreement on Trade-Related Aspects of Intellectual Property

Rights (“TRIPS”) incorporate Berne but not Article 6bis—because these were trade agreements and moral rights are

non-economic and therefore not related to trade. See U.S. GEN. ACCOUNTING OFFICE, NORTH AMERICAN FREE TRADE

AGREEMENT: ASSESSMENT OF MAJOR ISSUES REPORT TO THE CONGRESS, VOLUME I, at 95 (1993); IFAC-3, REPORT ON THE

INTELLECTUAL PROPERTY CHAPTER AND OTHER INTELLECTUAL PROPERTY-RELATED ELEMENTS OF THE NORTH AMERICAN FREE

TRADE AGREEMENT (NAFTA) 9 (1992) (“As in the . . . [draft TRIPS text] the NAFTA copyright obligations do not extend

to moral rights but only to the economic rights provided in the Berne Convention. This exclusion recognizes the

undeveloped nature of what constitutes moral rights violations in Berne countries and that they are not trade-related.”);

Intellectual Property and International Issues: Hearings Before the Subcomm. on Intellectual Prop. & Judicial Admin. of the H.

Comm. on the Judiciary, 102d Cong. 350–51 (1991) (written statement of Eric M. Smith, General Counsel, International

Intellectual Property Alliance) (“Unlike the well-understood economic rights in Berne that must govern the

U.S. Copyright Office Authors, Attribution, and Integrity

Furthermore, both the WCT (article 12) and the WPPT (article 19) also contained

obligations concerning rights management information (“RMI”). Congress added section 1202 to

title 17 to implement these RMI obligations in October of 1998.

122

The Senate gave its advice and

consent to the ratification of both of these treaties in 1998, and they were ratified the following

year.

123

In 2012, after many years of negotiations, WIPO completed the Beijing Treaty on

Audiovisual Performances (“Beijing Treaty”). Article 5 of the Beijing Treaty grants performers

rights of attribution and integrity in their live and fixed audiovisual performances.

124

The United

States is a signatory to the treaty but has not yet ratified it. President Obama’s administration

transmitted the Treaty to the Senate Committee on Foreign Relations for advice and consent in

2016.

125

The Administration also submitted to Congress additional legislation that addressed

“limited statutory changes for the United States to implement the Treaty.”

126

This legislative

proposal did not include any statutory changes that would address issues related to moral

rights.

127

There was no legislative proposal on the Beijing Treaty pending before the 115th

Congress, which ended its session on January 3, 2019, and no such legislative proposal has yet

been introduced in the 116th Congress.

III. GUIDING PRINCIPLES FOR REVIEW OF MORAL RIGHTS REGIME

In its review of the results of the moral rights symposium and the written comments

submitted as part of this Study, the Copyright Office identified three general principles to guide

its analysis of the current U.S. moral rights regime. The first is the need to harmonize any

international trade in protected works, moral rights are non-economic, non-trade related in purpose and in operation

and are inappropriate for inclusion as a mandatory rule in a GATT agreement.”).

122

See DMCA, § 103 Pub. L. No. 105-304, 122 Stat. 2860, 2872–74 (1998) (codified as amended at 17 U.S.C. § 1202). Title I

of the DMCA was known as the WIPO Copyright and Performances and Phonograms Treaties Implementation Act of

1998. It amended title 17 to add a new chapter 12, which prohibits circumvention of copyright protection systems and

provides protection for copyright management information.

123

See Resolution of Ratification: Senate Consideration of Treaty Doc. No. 105-17 (1998); WCT Notification No. 10: WIPO

https://www.wipo.int/treaties/en/notifications/wct/treaty_wct_10.html; WPPT Notification No. 8: WIPO Performances and

Phonograms Treaty: Ratification by the United States of America, WIPO (Sept. 14, 1999), available at

https://www.wipo.int/treaties/en/notifications/wppt/treaty_wppt_8.html.

124

Beijing Treaty on Audiovisual Performances, art. 5, June 24, 2012 (not yet in force).

125

See S. TREATY DOC. NO. 114-8 (2016).

126

Letter from John F. Kerry, Sec’y of State, to President Barack Obama (Jan. 22, 2016), in S. TREATY DOC. NO. 114-8, at vi

(2016).

127

Letter from Michelle K. Lee, Under Sec’y of Commerce for Intellectual Prop. & Dir. of the U.S. Patent & Trademark

Office, to Joseph R. Biden, President of the Senate (Feb. 26, 2016), available at http://www.uspto.gov/sites/default/files/

documents/Beijing-treaty-package.pdf.

U.S. Copyright Office Authors, Attribution, and Integrity

proposals with certain foundational precepts of U.S. law, namely the First Amendment, fair use,

and respect for the constitutional requirement of limited copyright terms. The second is

acknowledging the critical importance of the attribution and integrity rights to authors. The third

is the importance of recognizing that, due to the diversity among creative industries and

categories of works, one size of moral rights protections cannot fit all industries.

A. Respect for Foundational Principles of U.S. Law

In considering possible changes or additions to the moral rights scheme in the United

States, the Copyright Office believes any modifications must align with other aspects of U.S. law.

In particular, any changes to the law must comport with the First Amendment, fair use, and

constitutional requirement of limited copyright terms.

1. Moral Rights and the First Amendment

The First Amendment is a fundamental constitutional protection guaranteeing the right of

free speech.

128

protecting and promoting free speech and original expression. As the Supreme Court said in

1985, “[T]he Framers intended copyright itself to be the engine of free expression.”

129

To that end,

users—notably the fair use exception and the idea/expression dichotomy.

130

In response to the Office’s Notice of Inquiry, some commenters raised concerns that

adoption of stronger protections for moral rights in the United States could not be harmonized

with the First Amendment,

131

or that such laws would weaken current First Amendment

protections, particularly with regard to critiques or criticisms of a work. For example,

commenters asked that the Office consider the possibility that a right of integrity would impose

an additional legal chilling effect on those publishers, authors, and scholars who critique the

work of another author in a way that may damage the initial author’s reputation.

132

Another

128

U.S. CONST. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of grievances.”).

129

Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558 (1985).

130

See Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003) (discussing the idea/expression dichotomy and the fair use doctrine

as free speech safeguards).

131

See Wendy J. Gordon, Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at

2 (Mar. 30, 2017) (“The only way to stop the incursions on free speech is to stop the creation and expansion of new

private rights to control speech. So-called ‘moral rights’ can give authors precisely that dangerous and unwise

power.”).

132

See Association of American Publishers (“AAP”), Comments Submitted in Response to U.S. Copyright Office’s Jan.

23, 2017, Notice of Inquiry at 9 (Mar. 30, 2017) (“AAP Initial Comments”) (noting that “moral rights would pose

significant hurdles” to scholars who criticize another’s work); Library Copyright Alliance (“LCA”), Comments

U.S. Copyright Office Authors, Attribution, and Integrity

commenter also suggested that a statutory right of attribution could violate the First Amendment

by compelling speech, specifically by requiring a corporate author to identify all of the creative

contributors to a work.

133

Commenters put forth several suggestions for potential means of ensuring free speech

protections under an enhanced moral rights regime. One commenter asserted that “[t]o ensure

free speech protections, the original author should bear the burden of proof when claiming

infringement of the right of integrity.”

134

The same commenter, and others, suggested

establishing a reasonableness standard that would work to prevent frivolous moral rights claims

and protect speech.

135

A number of commenters also discussed how the moral rights of

attribution and integrity can actually work to protect free speech rights of authors. The right of

integrity, and to a lesser extent the right of attribution, can protect an author’s right not to speak

by ensuring that creative works are not modified or used in a way that the author fundamentally

disagrees with or disavows.

136

Existing protections for attribution and integrity interests in U.S. law have been

implemented consistent with the First Amendment.

137

And, while the Office recognizes that

Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 3 (Mar. 30, 2017) (“LCA Initial

Comments”) (stating that additional moral rights “would chill criticism“). But see Creators’ Rights Alliance (“CRA”),

Reply Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 2 (May 15, 2017)

(“CRA Reply Comments”) (stating that “this is to misread” Article 6bis of the Berne Convention and explaining that

proving a use is “prejudicial to [the author’s] honor or reputation” is a high bar).

133

See Motion Picture Association of America, Inc. (“MPAA”), Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 11 (Mar. 30, 2017) (“MPAA Initial Comments”) (citing U.S. Agency for Int’l Dev.

v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013) (“It is . . . a basic First Amendment principle that ‘freedom of

speech prohibits the government from telling people what they must say.’”). But see Music Creators of North America,

Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 4–5 (Mar. 30, 2017)

(“Music Creators Initial Comments”) (suggesting that moral rights could be used to prevent compelled speech).

134

Future of Music Coalition (“FMC”), Reply Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017,

Notice of Inquiry at 8 (May 15, 2017) (“FMC Reply Comments”).

135

See FMC Reply Comments at 9 (“To further protect free speech, a reasonableness benchmark could be

established[.]”). See Authors Alliance, Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice

of Inquiry at 6 (Mar. 30, 2017) (“Authors Alliance Initial Comments”) (“A robust ‘reasonableness’ limitation on integrity

and attribution rights should also be in place to prevent these rights from stifling onward creativity.”); Jani

McCutcheon, Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 3 (Mar. 6,

2017) (“[I]t may be desirable to introduce a reasonableness defense, similar to that existing in Australian moral rights

legislation.”).

136

See, Authors Guild, Inc., Reply Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of

Inquiry at 7-8 (May 15, 2017) (“Authors Guild Reply Comments”) (explaining that writers’ “bad experiences with the

editing process” prompts a desire for an integrity right).

137

For example, in cases involving expressive works, courts have formulated tests for reconciling First Amendment

concerns with the application of both state right of publicity claims and false attribution claims under the Lanham Act.

U.S. Copyright Office Authors, Attribution, and Integrity

enhanced moral rights protections could potentially create new tensions with the right of free

speech, it does not see these tensions as inevitable or irreparable. At a minimum, for example,

further statutory codification of moral rights could easily be limited by both the fair use exception

and the idea/expression dichotomy.

138

2. Moral Rights and Fair Use

Reconciling the First Amendment with moral rights protections raises the related issue of

how more explicit protections for moral rights could implicate the fair use doctrine, a vital First

Amendment safeguard. The fair use doctrine works to balance the ability of authors to control

the use of their copyrighted works with the free speech interests of secondary users. Fair use also

enables scholarship and criticism of existing works by allowing authors to use not only the facts

and ideas of a work but the expression of that work itself.

139

Even prior to its statutory

codification, the fair use doctrine allowed courts to “avoid rigid application of the copyright

statute when, on occasion, it would stifle the very creativity which that law is designed to

foster.”

140

Fair use furthers the goals of copyright law by simultaneously promoting a robust

marketplace of ideas while also incentivizing authors to create new works that build or comment

upon existing ones. However, more explicit protections for the rights of integrity and attribution

in the United States may create tensions with the fair use doctrine, depending upon how these

protections are implemented.

While fair use allows secondary users to criticize, comment on, or parody an original work

without facing liability for infringement, the moral right of integrity protects an author’s work

against any “derogatory action” that is damaging to the author’s honor or reputation.

Consequently, the Office heard some concern regarding “how a statutory right of integrity. . .

would bode with a court’s ability to make a fair use determination.”

141

At least one commenter

also raised concerns about reconciling the fair use doctrine with the right of attribution,

expressing concern that an attribution right “would conflict with many ordinary practices of

citation, and would threaten standard quotations and fair uses.”

142

Some commenters also raised

See, e.g., Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180, 1186 (9th Cir. 2001); Rogers v. Grimaldi, 875 F.2d 994, 998–99 (2d

Cir. 1989).

138

See, e.g., FMC Reply Comments at 8–9; Kernochan Center for Law, Media and the Arts, Comments Submitted in

Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 9 (Mar. 30, 2017) (“Kernochan Center Initial

Comments”); National Writers Union (“NWU”) & Science Fiction and Fantasy Writers of America (“SFWA”), Joint

Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 6 (Mar. 20, 2017)

(“NWU-SFWA Joint Initial Comments”).

139

See Eldred v. Ashcroft, 537 U.S. 186, 197, 219 (2003).

140

Iowa State Univ. Research Found., Inc. v. Am. Broad. Corp., 621 F.2d 57, 60 (2d Cir. 1980).

141

AAP Initial Comments at 8.

142

Organization for Transformative Works (“OTW”), Comments Submitted in Response to U.S. Copyright Office’s Jan.

23, 2017, Notice of Inquiry at 8 (Mar. 30, 2017) (“OTW Initial Comments”).

U.S. Copyright Office Authors, Attribution, and Integrity

the issue of the difficulties that would result if an attribution right was applied to works with

multiple authors.

143

Many noncommercial, transformative works could be chilled, it was argued,

if attribution were required in such cases, especially when the original work is authored by

several people, or when the original work is being incorporated into a larger work.

144

Other commenters opined that fair use would not be an adequate safeguard to protect

secondary works that follow-on or use elements of prior works if moral rights were to be applied

more strictly. As one commenter stated, “[W]e are most concerned about how an extension of the

use in the United States.”

145

Another commenter stated that implementing statutory rights “could

cause courts to restrict the scope of fair use” in order to give these new rights meaning.

146

Commenters also argued that creators would face uncertainty in trying to apply fair use to

statutory moral rights given the fair use doctrine’s present unpredictability, which could have a

chilling effect on speech.

147

One illustration of a fair use case that implicates moral rights is Campbell v. Acuff-Rose

Music, Inc.

148

That 1994 Supreme Court case concerned an unauthorized parody of Roy Orbison’s

1964 pop hit “Oh, Pretty Woman” recorded by the rap group 2 Live Crew.

149

2 Live Crew had

originally asked permission from Acuff-Rose (the assignee of the song’s copyright) to parody the

song but was refused.

150

When 2 Live Crew released a parody anyway, Acuff-Rose sued. 2 Live

Crew prevailed on its fair use claim in the District Court, but the Court of Appeals found no fair

use, despite recognizing 2 Live Crew’s version as a parody.

151

The Supreme Court reversed the

Court of Appeals and remanded the case, holding that neither the commercial nature of 2 Live

Crew’s recording, nor the amount of content it copied from the Roy Orbison song should be

143

See, e.g., OTW Initial Comments at 8; MPAA Initial Comments at 8.

144

See, e.g., Center for Democracy & Technology (“CDT”), Reply Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 4 (May 15, 2017) (“CDT Reply Comments”); OTW Initial Comments at 8. Cf.

MPAA Initial Comments at 8 (arguing that a right of attribution could be at odds with the ability to make a fair use of

material incorporated into a larger work because display of the original author’s name “would be impractical or would

detract from the fair user’s critical or parodic message”).

145

Public Knowledge (“PK”), Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of

Inquiry at 3 (Mar. 30, 2017) (“PK Initial Comments”).

146

Electronic Frontier Foundation (“EFF”), Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017,

Notice of Inquiry at 3 (Mar. 30, 2017) (“EFF Initial Comments”).

147

See EFF Initial Comments at 3; Motion Picture Association of America (“MPAA”), Reply Comments Submitted in

Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 9 (May 15, 2017) (“MPAA Reply Comments”).

148

510 U.S. 569 (1994).

149

Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 572 (1994).

150

Id. at 572–73.

151

Id. at 573–74.

U.S. Copyright Office Authors, Attribution, and Integrity

factored against the defendant’s fair use claim, considering “the parodic purpose of the use.”

152

Parody, the court found, falls into the favored statutory category of “criticism or comment.”

153

Additionally, the Court held that, because musical parody requires the use of that part of the

original work that “most readily conjures up the song,” the use of the “heart” of the work is not

excessive.

154

Campbell exemplifies the fair use doctrine’s function as a safeguard on secondary

users’ right to free expression, but also illustrates how fair use can allow for a work to be used in

a way that the original author may disavow. Accordingly, any implementation of greater moral

rights protections would need to allow for uses such as 2 Live Crew’s parody as a fair use in

order to maintain the balance between copyright protections and free expression.

Many commenters expressed optimism that fair use as it is currently constituted could be

applied to any additional moral rights protections. Some noted that applying fair use to moral

rights protections, as is the case with the moral rights afforded in VARA,

155

would keep a

statutory right of attribution or integrity from impinging on uses that courts should deem fair.

156

Indeed, the robust fair use jurisprudence developed by the courts can be applied to moral rights

claims with no less uncertainty than it is currently applied to alleged infringement of economic

rights.

157

Additionally, at least one commenter believed it was unlikely that cases where a fair use

was found would have a different result if a statutory right of integrity had existed.

158

The Berne

Convention standard for integrity is much narrower than an author’s mere unhappiness with a

derivative work, and thus “if altering a work is found ‘fair’ because the change gives the work

‘new meaning or message,’ . . . the first author’s ‘honor or reputation’ remains unscathed

precisely because the point is that the new message is not the first author’s message.”

159

Thus, the

Office is of the opinion that, as with the First Amendment, any tensions between potential

statutory moral rights protections and the fair use doctrine can be overcome through proper

calibration of any statutory framework.

152

Id. at 594.

153

See id. at 579.

154

Id. at 588–89.

155

See 17 U.S.C. § 106A(a).

156

See, e.g., American Association of Law Libraries (“AALL”), Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 2 (Mar. 29, 2017) (“AALL Initial Comments”); Authors Guild Reply Comments

at 7; FMC Reply Comments at 8.

157

See AALL Initial Comments at 2.

158

See Kernochan Center for Law, Media and the Arts, Reply Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 11 (May 15, 2017) (“Kernochan Center Reply Comments”).

159

Kernochan Center Reply Comments at 11.

U.S. Copyright Office Authors, Attribution, and Integrity

3. Moral Rights and Copyright Term Limits

Internationally, jurisdictions vary as to the duration of their moral rights protections.

Berne article 6bis provides that the moral rights of attribution and integrity shall, posthumously,

“be maintained, at least until the expiry of the economic rights.”

160

While some countries

accordingly limit their moral rights duration to be coextensive with economic copyright rights,

161

other countries go further and provide a perpetual duration for the rights.

162

It is one of the most fundamental tenets of U.S. copyright law that the exclusive rights

granted to a copyright holder shall be limited in term. Recognizing the importance of a strong

public domain in promoting the progress of culture and the useful arts, the framers of the

Constitution made sure to include in the Copyright Clause that exclusive rights shall be secured

to authors only for “limited times.”

163

It is not entirely clear to the Office whether this

constitutional requirement would apply to moral rights, as such application would likely depend

upon how those rights were implemented into U.S. law, e.g., as rights deriving from the

contains no such limitation on duration).

164

Nonetheless were the U.S. to enact a blanket moral

rights statute, the constitutional “limited times” language supports the notion that such rights

should be limited in time.

Duration was also an issue of great importance for several commenters who, in response

to the Copyright Office’s Notice of Inquiry, urged the Office not to adopt a perpetual approach to

moral rights, opining that to do so would be contrary to U.S. copyright law.

165

Additionally, a

160

Berne Convention for the Protection of Literary and Artistic Works art. 6bis (2), Sept. 9, 1886, as revised July 24, 1971,

and as amended Sept. 28, 1979, S. Treaty Doc. 99-27, 1161 U.N.T.S. 3 (“Berne Convention”).

161

See, e.g., Law on Copyright and Neighboring Rights (1999) art. 18 (Andorra); Copyright Act s 18 (2003) (Ant. & Barb.);

162

See, e.g., Law No. 82 of 2002 (Pertaining to the Protection of Intellectual Property Rights), al-Jarīdah al-Rasmīyah, vol.

2bis, June 2, 2002, art. 143 (Egypt); CODE DE LA PROPRIÉTÉ INTELLECTUELLE [Intellectual Property Code] art. L121-2 (Fr.);

Ley Federal de Derechos de Autor [LFDA] [Authors’ Rights Law] art. 18, Diario Oficial de la Federación [DOF] Dec. 24,

1996, June 15, 2018 (Mex.).

163

U.S. CONST. art. 1, § 8, cl. 8.

164

See Alexander Bussey, Tr a d i t i o nal Cultural Expressions and the U.S. Constitution, 10 BUFF. INTELL. PROP. L.J. 1, 28 (2014)

(“Rights derived from the Commerce Clause are not subject to the ‘limited times’ requirement, however. Therefore, any

trademark-like rights can last perpetually. Furthermore, some limited moral rights resemble trademark rights, so based

on an expansive view of trademark law, some limited moral rights might be able to last perpetually.”). Additionally,

there is some question of whether moral rights, being rights of personhood and not of economic utility, are a good fit

for the “limited times” language. See Ashley Packard, Copyright Term Extensions, the Public Domain and Intertextuality

Intertwined, 10 J. INTELL. PROP. L. 1, 8 (2002).

165

See AALL Initial Comments at 1; AAP Initial Comments at 7; Authors Alliance Initial Comments at 8.

U.S. Copyright Office Authors, Attribution, and Integrity

perpetual approach to moral rights would also conflict with the durational limits of some state

statutory and common laws concerning defamation.

166

Moreover, multiple commenters asserted that, since moral rights relate to the personhood

of the author, the policy rationale for statutory protections for the rights of attribution and

integrity is strongest during the life of the author and weakens thereafter.

167

A limited term of

protection for moral rights would “avoid[] the difficulties of trying to evaluate hypothetical

desires of creators after they have passed, and allow[] the public domain to be freely exploited for

the public good.”

168

The Office is of the opinion that there are strong policy reasons for any statutory right of

attribution or integrity incorporated into the Copyright Act to be limited—either limited to the

lifetime of the author, or, at the outer edge, coextensive with the economic term.

B. Importance of Attribution and Integrity to Creators

Throughout this Study, the Office has heard from many working authors—writers,

musicians, visual artists, filmmakers, and others—and one of their primary messages is the

importance of the moral rights of integrity and attribution for authors everywhere. These

commenters pointed to factors like honor, pride, and recognition as some of the reasons that

attribution and integrity are important to them, as well as the role that these moral rights interests

play in incentivizing new works and in forming the basis for an author’s economic well being.

Authors’ works are, in many cases, a source of honor and pride, and thus authors have a

“deep interest” in having their works correctly attributed to them, and in ensuring that what they

created is made available in an unadulterated manner.

169

To be recognized for one’s work is a

basic human desire, and an author cannot build a reputation without such recognition for both

the fact of their authorship and the ongoing integrity of their work.

170

As one commenter advised,

166

See AAP Initial Comments at 7 (citing Gugliuzza v. K.C.M.C., Inc., 606 So. 2d 790, 791 (La. 1992)) (“Once a person is

dead, there is no extant reputation to injure or for the law to protect. Since the cause of action is intended to redress

injuries flowing from harm to one's reputation, we conclude that to be actionable defamatory words must be ‘of and

concerning’ the plaintiff or, directly or indirectly, cast a personal reflection on the plaintiff.”). However, state rights of

publicity sometimes apply perpetually. See, e.g., TENN. CODE § 47-25-1104 (2014) (allowing for perpetual protection for

the right of publicity so long as the right is commercially exploited by the rightsholder); Martin Luther King, Jr., Ctr. for

Soc. Change, Inc. v. Am. Heritage Prods., Inc., 296 S.E.2d 697 (Ga. 1982) (holding that the right of publicity in Georgia

extends past the death of its owner).

167

See Authors Alliance Initial Comments at 8 n.28; FMC Reply Comments at 4–5; Roberta Kwall, Comments Submitted

in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 4 (Mar. 14, 2017).

168

FMC Reply Comments at 4–5.

169

Authors Guild Reply Comments at 2. See also Authors Alliance Initial Comments at 3.

170

See Authors Alliance Initial Comments at 3.

U.S. Copyright Office Authors, Attribution, and Integrity

“[a]lthough it is often difficult to quantify the value to authors of reputation enhancement by

virtue of public dissemination of their works, the value is real and meaningful to authors.”

171

Also real and meaningful to authors is the role that attribution and integrity play in

providing incentives to create new works. This is especially important to academic authors and

authors of user-generated content on the internet—authors for whom monetary incentives are

secondary to recognition as drivers of creation.

172

The knowledge that their works are being

disseminated without reputation-harming mutilation also encourages such authors in their

creations.

173

Finally, several commenters spoke of the economic importance of attribution and integrity

rights. Recognition for one’s unadulterated work leads to a positive reputation, which leads to

more work as well as an increase in valuation of extant works. “Many times,” one commenter

wrote, “it is the reputation of the artist . . . that adds or gives value to her work.”

174

Additionally,

the very act of attributing a work to its author can serve as a form of advertising.

175

Perhaps the most vivid testimony addressing the combined personal and economic

importance of moral rights to authors was this statement from musician/composer Melvin Gibbs

at the Office’s Moral Rights Symposium in 2016:

For us, attribution—that is our currency. I don’t exist if people don't know who I

am. I mean that in the most literal sense of “I don't eat.” You know, so every time

something goes out that I’ve participated in that I don’t get attribution for, it affects

my family. And how that affects the community is that the less I am able to create,

the less I am able to help other people create. And the less the community of—it

shrinks the art—community of artists, which will eventually shrink the creativity

of this country as a whole.

176

The Copyright Office takes very seriously the importance of attribution and integrity

interests to authors. This factor was, along with the other guiding principles outlined in this

section, preeminent in our considerations as we drafted this Report. While the Office recognizes

that our decision not to recommend adoption of a new statutory moral right at this time may

disappoint some authors, the Office is not yet prepared to recommend a course that would

171

Id.

172

See id. at 4.

173

See id. at 4.

174

CVA Initial Comments at 2.

175

See Zandra Kubota, Reply Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of

Inquiry (May 13, 2017).

176

Session 4, Symposium Transcript, 8 GEO. MASON J. INT’L COM. L. at 89–90 (remarks of Melvin Gibbs,

musician/composer).

U.S. Copyright Office Authors, Attribution, and Integrity

represent such a significant change to U.S. law and industry practices. The Office believes that

the existing patchwork, supplemented by the recommended changes to various federal laws

outlined below, should address many of the concerns expressed by authors during the course of

this study, and believes that further study of whether those targeted changes fully address the

primary concerns of artists would be warranted before adoption of a blanket broad new moral

rights provision.

C. Recognize and Respect Diversity Among Creative Industries and Types of Works

The Copyright Office recognizes that any changes to the current U.S. moral rights regime

should respect the fact that the need for moral rights protection varies by creative sector. A one-

size-fits-all solution that fails to account for the differences between sectors and types of works

would serve no creative community well. For example, take the example of a photograph and a

motion picture. A blanket moral rights regime could well protect the individual author of a

photograph in ways that they are not currently protected—such as providing attribution rights

against persons with whom the author is not in contractual privity.

177

However, such a blanket

system would likely produce only an overlay of duplicative attribution protection for directors,

screenwriters, and performers who are already substantially protected by industry-specific

collective bargaining agreements.

178

Conversely, a blanket regime that, in recognition of the role

that private agreements already play in protecting moral rights, waived statutory protection for

all works covered by contracts, would likely under-protect individual artists and authors who lack

the negotiating power of collective bargaining but who frequently work under contract, such as

most freelance journalists

179

or commercial visual artists.

180

Another consideration in thinking about how a U.S. moral rights regime would work

across industries and types of works is those sectors where attribution interests tend to be

177

See Authors Guild, Inc., Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry

at 9 (Mar. 30, 2017) (“Authors Guild Initial Comments”) (“[I]n the case of unauthorized copies, such as un- or

misattributed works in the context of digital piracy, contract law won’t help ensure attribution.”); CVA Initial

Comments at 18–19 (“Even if attribution is part of an artist/client contract, it is very difficult to enforce.”).

178

See, e.g., Session 6: New Ways to Disseminate Content and the Impact on Moral Rights, in Symposium Transcript, Authors,

Attribution, and Integrity: Examining Moral Rights in the United States, 8 GEO. MASON J. INT’L COM. L. 125, 133 (2016)

(remarks of Alec French, Directors Guild of America) (“And there are things [in collective bargaining] that are facsimiles

of rights of attribution and rights of integrity that you’d find in a moral rights regime.”). But see Directors Guild of

America (“DGA”) & Writers Guild of America, West (“WGAW”), Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 3 (Mar. 30, 2017) (“DGA/WGAW Initial Comments”) (“[W]hile the DGA and

WGA’s collective bargaining agreements establish certain minimum economic benefits in recognition of their artistic

contributions to the work, the legally recognized author of these works is the copyright holder. As a result, directors

and writers are not recognized as authors of their own artistic works and have no recognized mechanism to enforce

their rights of integrity and attribution under U.S. law.”).

179

See Authors Guild Initial Comments at 7-8).

180

See CVA Initial Comments at 18–19.

U.S. Copyright Office Authors, Attribution, and Integrity

governed by sometimes-written, sometimes just generally understood norms, rather than by

contract or statutory law. Like with agreements, these norms—particularly about when to cite the

author of source material or the professional punishment that attaches to plagiarism of another

author—vary across industries and even across mediums, and would not fit easily into a blanket

moral rights regime. For example, in legal writing, attribution norms for academic articles are

quite rigid, whereas practicing lawyers routinely copy without attribution “the form and

language of legal instruments.”

181

Likewise, attribution in historical writing intended for a

popular audience tends not to be as detailed or thorough as writing intended for a scholarly

audience.

182

A one-size-fits-all moral rights regime would risk obliterating these context-specific

and largely self-governing differences between types of works and industries.

IV. DISCUSSION AND FINDINGS

There remains a qualitative issue of whether U.S. moral rights protections are currently

sufficient to the needs of individual authors. Many commenters to this study asserted that the

U.S. moral rights regime offers a robust menu of options for individual authors to protect their

rights of attribution and integrity,

183

with some arguing that the U.S. patchwork style of

protections offers superior protection to that of a statutory scheme.

184

However, other

commenters seeking more comprehensive protections for the rights of attribution and integrity in

the United States identified several holes in the current U.S. moral rights regime, arguing in effect

that the patchwork leaves many areas of the underlying fabric insufficiently or entirely

uncovered.

185

Even when these commenters acknowledge that the United States is in compliance

181

LCA Initial Comments at 3-4.

182

See LCA Initial Comments at 4; see also OTW Initial Comments at 5 (discussing varying attribution norms between

fiction and non-fiction writing as well as between print news and television news).

183

See, e.g., AAP Initial Comments at 5; MPAA Initial Comments at 3; National Music Publishers’ Association

(“NMPA”), Reply Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 4

(May 15, 2017) (“NMPA Reply Comments”).

184

See, e.g., Computer & Communications Industry Association (“CCIA”), Comments Submitted in Response to U.S.

law provides more substantial protection than other Berne Convention adherents.”); LCA Initial Comments at 2

(regarding private institutional punishments for plagiarism); NMPA Reply Comment at 6 (“Songwriters gain much

more through contractual bargaining—either directly or through industry-wide agreements—than they would through

a one size fits all statutory solution.”).

185

See, e.g., Janice T. Pilch, Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry

at 1 (Mar. 30, 2017) (“Pilch Initial Comments”) (“The need to extend moral rights to all categories of works to eliminate

reliance on the ‘patchwork’ of laws that up to now has served to justify moral rights protection in the U.S. has never

been greater.”); International Federation of Journalists (“IFJ”), Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 6 (Mar. 30, 2017) (“IFJ Initial Comments”) (“The reputation of the United

States among authors and performers internationally is not enhanced by the absence of moral rights in that country.”);

Music Creators Initial Comments at 3 (“In general, MCNA agrees with those many commentators who believe that the

United States has not yet enacted laws to codify its moral rights treaty obligations under the Berne Convention.”).

U.S. Copyright Office Authors, Attribution, and Integrity

with its obligations under Berne article 6bis, they point out that “none of the sources of US law,

separately or together, provides adequate protection for authors’ rights of attribution and

integrity.”

186

Recommendations: No federal moral rights statute; improvements to the current patchwork

For the reasons discussed below, the Copyright Office does not recommend creating a

broad federal moral right as a new exclusive right at this time. During the enactment of the

BCIA, Congress followed the approach to amend the Copyright Act “only where there is a clear

conflict with the express provisions of the Berne Convention” and “only insofar as it is necessary

to resolve the conflict in a manner compatible with the public interest, respecting the pre-existing

balance of rights and limitations in the Copyright Act as a whole.”

187

As we outline in this Report, many aspects of the patchwork have remained the same

since passage of the BCIA. Those changes that have occurred to the moral rights patchwork have

been a mixed bag: although some aspects of the existing patchwork have frayed, such as the

narrowing of the availability of claims under section 43 of the Lanham Act for violations of the

rights of attribution and integrity, new squares have been added to the patchwork that provide

additional protections, such as the addition of the Visual Artists Rights Act and section 1202 of

title 17. Nonetheless, the Copyright Office believes that the approach taken by Congress thirty

years ago should be respected absent significant, detrimental changes to the patchwork that

would warrant abandoning the current framework in favor of adoption of a new federal moral

right. The Copyright Office does not find that such changes have occurred.

While new technologies have modified the moral rights landscape, new business practices

have also developed, relying in part on the current legal framework.

188

Enacting a federal moral

rights law could adversely impact this carefully developed schema of contracts and industry

186

Kernochan Center Initial Comments at 4.

187

H.R. REP. NO. 100-609, at 20 (1988); S. REP. NO. 100-352, at 10 (1988) (“S. 1301 will not, and should not, change the

current balance of rights between American authors and proprietors, modify current copyright rules and relationships,

or alter the precedential effect of prior decisions.”).

188

See, e.g., MPAA Initial Comments at 2 (“Further statutory recognition of the moral rights of attribution and integrity

risks upsetting this well-functioning system that has made the United States the unrivalled world leader in motion

picture production for over a century.”); Screen Actors Guild-American Federation of Television and Radio Artists

(“SAG-AFTRA”), Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 2 (Mar.

30, 2017) (“SAG-AFTRA Initial Comments”) (“But to the American performer, there are perhaps no greater rights than

the ability to enforce contracts, and to collectively bargain under federal labor laws.”); Recording Industry Association

of America, Inc. (“RIAA”), Reply Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of

Inquiry at 2 (May 15, 2017) (“RIAA Reply Comments”) (“[R]ecord labels’ agreements with third-parties generally

include attribution requirements. Such contractual provisions are preferable to government mandates that would

presumably apply identical rules to all classes of creative works, rather than treating sound recordings (which typically

involve numerous creative contributors) differently than photographs or novels or videogames (the first two of which

typically involve a single creator).”).

U.S. Copyright Office Authors, Attribution, and Integrity

norms in a way that would actually be detrimental to the protection of attribution and integrity

interests.

189

For instance, contracts and licenses, which are governed by state law, have been at

the forefront of protecting moral rights in the United States for many years and are commonly

used in creative industries for that purpose. The ability of parties to freely negotiate the inclusion

or exclusion of moral rights in a contract is a flexible way of addressing the interests of both

parties. Likewise, the social and professional norms related to plagiarism, while not legally

enforceable, regulate attribution for many different types of authors across various institutions

and media.

190

Changing the “plagiarism patch” would disrupt the decades of social ordering

established via dependence on these practices. Authors without the benefit of certain

mechanisms for protecting their attribution and integrity interests, such as collective bargaining,

can utilize other features of the framework, such as plagiarism norms and contract law, to protect

their interests.

191

Further, depending upon how it would be implemented, and what exceptions and

limitations it would admit, a new moral rights statute could also present tensions with well-

established legal principles, such as the First Amendment, on which the copyright ecosystem

depends.

192

Thus, the Office concludes that a blanket statutory moral right for authors of all types

of copyrightable subject matter would disproportionately disrupt current economic transactions

as well as the legal structure that guides them.

Nonetheless, as in the 1980s, a “minimalist” approach towards reform does not entail

ignoring deficiencies within the current moral rights framework. For this reason, the Office

believes that updates to individual pieces of the patchwork may be advisable to account for the

evolution of technology and the corresponding changes within certain business practices.

Specifically, we note that the gaps in Lanham Act protection caused by the Dastar decision, while

not as large as some suggest, could be filled by a narrowly crafted amendment expanding the

Act’s unfair competition protections to include false representations regarding authorship.

Additionally, the Office suggests three minor changes to VARA: clarifying the definition of

“work of visual art” with regard to commercial works; amending VARA’s “recognized stature”

requirement in order to more firmly guide courts in interpreting that phrase; and amending

VARA’s waiver provision to require all authors to consent to a VARA waiver. The Office’s

analysis of the section 1202 provisions limiting CMI removal or alteration concludes that

189

See, e.g., NMPA Reply Comment at 2 (“The existing U.S. legal framework is in fact preferable to the adoption of a

European-style moral rights regime which would only stand to bring uncertainty and disruption to the music

marketplace and will provide a serious disincentive to the use of musical works by prospective licensees.”).

190

See infra Section IV.B.6.a.

191

See NMPA Reply Comment at 4 (“Together the combination of statutory and common law rights, and contracts forms

a healthy moral rights jurisprudence that provides songwriters, their music publisher partners, and other authors, with

the protections they need. This brings certainty and efficiency to enforcement of these rights in the marketplace.”).

192

See, e.g., MPAA Initial Comments at 10 (“New, as-yet-unspecified, statutory protections for either the rights of

integrity or attribution could indeed implicate the First Amendment.”).

U.S. Copyright Office Authors, Attribution, and Integrity

Congress may want to consider adding a new section 1202A that would better protect authors

and copyright owners against removal or alteration of CMI when intended to conceal attribution.

Finally, the Office proposes that Congress consider a narrowly tailored federal right of publicity,

to address the uncertainty and ambiguity caused by conflicting state laws in this area.

A. Federal Law

1. Misappropriation and Unfair Competition: The Lanham Act

When the BCIA was passed in 1989, the Lanham Act (the federal trademark and unfair

competition statute) was a major component of the U.S. patchwork providing moral rights

protections. Specifically, district and circuit courts had repeatedly held that certain violations of

the rights of attribution and integrity, such as failure to properly credit an author

193

or editing an

author’s work without permission “into a form that departs substantially from the original

work,”

194

could give rise to a claim under section 43(a) of the Lanham Act.

195

The continued

viability of section 43(a) as a vehicle for protecting authors’ attribution and integrity interests has

been called into question, however, following the Supreme Court’s 2003 decision in Dastar Corp.

v. Twentieth Century Fox Film Corp. (“Dastar”),

196

which some courts and commenters have

interpreted as precluding any such claims under the Lanham Act. As discussed below, however,

the Court’s opinion in Dastar is susceptible to more than one interpretation, a situation that has

implications for the continued usefulness of the Lanham Act as part of the moral rights

patchwork.

a) Pre-BCIA Case Law

Section 43(a) provides a remedy for certain “false designation[s] of origin, false or

misleading description[s] of fact, or false or misleading representation[s] of fact” in connection

193

See, e.g., F. E . L . Publ’ns, Ltd. v. Catholic Bishop of Chi., No. 81-1333, 1982 WL 19198, at *10 (7th Cir. Mar. 25, 1982); Smith

v. Montoro, 648 F.2d 602, 607–08 (9th Cir. 1981); Follett v. New Am. Library, Inc., 497 F. Supp. 304, 311–12 (S.D.N.Y. 1980).

As the Ninth Circuit noted when holding that an actor who alleged his name had been replaced on all film credits and

advertising with another actor’s name properly stated a valid claim under section 43(a), an actor’s name can be of

critical importance to a film’s “power at the box office” and to the actor’s ability to become recognized as a box office

star. Montoro, 648 F.2d at 607.

194

Gilliam v. Am. Broad. Cos., 538 F.2d 14, 24–25 (2d Cir. 1976).

195

Despite this pre-BCIA case law, some study commenters questioned the effectiveness of the Lanham Act for

protecting authors’ moral rights even pre-Dastar. See, e.g., OTW Initial Comments at 12 (“At the very least, pre-Dastar

trademark law is a poor way to serve authors’ interests in attribution.”); cf. NWU-SFWA Joint Initial Comments at 8

(“[R]egardless of the Dastar decision, the Lanham Act neither protects nor provides effective remedies for violations of

authors’ moral rights.”).

196

Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).

U.S. Copyright Office Authors, Attribution, and Integrity

with “any goods or services.”

197

A number of different claims are cognizable under section 43(a),

including claims for infringement of an unregistered trademark, claims for false implications of

sponsorship or endorsement, and claims for “passing off” or “reverse passing off.”

198

Claims

arising from violations of the rights of attribution and integrity typically fall into the last category:

either a claim for “passing off,” whereby a plaintiff/author asserts that the defendant is

attributing to the plaintiff a work that either was not authored by the plaintiff or that has been

modified in a way to make it no longer the plaintiff’s work, thereby “passing off” the defendant’s

work as being that of the plaintiff; or a claim for “reverse passing off,” whereby a plaintiff/author

asserts that the defendant is representing himself as the source of the plaintiff’s work by

removing attribution to the plaintiff, thus passing off plaintiff’s goods as his own.

One of the seminal pre-BCIA “passing off” cases implicating authors’ moral rights (in that

instance, the right of integrity) was 1976’s Gilliam v. American Broadcasting Cos. In Gilliam, the

British comedy troupe Monty Python brought a passing off claim against the television network

ABC after ABC “substantially” edited certain Monty Python sketches without permission and

then broadcast them.

199

The edits omitted 27 percent of the original program and included

removing crucial elements of several skits, so that they became unintelligible.

200

The comedy

troupe members sued ABC and alleged that ABC had violated section 43(a) of the Lanham Act by

using their name in connection with a “mutilated” version of their work that did not accurately

represent their authorship.

201

The Second Circuit concluded “that the truncated version at times

omitted the climax of the skits to which appellants’ rare brand of humor was leading and at other

197

Section 43(a) states:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in

commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation

of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or

association of such person with another person, or as to the origin, sponsorship, or approval of his or

her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or

geographic origin of his or her or another person's goods, services, or commercial activities,

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by

such act.

15 U.S.C. § 1125(a).

198

2 ANNE GILSON LALONDE, GILSON ON TRADEMARKS § 7.02[5] (Matthew Bender 2018) (“GILSON ON TRADEMARKS”).

199

Gilliam, 538 F.2d at 24.

200

Gilliam, 538 F.2d at 25 (describing one of ABC’s edits).

201

Gilliam, 538 F.2d at 24.

U.S. Copyright Office Authors, Attribution, and Integrity

times deleted essential elements in the schematic development of a story line.”

202

Significantly,

the court stated that “the edited version broadcast by ABC impaired the integrity of appellants’

work and represented to the public as the product of appellants what was actually a mere

caricature of their talents.”

203

Following passage of the BCIA, several courts followed Gilliam,

permitting a right of action under the Lanham Act for instances where an author’s work was

mutilated, garbled, or mangled but their name remained attached to it.

204

b) The Supreme Court’s decision in Dastar

In 2003, the U.S. Supreme Court issued an opinion in Dastar that many have viewed as

having the effect of narrowing, if not eliminating, the availability of the Lanham Act as a proxy

for moral rights.

205

Dastar involved the sale and distribution by Dastar Corp. of edited videotapes

of a television series first created by an affiliate on behalf of Twentieth Century Fox. Twentieth

Century Fox asserted a “reverse passing off” claim against Dastar under section 43(a) of the

Lanham Act, based on Dastar’s failure to attribute the footage used in its videotapes.

Titled “Crusade in Europe” and based on a book by the same name, the series at issue was

produced on behalf of Twentieth Century Fox and aired by it in 1949.

206

Fox did not renew the

207

But in 1988,

Fox reacquired the television rights to the underlying book and licensed the exclusive rights to

distribute the “Crusade” video set to SFM Entertainment and New Line Home Video.

Subsequently, in 1995, Dastar Corp. purchased eight beta cam tapes of the original 1949

202

Gilliam, 538 F.2d at 25. As one court later put it, “[t]he edited version simply made no sense.” Choe v. Fordham Univ.

Sch. of Law, 920 F. Supp. 44, 49 (S.D.N.Y. 1995). See also Gilliam, 538 F.2d at 25 n.12 (“In one skit, an upper class English

family is engaged in a discussion of the tonal quality of certain words as ‘woody’ or ‘tinny.’ The father soon begins to

suggest certain words with sexual connotations as either ‘woody’ or ‘tinny,’ whereupon the mother fetches a bucket of

water and pours it over his head. The skit continues from this point. The ABC edit eliminates this middle sequence so

that the father is comfortably dressed at one moment and, in the next moment, is shown in a soaked condition without

any explanation for the change in his appearance.”).

203

Gilliam, 538 F.2d at 25 (emphasis added).

204

See, e.g., Choe, 920 F. Supp. at 47–49 (student brought a section 43(a) claim against law school journal for publishing

his comment with typographical and substantive errors); Playboy Enters., Inc. v. Dumas, 831 F. Supp. 295, 315–17

(S.D.N.Y. 1993) (artist brought a section 43(a) counterclaim against Playboy for publishing a collection of his works that

were altered and attributing them to the artist); Wojnarowicz v. Am. Family Ass’n, 745 F. Supp. 130, 141–42 (S.D.N.Y. 1990)

(artist brought a section 43(a) claim against a non-profit organization for publishing a pamphlet that incorporated his

attributed images for criticism purposes).

205

Dastar, 539 U.S. 23.

206

The book contained General Eisenhower’s written account of the European theatre of World War II, and was first

published by Doubleday. Doubleday granted the exclusive television adaptation and broadcast rights to an affiliate of

the plaintiff. Dastar, 539 U.S. at 25–26.

207

Dastar, 539 U.S. at 26.

U.S. Copyright Office Authors, Attribution, and Integrity

“Crusade” series, copied and edited that footage, and released it as a new video set entitled

“World War II Campaigns in Europe.” The “Campaigns in Europe” video set was a little more

than half the length of the original “Crusade” series and featured a new opening sequence, credit

page, and closing, as well as new chapter-title sequences and narrated chapter introductions,

among other revisions.

208

Dastar Corp. then manufactured and sold copies of the “Campaigns”

video set, with all markings identifying itself as the producer and distributor; the videos, sold at

major retailers and online for significantly less than the “Crusade” set, also made no reference to

the “Crusade” series.

209

Twentieth Century Fox, SFM Entertainment, and New Line Home Video sued Dastar

Corp. asserting, among other claims, reverse passing off in violation of section 43(a) of the

Lanham Act based on Dastar Corp.’s failure to identify and credit the creators of the original

“Crusade” television series as the origin of the footage in its “Campaigns” series. The U.S.

District Court for the Central District of California granted summary judgment for the plaintiffs,

noting that Dastar Corp. copied the entire television series, made only “minor changes,” and

packaged the edited product as its own.

210

In a short opinion, the Ninth Circuit affirmed,

concluding that Dastar Corp. committed “a ‘bodily appropriation’ of Fox’s series” by copying the

series and marketing the edited product without attribution.

211

The question before the Supreme Court was whether “the Lanham Act protect[s] creative

works from uncredited copying, even without a likelihood of consumer confusion.”

212

Section

43(a)(1)(A), which was at issue in Dastar, prohibits a “false designation of origin, false or

misleading description of fact, or false or misleading representation of fact, which . . . is likely to

cause confusion . . . as to the origin . . . of [the defendant’s] goods.”

213

In interpreting the

applicability of the Lanham Act, the Court focused on the statute’s use of the terms “origin” and

“goods.”

214

208

Id. at 26–27.

209

Id. at 27.

210

Twentieth Century Fox Film Corp. v. Dastar Corp., No. CV 98-7189, 2000 WL 35503105, at *11–12 (C.D. Cal. Jan. 4, 2000).

211

Twentieth Century Fox Film Corp. v. Entm’t Distrib., 34 Fed. App’x. 312, 314 (9th Cir. 2002) (quoting Cleary v. News Corp.,

30 F.3d 1255, 1261 (9th Cir. 1994)).

212

Brief for Petitioner at i, Dastar Corp. v. Twentieth Century Fox Film Corp., No. 02-428, 2003 WL 367729, at *I (Feb. 13,

2003). The Court also granted cert on a second, related question: “May a court applying the Lanham Act award twice

the defendant’s profits for purely deterrent purposes?” Id. The Court ultimately did not address this question, which it

said was mooted by its conclusion on the first question. See Dastar, 539 U.S. at 38.

213

Dastar, 539 U.S. at 31 (quoting 15 U.S.C. § 1125(a)(1)(A)).

214

See id. at 29–37.

U.S. Copyright Office Authors, Attribution, and Integrity

The Court on an 8–0 vote rejected “[r]eading ‘origin’ in § 43(a) to require attribution of

uncopyrighted materials.”

215

It began its analysis with the dictionary definitions of “origin” and

“goods,” which the Court interpreted as referring to “the producer of the tangible product sold in

the marketplace.”

216

The Court next discussed the purpose of section 43(a), which the Court

characterized as guarding consumers against deception and protecting a producer’s goodwill,

and concluded that a “consumer who buys a branded product does not automatically assume

that the brand-name company is the same entity that came up with the idea for the product, or

designed the product.”

217

In other words, the Court thought that consumers are not confused

when a manufacturer’s name appears on a product and that name differs from the name of the

creator of the underlying content, because consumers are only worried about who manufactured

the tangible product.

While the Court acknowledged the possibility that consumer interests might be different

for “a communicative product” such as a novel, for which “[t]he purchaser . . . is interested not

merely, if at all, in the identity of the producer of the physical tome (the publisher), but also, and

indeed primarily, in the identity of the creator of the story it conveys (the author),”

218

the Court

ultimately found that “[t]he right to copy, and to copy without attribution, once a copyright has

expired, like the right to make (an article whose patent has expired)—including the right to make

it in precisely the shape it carried when patented—passes to the public.”

219

The Court reasoned

that to hold otherwise would result in the creation of “a species of mutant copyright law that

limits the public’s ‘federal right to copy and to use’ expired copyrights.”

220

Further, citing the

Visual Artists Rights Act of 1990, the Court stated that Congress had previously added an

attribution right to copyright law “with much more specificity than the Lanham Act’s ambiguous

use of ‘origin.’”

221

In the end, the Court “conclude[d] that the phrase refers to the producer of the

tangible goods that are offered for sale, and not to the author of any idea, concept, or

communication embodied in those goods.”

222

c) Post-Dastar Case Law

The Court’s opinion in Dastar has been interpreted by many commenters as undermining

the continued viability of the Lanham Act as a vehicle for an author seeking to vindicate their

215

Id. at 35.

216

Id. at 31.

217

Id. at 32. It is worth noting that this conclusion was not based on consumer surveys or evidence from the record.

218

Id. at 33.

219

Id. at 33 (quoting Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 230 (1964)).

220

Id. at 34 (quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 165 (1989) (cleaned up).

221

Id. at 34.

222

Id. at 37.

U.S. Copyright Office Authors, Attribution, and Integrity

rights of attribution and integrity.

223

The exact extent to which such claims are precluded by

Dastar remains up for debate, however. Lower court opinions applying Dastar have fallen into

two primary camps: a broad reading that precludes most claims under the Lanham Act for

violation of the rights of attribution or integrity interests in expressive works,

224

and several more

narrow readings that limit Dastar more closely to its facts and leave open the possibility of certain

claims based on violation of these interests.

Most of the courts that read Dastar broadly have held that it forecloses claims “premised

on the false designation of the origin of ideas, concepts, or communications embodied in tangible

goods,”

225

rejecting claims for lack of attribution in connection with movies,

226

video footage,

227

223

See Artists Rights Society (“ARS”), Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice

of Inquiry at 3 (Mar. 27, 2017) (“ARS Initial Comments”) (“The ability of artists or estates to rely on Section 43(a) may be

limited as a result of the Supreme Court’s decision in Dastar.”); Authors Guild Initial Comments at 2 (stating that Dastar

is a main factor in “the result that our law no longer provides a full right of attribution for authors of books and other

literary works”); FMC Reply Comments at 3 (“[A]ny resemblance to moral rights protections from section 43(a) were

lost by Dastar.”); Kernochan Center Initial Comments at 3 (“Dastar has, accordingly, undermined much of the law under

section 43(a) on which the United States’ claimed right of attribution rested at the time of Berne adherence.”); SAG-

AFTRA Initial Comments at 7 (“We are concerned that the 2003 Supreme Court decision, Dastar v. Twentieth Century

Fox, will one day undermine our SAG-AFTRA members’ ability to use the Lanham Act to address attribution or

misattribution to intangible entertainment products.”). But see, Broadcast Music, Inc. (“BMI”), Reply Comments

Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 2 (May 15, 2017) (“BMI Reply

Comments”) (discussing composers objecting to political candidates’ use of songs, “the Lanham Act helps to fill gaps in

the United States’ compliance with Berne”); CCIA Initial Comments at 4–5 (explaining that Dastar has not affected the

moral rights paradigm in the United States); University of Michigan Library, Reply Comments Submitted in Response

to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 1 (May 15, 2017) (“[W]e remain unconvinced that the

patchwork of laws, which were viewed as sufficient when the United States acceded to Berne, has unraveled following

Dastar. The excessive focus on Dastar does a disservice to a patchwork that has always been far more extensive than the

Lanham Act.”). Some commentators see such preclusion as a good thing. See, e.g., CDT Reply Comments at 4 (“To the

extent that the Dastar decision has limited the legal avenues for pursuing attribution claims, it was correct to do so.”).

224

See, e.g., Kent v. Universal Studios, Inc., No. CV 08–2704, 2008 WL 11338293, at *10 (C.D. Cal. Aug. 15, 2008) (holding

that the term “origin” in section 43(a) “exclude[s] the identification of the authors of communicative works”); Atrium

Grp. de Ediciones y Publicaciones, S.L. v. Harry N. Abrams, Inc., 565 F. Supp. 2d 505, 512–13 (S.D.N.Y. 2008); Weidner v.

Carroll, No. 06-CV-782, 2007 WL 2893637, at *4 (S.D. Ill. Sept. 28, 2007).

225

Narrative Ark Entm’t v. Archie Comic Publ’ns, Inc., No. 16 CV 6109, 2017 WL 3917040, at *12 (S.D.N.Y. Sept. 5, 2017)

(finding Dastar preemption of Lanham Act claim based on defendants’ failure to attribute authorship to plaintiff of

stories, artwork, and characters first created by plaintiff under a freelance agreement for defendants); see also Gary

Friedrich Enters. v. Marvel Enters., 713 F. Supp. 2d 215, 234 (S.D.N.Y. 2009) (finding Dastar preemption of Lanham Act

claims because § 43(a) “does not . . . cover misrepresentation about the author of an idea, concept, or communication

embodied in . . . goods”).

226

See, e.g., Williams v. UMG Recordings, Inc., 281 F. Supp. 2d 1177, 1185 (C.D. Cal. 2003) (rejecting claims based on failure

to provide attribution for plaintiff’s contributions to motion picture, including narration, editing, and musical scoring).

227

See Fioranelli v. CBS Broad. Inc., 232 F. Supp. 3d 531, 539 (S.D.N.Y. 2017).

U.S. Copyright Office Authors, Attribution, and Integrity

web designs,

228

textbooks,

229

poetry collections,

230

and photographs,

231

to name a few. In adopting

a broader reading of Dastar, these courts have often focused on Justice Scalia’s expressed fear that

the availability of Lanham Act claims for mis- or non-attribution of expressive works might create

a form of “mutant copyright,”

232

and have sought to clearly police what they view as the

boundaries between trademark and copyright law.

233

A smaller minority of courts have extended

this reading of Dastar even further to prohibit any Lanham Act claim related to works that are

potentially covered by copyright, such as precluding claims even for misattribution of the

tangible goods embodying works of authorship

234

or for false representation of “affiliation”

between an author and a publisher of a novel.

235

In contrast, courts adhering to a narrower interpretation of Dastar have been less

concerned with maintaining a bright line between copyright and trademark law, and have been

willing to entertain some claims for mis- or non-attribution of expressive works under certain

theories. The courts that have allowed such Lanham Act claims to proceed have generally done

so on one of four grounds:

228

See Mays & Assocs., Inc. v. Euler, 370 F. Supp. 2d 362, 371 (D. Md. 2005).

229

See Zyla v. Wadsworth, 360 F.3d 243, 251–52 (1st Cir. 2004); Vogel v. Wo lters Kluwer Health, Inc., 630 F. Supp. 2d 585, 589–

92 (M.D.N.C. 2008).

230

See Silverstein v. Penguin Putnam, Inc., 522 F. Supp. 2d 579, 601–02 (S.D.N.Y. 2007).

231

See Agence Fr. Presse v. Morel, 769 F. Supp. 2d 295 (S.D.N.Y. 2011).

232

Dastar, 539 U.S. at 34.

233

See, e.g., Friedman v. Zimmer, No. CV 15-502, 2015 WL 6164787, at *4 (C.D. Cal. July 10, 2015) (“[G]iven the [Dastar]

Court’s concerns about creating overlap between the Lanham Act and other intellectual property regimes, it would

have made little sense for the Supreme Court to reject the Dastar plaintiff’s claims under 15 U.S.C. § 1125(a)(1)(A) but

permit the same sort of claim to be asserted under a different prong of the same statute.”); Morel, 769 F. Supp. 2d at 307

(“In Dastar, the Supreme Court admonished that section 43(a) of the Lanham Act—which governs trademarks—cannot

be invoked as an end run around the copyright laws or to add another layer of protection to copyright holders.”); Maule

v. Phila. Media Holdings, LLC, 710 F. Supp. 2d 511, 518 (E.D. Pa. 2008). Other courts have extended this concern to

preclude claims under the Lanham Act that might overlap with other intellectual property laws. See, e.g., Baden Sports,

Inc. v. Molten USA, Inc., 556 F.3d 1300, 1307 (Fed. Cir. 2009) (holding that Dastar also sought to prevent “overlap

between the Lanham and Patent Acts”); United Servs. Auto. Ass’n v. Mitek Sys., Inc., No. SA–12–CV–282, 2013 WL

781900, at *3–5 (W.D. Tex. Feb. 15, 2013) (following Baden Sports to extend Dastar to trade secrets); Tao of Sys. Integration,

Inc. v. Analytical Servs. & Materials, Inc., 299 F. Supp. 2d 565, 571–72 (E.D. Va. 2004) (extending Dastar to trade secrets).

234

See Weidner, 2007 WL 2893637, at *4.

235

Antidote Int'l Films, Inc. v. Bloomsbury Publ'g, PLC, 467 F. Supp. 2d 394, 398–99 (S.D.N.Y. 2006).

U.S. Copyright Office Authors, Attribution, and Integrity

(i) Dastar precludes only claims for non-attribution or “reverse passing off,” but

leaves available claims for misattribution or “passing off”;

236

(ii) Dastar precludes only claims under section 43(a)(1)(A),

237

but leaves open claims

under section 43(a)(1)(B), which prohibits “misrepresenting the nature,

characteristics, [or] qualities” of goods or services in advertising;

238

(iii) Unattributed copying of works that are themselves the goods, as opposed to works

embodied in separate, tangible goods, constitutes “repackaging” of the sort

cognizable under Dastar;

239

(iv) Dastar only applies to works that are in the public domain, and does not prohibit

claims under section 43(a) for either passing off or reverse passing off in

connection with works that are still under copyright protection.

240

Availability of claims for misattribution or passing off

As mentioned above, prior to the Supreme Court’s decision in Dastar, the Second Circuit

found that the act of making prejudicial, material alterations to a work could support a claim for

passing off under section 43(a) under the theory that “[t]o deform [plaintiff’s] work is to present

him to the public as the creator of a work not his own, and thus makes him subject to criticism for

236

Auscape Int’l v. Nat’l Geographic Soc’y, 409 F. Supp. 2d 235, 250–51 (S.D.N.Y. 2004) (citing Gilliam). Cf. Craigslist Inc. v.

3Taps Inc., 942 F. Supp. 2d 962, 978 (N.D. Cal. 2013) (“The Copyright Act provides no recourse for Craigslist to prevent

others from trading on Craigslist’s name and mark, and thus does not overlap with the present Lanham Act claim.”).

237

Prohibiting the use of a “name, . . . false designation of origin, false or misleading description of fact, or false or

misleading representation of fact” in connection with “goods, services, or commercial activities” in a manner that is

likely to cause confusion. 15 U.S.C. § 1125(a)(1).

238

See, e.g., Pearson Educ., Inc. v. Boundless Learning, Inc., 919 F. Supp. 2d 434, 438 (S.D.N.Y. 2013) (“Dastar explicitly left

open the possibility that some false authorship claims could be vindicated under the auspices of section 43(a)(1)(B)’s

prohibition on false advertising.”); Clauson v. Eslinger, 455 F. Supp. 2d 256, 261 (S.D.N.Y. 2006) (“The Dastar Court

explicitly left open the possibility that some false authorship claims could be vindicated under the auspices of this

section’s prohibition on false advertising.”); cf. Zyla, 360 F.3d at 252 n.8 (noting in dicta that “Dastar left open the

possibility that some false authorship claims could be vindicated under the auspices of § 43(a)(1)(B)’s prohibition on

false advertising”); Defined Space, Inc. v. Lakeshore E., LLC, 797 F. Supp. 2d 896, 901 (N.D. Ill. 2011) (agreeing with the

plaintiff’s interpretation that “Dastar explicitly left open a claim under § 43(a)(1)(B) under the Lanham Act”).

239

See, e.g., Defined Space, 797 F. Supp. 2d at 901 (permitting a section 43(a) claim brought by a photographer against the

defendants who failed to provide proper accreditation); Levine v. Landy, 832 F. Supp. 2d 176, 189, 191 (N.D.N.Y. 2011)

(permitting a section 43(a) claim brought by photographer whose photos were used by a publisher without attribution);

Cable v. Agence Fr. Presse, 728 F. Supp. 2d 977, 981 (N.D. Ill. 2010).

240

See, e.g., Defined Space, 797 F. Supp. 2d at 901; Do It Best Corp. v. Passport Software, Inc., No. 01 C 7674, 2004 WL

1660814, at *17–18 (N.D. Ill. July 23, 2004).

U.S. Copyright Office Authors, Attribution, and Integrity

work he has not done.”

241

Post-Dastar, at least two courts have reasoned that certain acts of

misattribution may still present cognizable claims under section 43(a). The Southern District of

New York has stated, albeit in dicta, that a claim for passing off under section 43(a) could proceed

when an “author’s name [is used] to suggest authorship or approval of a work substantially

modified without the author’s consent.”

242

Similarly, the Northern District of California found

that Dastar does not preclude claims for “regular ‘passing off,’” noting that such a claim “does not

raise the ‘perpetual patent and copyright’ concerns that the Supreme Court identified in Dastar”

and that, in that case, “[t]he Copyright Act provides no recourse for [plaintiff] to prevent others

from trading on [its] name and mark, and thus does not overlap with the present Lanham Act

claim.”

243

Scholars and commenters have likewise argued that misattribution claims such as those

at issue in Gilliam should survive Dastar.

244

Only one court has directly considered Dastar’s application to a passing off claim

premised on material alterations to a plaintiff’s work.

245

In Dankovich v. Keller, the pro se plaintiff

asserted a claim for passing off under section 43(a) based on allegations that defendants

published his article with an unapproved headline and with additional unapproved changes to

the substance of the article, which resulted in “[d]efendants falsely misreprent[ing] that [plaintiff]

241

Gilliam, 538 F.2d at 24 (citing Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and

Creators, 53 HARV. L. REV. 554, 569 (1940)).

242

Auscape, 409 F. Supp. 2d at 251 (citing Gilliam). See also Cyber Websmith, Inc. v. Am. Dental Ass’n, No. 09-CV-6198, 2010

WL 3075726, at *3 (N.D. Ill. Aug. 4, 2010) (stating, in dicta, that passing off claims avoid Dastar preemption).

243

Craigslist, 942 F. Supp. 2d at 978.

244

See, e.g., Justin Hughes, American Moral Rights and Fixing the Dastar “Gap,” 2007 UTAH L. REV. 659, 695 (2007) (arguing

that reading Dastar to preclude misattribution claims would dramatically undermine the Lanham Act’s ability to protect

consumers against false facts, such as the author “market[ing] my new high-energy drink as ‘formulated by the people

at Coca-Cola’ or my new line of clothing as ‘designed by Karl Lagerfeld’”); International Trademark Association

(“INTA”), Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 4 (Mar. 27,

2017) (“INTA Initial Comments”) (arguing that “removing misattribution from the scope of trademark law can only

harm consumers and producers and frustrate the goals of trademark law”); SAG-AFTRA Initial Comments at 7

(“Incorrectly billing a film is analogous to but worse than a toy manufacturer selling an unauthorized action figure,

because inaccurate billing decreases a performer’s chances of finding gainful employment. It also potentially calls his

or her integrity into question if she or he has claimed to have appeared in a work in which they have not been correctly

billed. In addition, such inaccurate billing misleads a consumer into paying for a movie that the performer had no

creative or professional involvement in.”). Cf. A.V.E.L.A., Inc. v. Estate of Marilyn Monroe, LLC, No. 12 Civ. 4828, 2019 WL

367842. at *17–9 (S.D.N.Y. Jan. 30, 2019) (allowing a claim for false endorsement under section 43(a) to proceed based on

the licensing and distribution of products bearing the name and likeness of a dead celebrity).

245

Separately, the Central District of California has called into question the continued viability of Gilliam, stating in dicta

that “Dastar . . . effectively overrules Gilliam.” Kent, 2008 WL 11338293, at *4. It is worth noting, however, that the

claims at issue in Kent were for reverse passing off based on non-attribution, similar to the claims directly at issue in

Dastar, rather than claims for passing off or false attribution of the type at issue in Gilliam.

U.S. Copyright Office Authors, Attribution, and Integrity

authored the piece he now claims he ‘did not write.’”

246

The court, citing several post-Dastar

reverse passing off cases, rejected the Lanham Act claim, stating that plaintiff’s claim “is exactly

the type of false authorship claim barred by Dastar, regardless of how [plaintiff] attempts to

characterize it.”

247

The Office was unable to locate any cases where a court rejected a claim under

section 43(a) based on defendant’s attribution of his own work to the plaintiff.

Availability of claims under section 43(a)(1)(B)

Another theory that has been employed by courts to limit the scope of Dastar preemption

is that the Supreme Court’s holding applies only to claims under section 43(a)(1)(A) of the

Lanham Act, leaving available claims for non-attribution under section 43(a)(1)(B). In finding the

claims before it to be preempted by the Copyright Act, the Dastar Court noted that “[i]f,

moreover, the producer of a video that substantially copied [plaintiffs’ series] were, in advertising

or promotion, to give purchasers the impression that the video was quite different from that

series, then one or more [plaintiffs] might have a cause of action . . . for misrepresentation

under . . . § 43(a)(1)(B).”

248

Several lower courts have seized upon this language to hold that

“Dastar explicitly left open the possibility that some false authorship claims could be vindicated

under the auspices of section 43(a)(1)(B)’s prohibition on false advertising.”

249

In reaching such a

conclusion, the Southern District of New York noted that the Dastar court “grounded its holding

in what it ruled was the ‘natural understanding’ of section 43(a)(1)(A)’s phrase ‘origin of goods,’”

but that “Congress did not incorporate any such reference into section 43(a)(1)(B).”

250

Other courts have rejected this line of reasoning. The Federal Circuit found that similar

reliance on the Dastar dicta quoted above was misplaced, noting that “[w]hile the dictum in

Dastar might suggest that the Supreme Court left open the possibility of a claim arising from a

misrepresentation concerning the qualities of certain goods, it does not necessarily suggest that

claims based on false designation of authorship are actionable under Section 43(a)(1)(B),”

expressing the concern that allowing such claims “could create overlap” between the Lanham Act

and other intellectual property laws.

251

The Sixth Circuit similarly rejected claims under section

43(a)(1)(B), stating that “a misrepresentation about the source of the ideas embodied in a tangible

object (such as misrepresentation about the author of a book or the designer of a widget) is not a

mischaracterization about the nature, characteristics, or qualities of the object,” and that “a

misrepresentation is actionable under § 43(a)(1)(B) only if it misrepresents the ‘characteristics of

246

Dankovich v. Keller, No. 16-13395, 2017 WL 5571354 (E.D. Mich. July 27, 2017).

247

Id. at *8.

248

Dastar, 539 U.S. at 38.

249

Pearson, 919 F. Supp. 2d at 438. See also Clauso, 455 F. Supp. 2d at 262 (stating that a “film’s credits and promotional

materials wrongly credit defendant as being producer” state a claim under section 43(a)(1)(B)).

250

Pearson, 919 F. Supp. 2d 438.

251

Baden Sports, 556 F.3d at 1307.

U.S. Copyright Office Authors, Attribution, and Integrity

the good itself.’”

252

The Southern District of New York likewise found that authorship was not a

characteristic or quality of a work, because to find otherwise would result in allowing under

section 43(a)(1)(B) “the very claim Dastar rejected under § 43(a)(1)(A).”

253

A number of courts in the Ninth Circuit have similarly read into the Ninth Circuit’s

opinion in Sybersound Records, Inc. v. UAV Corp.

254

a blanket prohibition against claims based on

false designation of authorship under section 43(a)(1)(B).

255

In Sybersound, the Ninth Circuit

rejected a claim under section 43(a)(1)(B) premised on allegations that defendant misrepresented

its pirated karaoke recordings as being licensed by the copyright owner, which in turn put

plaintiffs, who licensed (and paid royalties for) the recordings, at a competitive disadvantage. In

finding that such misrepresentations were not actionable, the Court stated that “the licensing

status of each work” was not part of the “nature, characteristics, or qualities of the karaoke

products.”

256

Complicating this analysis, however, is the fact that the Sybersound court stated that

“the nature, characteristics, and qualities of karaoke recordings under the Lanham Act are more

properly construed to mean characteristics of the good itself, such as the original song and artist of

252

Kehoe Component Sales, Inc. v. Best Lighting Prods., Inc., 796 F.3d 576, 590 (6th Cir. 2015) (rejecting claims under section

43(a)(1)(B) based on counterclaim defendant’s advertising of products identical to products it produced on behalf of

counterclaim plaintiff, without attribution to counterclaim plaintiff for originating the design). It is worth noting that

neither Kehoe nor Baden Sports involved copyrighted or expressive works. Baden Sports involved a false advertising

claim based on defendant’s marketing of its product as “proprietary,” “exclusive,” and “innovative,” when plaintiff

alleged that defendant copied features of plaintiff’s product, infringing a utility patent that plaintiff had obtained for

those features. Baden Sports, 556 F.3d at 1303. Similarly, in Kehoe a seller brought various claims, including a false

advertising claim, against its former supplier after the latter used molds and tooling designed for manufacture of the

seller’s products to create identical lighting products that the supplier then marketed directly to the seller’s customers.

Kehoe, 796 F.3d at 580.

253

Antidote Int’l Films, 467 F. Supp. 2d at 399–400; see also Morel, 769 F. Supp. 2d at 308 (citing Antidote); LaPine v. Seinfeld,

No. 08 Civ. 128, 2009 WL 2902584, at *15 (S.D.N.Y. Sept. 10, 2009) (same); Gurvey v. Cowan, Liebowitz & Latman, PC, No.

06 Civ. 1202, 2009 WL 1117278, at *4 (S.D.N.Y. Apr. 24, 2009) (“A failure to attribute the authorship of an idea simply

does not amount to the misrepresentation of the ‘nature, characteristics, qualities, or geographic origin of . . . goods,

services, or commercial activities’ as required under section 43(a) of the Lanham Act.”), rev’d in part on other grounds, 462

Fed. App’x. 26 (2d Cir. 2012); Thomas Publ’g Co., LLC v. Tech. Evaluation Centers, Inc., No. 06 Civ. 14212, 2007 WL 2193964,

at *3 (S.D.N.Y. July 27, 2007).

254

517 F.3d 1137 (9th Cir. 2008).

255

See, e.g., Friedman, 2015 WL 6164787, at *4 (citing Sybersound for the proposition that a claim of false designation of

authorship is not viable under section 43(a)(1)(B) under the Lanham Act); A.H. Lundberg Assocs., Inc. v. TSI, Inc., No.

C14-1160, 2014 WL 5365514, at *4 (W.D. Wash. Oct. 21, 2014) (citing Sybersound for the proposition that “claims of false

designations of authorship as false advertisement are not actionable under § 1125(a)(1)(B) in the Ninth Circuit”); cf.

Baden Sports, 556 F.3d at 1307 (“Following Sybersound’s reasoning, we conclude that authorship, like licensing status, is

not a nature, characteristic, or quality, as those terms are used in Section 43(a)(1)(B) of the Lanham Act.”).

256

Sybersound, 517 F.3d at 1144.

U.S. Copyright Office Authors, Attribution, and Integrity

the karaoke recording.”

257

This statement seems to recognize that the identity of the artist can be a

material characteristic of the good, and thus misattribution of the artist could support a claim

under section 43(a)(1)(B).

258

Availability of claims for repackaging of works

Some courts have read Justice Scalia’s discussion of the meaning of “origin” in section

43(a)(1)(A) as being limited to situations where the copyrighted works at issue are embodied in

tangible goods (such as an audiovisual work embodied in a videotape or a novel embodied in a

physical book), and thus inapplicable to situations where the work and the goods are merged

(such as a digital photograph).

259

In reaching such a conclusion, these courts often analogize to

the Dastar court’s hypothetical regarding the repackaging of goods, wherein the Court stated that

a section 43(a) claim “would undoubtedly be sustained if Dastar [Corp.] had bought some of New

Line's Crusade videotapes and merely repackaged them as its own.”

260

In several cases finding no

Dastar preemption, the courts found it notable that the defendant copied the plaintiff’s expressive

work without modification or addition.

261

This approach is exemplified by the Northern District of Illinois’ opinion in Cable v. Agence

France Presse.

262

In that case, the plaintiff photographer sued the defendant news agency alleging

violations of the Copyright Act and the Lanham Act for displaying, disseminating, and

distributing copies of his photos without permission or attribution. Defendant argued that the

Lanham Act claim was precluded by Dastar because the photographs were not a tangible good,

but rather embodied the photographer’s communication. The court disagreed, and held that

plaintiff’s claim—“that AFP took the plaintiff’s photos and repackaged them as their own without

revision”—was permitted by Dastar.

263

The Northern District of New York used similar reasoning

257

Sybersound, 517 F.3d at 1144 (emphasis added).

258

But see Friedman, 2015 WL 6164787, at *4 (rejecting this reading of Sybersound).

259

See, e.g., Defined Space, 797 F. Supp. 2d at 901 (holding that facts alleging that a defendant took the plaintiff’s

“photographs and passed them off as their own photographs without revision or proper accreditation . . . cleanly fit

within the exception enunciated by Dastar”); Victor Stanley, Inc. v. Creative Pipe, Inc., No. 06-2662, 2011 WL 4596043, at

*11–12 (D. Md. Sept. 30, 2011); Gen. Sci. Corp. v. SheerVision, Inc., No. 10-cv-13582, 2011 WL 3880489, at *3 (E.D. Mich.

Sept. 2, 2011); Cable, 728 F. Supp. 2d at 981; Cvent, Inc. v. Eventbrite, Inc., 739 F. Supp. 2d 927, 936 (E.D. Va. 2010); Michael

Grecco Photography, Inc. v. Everett Collection, Inc., 589 F. Supp. 2d 375, 387 (S.D.N.Y. 2008), vacated in part on other grounds,

No. 07 Civ. 8171, 2009 WL 969928 (S.D.N.Y. Apr. 7, 2009).

260

Dastar, 539 U.S. at 31.

261

See, e.g., Cisco Tech., Inc. v. Certification Trendz, Ltd., 177 F. Supp. 3d. 732, 737–38 (D. Conn. 2016); Defined Space, 797 F.

Supp. 2d at 901; Do It Best, 2004 WL 1660814, at *17–18. Cf. Flaherty v. Filardi, No. 03 Civ. 2167, 2009 WL 749570, at *9

(S.D.N.Y. Mar. 20, 2009) (stating in dicta that had the defendant “merely changed the cover page of the script to list

himself as author and provide a new title, Plaintiff might have had a Lanham Act claim”).

262

Cable, 728 F. Supp. 2d 977.

263

Cable, 728 F. Supp. 2d at 981.

U.S. Copyright Office Authors, Attribution, and Integrity

in Levine v. Landy.

264

Distinguishing an earlier Southern District of New York case that found

Dastar preemption of a claim for failure to identify the plaintiff as the creator of a comic book

character, the Levine court noted that the comic book character at issue in the previous case was

“embodied” in a film and merchandise, while in the case before it, plaintiff “alleges defendants

misrepresented the origin of the photographs themselves; not the ideas, concepts, or

communications embodied in the photographs.”

265

The District of Connecticut likewise found

that a claim under section 43(a) might be available were the defendant to sell works consisting

solely of questions and answers from plaintiff’s certification exams, but that “[i]f . . . it can be

shown at summary judgement that Defendants have added content to these exams in the form of

answer explanations, Plaintiff’s false designation of origin claim would likely fail under Dastar

and its progeny.”

266

In contrast, other courts have rejected such a distinction, even on similar facts.

267

The

Southern District of New York, evaluating claims that a news agency and its licensees distributed

and reproduced plaintiff’s photographs without authorization and with improper attribution to a

third party, found that the photographs were “communicative products” as described by the

Dastar Court, and thus “false designation of their authorship is not cognizable under section

43(a)(1)(A).”

268

Similarly, the Southern District of Illinois rejected the idea that the defendants

merely repackaged the plaintiffs’ goods despite “[t]he fact that the ‘product’ (i.e., the manuscript)

in this case is nothing more tangible than an idea or communication that it embodies,” and

accordingly found that plaintiffs’ Lanham Act claim for false designation of origin was precluded

under Dastar.

269

Public Domain

At least one court has nominally distinguished Dastar by noting that “Dastar rested

heavily on the fact that the materials at issue were in the public domain,” finding that Lanham

Act claims relating to works that are not in the public domain do not pose “the fear of a perpetual

270

The majority of courts have

264

Levine, 832 F. Supp. 2d 176.

265

Id. at 191 (emphasis added).

266

Certification Trendz, 177 F. Supp. 3d. at 737–38.

267

See, e.g., Tech. Evaluation Ctrs., 2007 WL 2193964, at *2–3 (holding that Dastar’s prohibition on protection for “the

author of any idea, concept or communication embodied in those goods” extends to services embodied in non-tangible

goods like websites); Morel, 769 F. Supp. 2d at 307 (rejecting claim for reverse passing off based on reproduction of

photograph); cf. Fioranelli, 232 F. Supp. 3d at 541 (finding that footage incorporated into defendants’ media products

was not a tangible good, and that failure to credit plaintiff as the author of the footage did not support a claim under

section 43(a)(1)(A)).

268

Morel, 769 F. Supp. 2d at 307.

269

Weidner, 2007 WL 2893637, at *4.

270

Defined Space, 797 F. Supp. 2d at 901.

U.S. Copyright Office Authors, Attribution, and Integrity

rejected limiting Dastar to works in the public domain, however.

271

For example, the Southern

District of New York noted that “the Supreme Court did not articulate any distinction between

copyrighted and uncopyrighted material,” but rather “the Court was clearly concerned that

applying Lanham Act protection to otherwise unprotected material would result in an extension

of copyright law through the back door of the Lanham Act,” and thus would have “declined to

extend Lanham Act protection to the [video], whether it was under copyright or not.”

272

The

Middle District of Tennessee likewise rejected this distinction, stating that the result of such an

interpretation would be that “‘origin of goods’ in § 1125(a)(1) [would] mean one thing when

addressing copyrighted works, and mean something quite different when addressing works

whose copyrights had expired.”

273

Despite the weight of authority rejecting such a limitation of Dastar to works in the public

domain, some scholars and commentators have expressed support for this theory as a basis for a

narrow reading of Dastar.

274

As one copyright scholar stated at the Office’s moral rights

symposium, Dastar “was mostly about . . . content no longer protected by copyright.”

275

271

See, e.g., Narrative Ark, 2017 WL 3917040, at *5; Fioranelli, 232 F. Supp. 3d at 539; Personal Keepsakes, Inc. v.

Personalizationmall.com, Inc., No. 11 C 5177, 2012 WL 414803, at *4 (N.D. Ill. Feb. 8, 2012); Kinney v. Oppenheim, No. CV-

10-6287, 2011 WL 13217573, at *10 (C.D. Cal. Mar. 3, 2011); Contractual Obligation Prods., LLC v. AMC Networks, Inc., 546

F. Supp. 2d 120, 130 (S.D.N.Y. 2008); Vogel, 630 F. Supp. 2d at 591; Brainard v. Vassar, 561 F. Supp. 2d 922, 934 (M.D. Tenn.

2008); A Slice of Pie Prods., LLC v. Wayans Bros. Entm’t, 392 F. Supp. 2d 297, 313 (D. Conn. 2005); UMG, 281 F. Supp. 2d at

1185.

272

Atrium Grp., 565 F. Supp. 2d at 512. In fact, the Southern District of New York has found in at least one instance that

an attempt to distinguish Dastar on this grounds in order to pursue a Lanham Act claim for failure to credit the plaintiff

as the producer rises to the level of bad faith required to support an award of attorneys’ fees to the defendant. See

Contractual Obligation, 546 F. Supp. 2d at 130–31.

273

Brainard, 561 F. Supp. 2d at 934.

274

See, e.g., Hughes, 2007 UTAH L. REV. at 697; AAP Initial Comments at 6 (“the decision is arguably limited to works in

the public domain.”); Authors Alliance Initial Comments at 7–8 (”The Dastar decision articulated a strong U.S.

commitment to a robust public domain and the public’s right to freely use works that have entered into it. Attempts by

those who would interfere with the public domain by attaching non-economic author rights to public domain works

should be rejected.”). Cf. Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law, 41 HOUS.

L. REV. 263, 269 (2004) (“The Court placed great emphasis on the unconstrained ability of the public to copy and

distribute public domain works. Requiring accurate attribution of creative origin, according to the Court, improperly

impedes the public's entitlement. Where, by contrast, the work is still subject to the author's exclusive right to make the

work available in copies or by transmission, the requirements as to how the copies or transmissions are labeled take

nothing from the public.”).

275

Session 2: The U.S. Perspective, in Symposium Transcript, Authors, Attribution, and Integrity: Examining Moral Rights in

the United States, 8 GEO. MASON J. INT’L COM. L. 26, 33 (2016) (hereinafter “Session 2, Symposium Transcript”) (remarks of

Peter K. Yu, Professor of Law, Texas A&M University School of Law).

U.S. Copyright Office Authors, Attribution, and Integrity

d) The Implication of Dastar for the Moral Rights Patchwork

It is indisputable that the Supreme Court’s holding in Dastar has narrowed the

applicability of the Lanham Act to claims for violations of the rights of attribution and integrity,

and thus has resulted in the fraying of one square of the moral rights patchwork as originally

envisioned by Congress. It would nevertheless be inappropriate to write off the Lanham Act

entirely. Based on the Office’s review of lower court decisions interpreting Dastar, the Office

believes that, when Dastar is properly interpreted, the Lanham Act remains a viable square of the

moral rights patchwork.

276

Though limited in its availability―as individual squares in the

patchwork tend to be―the Lanham Act provides a vehicle for authors to protect both their

attribution and integrity interests under certain facts. The question that must be answered,

however, is what types of section 43(a) claims remain, and what level of protection do such

surviving claims provide for authors who have seen their work mis- or non-attributed, or

distorted in a manner that they find prejudicial?

The Office acknowledges that the majority of courts considering claims under section

43(a) arising from either mis- or non-attribution of creative works or prejudicial distortions of

those works have rejected such claims post-Dastar. It does not follow, however, that all potential

claims under section 43(a) for violations of the rights of attribution or integrity are foreclosed.

Further, while a small minority of such courts have stretched Dastar’s expressed concern

regarding the creation of “a species of mutant copyright law that limits the public’s federal right

to copy and to use expired copyrights’’

277

to preclude any claims under section 43(a) related to

works potentially covered by copyright, such a result does not appear to be consistent with either

the purpose of the Lanham Act or the wording of the Dastar opinion itself.

278

As the Dastar Court noted, the Lanham Act is at its heart a consumer protection statute.

279

For it to fulfill this purpose, courts must acknowledge that, at least with respect to certain

products, a consumer’s purchasing decision is likely to be influenced “not merely, if at all, [by]

the identity of the producer of the physical tome (the publisher), but also, and indeed primarily,

[by] the identity of the creator of the story it conveys (the author).”

280

276

To the extent that state trademark statutes and common law are consistent with the Lanham Act, most states have

found that analysis of the state principles are to be interpreted under the same analysis as the federal law. See 1

MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 22:1.50 (5th ed. 2017) (“MCCARTHY ON TRADEMARKS”); see also

Grupo Gigante SA De CV v. Dallo & Co., Inc., 391 F.3d 1008, 1100 (9th Cir. 2004); Donchez v. Coors Brewing Co., 392 F.3d

1211, 1219 (10th Cir. 2004); Rolls-Royce Motors Ltd. v. A & A Fiberglass, Inc., 428 F. Supp. 689, 694 (N.D. Ga. 1976).

277

Dastar, 539 U.S. at 34 (cleaned up).

278

See supra discussion on pages 47–54, and cases cited therein.

279

Dastar, 539 U.S. at 32 (“Section 43(a) of the Lanham Act prohibits actions like trademark infringement that deceive

consumers and impair a producer's goodwill.”).

280

Dastar, 539 U.S. at 33.

U.S. Copyright Office Authors, Attribution, and Integrity

Nor has there ever been a bright line separating copyright and trademark protection in all

instances,

281

and a reading of Dastar that requires such a result would upend decades of copyright

and trademark jurisprudence. The language of the Dastar opinion itself recognized that a

cognizable section 43(a) claim may still exist under certain circumstances with respect to works

covered by copyright, such as if a defendant “substantially copied” a plaintiff’s work and “in

advertising or promotion, [gives] purchasers the impression that [defendant’s product] was quite

different from” the plaintiff’s product,

282

or if a defendant purchases plaintiff’s work “and merely

repackage[s it] as its own.”

283

Still, a full reckoning with the consequence of Dastar for the moral

rights patchwork has to recognize and take into consideration the Court’s concerns, as expressed

in Dastar and other cases, regarding the proper scope of any overlap between intellectual

property rights regimes.

284

The Office believes that both the wording of and the public policy behind the Lanham Act

counsel in favor of permitting claims under section 43(a) to proceed for certain violations of the

attribution and integrity interests. While the Office perceives at least four different judicial

theories under which courts have allowed such claims to move forward post-Dastar,

285

the Office

finds some of these theories to be better reasoned than others.

The Office finds persuasive the argument, as articulated by the Northern District of

California

286

and the Southern District of New York,

287

that instances of passing off, such as

through misattribution of a work to an author or the prejudicial distortion of the content of the

author’s work, are rightly the subject of a claim under section 43(a).

288

To date, no court has

articulated an argument that the Office finds persuasive for why such claims should be

considered preempted under Dastar.

289

Such cases do not raise the specter of “perpetual

281

Indeed, as courts have long recognized, “[d]ual protection under copyright and trademark laws is particularly

appropriate for graphic representations of characters.” Frederick Warne & Co., Inc. v. Book Sales Inc., 481 F. Supp. 1191,

1196 (S.D.N.Y. 1979). See also Walt Disney Prods. v. Air Pirates, 581 F.2d 751 (9th Cir. 1978); Patten v. Superior Talking

Pictures, 8 F. Supp. 196 (S.D.N.Y. 1934).

282

Dastar, 539 U.S. at 38.

283

Dastar, 539 U.S. at 31.

284

Dastar, 539 U.S. at 34 (“[In] construing the Lanham Act, we have been ‘careful to caution against misuse or over-

extension’ of trademark and related protections into areas traditionally occupied by patent or copyright.”) (quoting

TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 29 (2001)).

285

See supra notes 236–275 and accompanying discussion.

286

See Craigslist, 942 F. Supp. 2d 962.

287

See Auscape, 409 F. Supp. 2d 235.

288

It remains an open question as to whether such claims are properly brought under section 43(a)(1)(A) or 43(a)(1)(B).

289

Looking at the legislative history of section 43(a), particularly as it was revised by the Trademark Law Revision Act

of 1988, and within the context of the closely related BCIA and VARA statutes, one scholar has argued that “Dastar’s

conclusion may be precisely the opposite of what Congress intended.” Mary LaFrance, When You Wish upon Dastar:

U.S. Copyright Office Authors, Attribution, and Integrity

without misattributing the resulting work to the original author. Nor is it clear that the

reputational harm that comes from having her or his name associated with a work produced by a

third party.

290

Allowing such claims to move forward would also further the Lanham Act’s

purpose of preventing consumer confusion, so that consumers do not purchase the resulting

work under the false impression that it represents the output of the author. While this approach

does not provide the bright-line separation between copyright and trademark law that some

courts may wish, it is in keeping with the historical development of copyright and trademark

jurisprudence, where such a bright line has long been notably absent.

The Office likewise finds persuasive the reasoning employed by those lower courts that

have found Dastar to leave open the possibility of asserting claims for mis- or non-attribution in

advertising under section 43(a)(1)(B). As several lower courts, including the First Circuit,

291

have

noted, the Dastar opinion explicitly leaves open the possibility of claims under section 43(a)(1)(B)

in certain circumstances.

292

This conclusion is supported by the text of the Lanham Act itself. As noted by the

Southern District of New York, the Dastar holding was premised chiefly on a textual reading of

the term “origin of goods” in section 43(a)(1)(A).

293

In contrast, the ordinary meaning of the terms

“nature,”

294

“characteristics,”

295

and “qualities”

296

are far broader than the term “origin.” Even

giving credence to Justice Scalia’s intuition that the “entity that came up with the idea for the

Creative Provenance and the Lanham Act, 23 CARDOZO ARTS & ENT. L.J. 197, 219 (2005). Rather, LaFrance argues, the

legislative history indicates that if Congress wanted section 43(a) to protect any types of goods against reverse passing

off, it was intangible, expressive works. Id. at 219–33. “This history received no attention whatsoever in the Dastar

opinion.” Id. at 201.

290

Admittedly, the Copyright Act may provide a vehicle for an author to challenge prejudicial distortions of her or his

work, provided that such distortions both result in the creation of a derivative work and are not excused by fair use.

See 17 U.S.C. § 106(2).

291

See Zyla, 360 F.3d at 252 n.8 (noting in dicta that “Dastar left open the possibility that some false authorship claims

could be vindicated under the auspices of § 43(a)(1)(B)’s prohibition on false advertising”).

292

See Dastar, 539 U.S. at 38.

293

See Pearson, 919 F. Supp. 2d at 438.

294

Defined as “the inherent character or basic constitution of a person or thing: essence.” Nature, WEBSTER’S NINTH

NEW COLLEGIATE DICTIONARY 789 (1987).

295

Defined as a “distinguishing trait, quality, or property.” Characteristics, WEBSTER’S NINTH NEW COLLEGIATE

DICTIONARY 227 (1987).

296

Defined as a “peculiar and essential character: nature” or “an inherent feature: property.” Qualities, WEBSTER’S

NINTH NEW COLLEGIATE DICTIONARY 963 (1987).

U.S. Copyright Office Authors, Attribution, and Integrity

product” is “typically of no consequence to purchasers,”

297

it may be that a not insignificant

number of customers would find the actual author of a book, song, or movie to be a nature,

characteristic, or quality of the goods that is relevant to their purchase decision.

298

Allowing a

company to distribute a video of a 10-year-old child’s scene-by-scene illustrations of Hamlet while

advertising it as the Kenneth Branagh motion picture version, merely because the advertisement

relates to authorship of the content rather than the manufacturer of the DVD, is a result that

would appear to be in conflict with both the literal wording of and the purpose behind section

43(a)(1)(B) of the Lanham Act. While such an approach—as with allowing claims for

misattribution or prejudicial distortion of a work—does not neatly separate copyright and

trademark protections, a court’s policy preference for a bright line demarcation should not

displace clear statutory language.

299

Although three post-Dastar Circuit Court decisions have been cited by lower courts as

precluding claims for mis- or non-attribution of expressive works under section 43(a)(1)(B), each

of these cases is readily distinguishable. Both the Federal Circuit’s decision in Baden Sports

300

and

the Sixth Circuit’s decision in Kehoe

301

address claims for non-attribution of the concept behind

physical products, as opposed to non- or misattribution of the content of communicative

products. Such claims are more similar to the Dastar Court’s cola hypothetical,

302

and the identity

of the originator of the concept is less likely to be considered by consumers to be relevant aspects

of the nature, characteristics, or quality of the goods. Likewise, the Ninth Circuit’s decision in

Sybersound addressed a claim under section 43(a)(1)(B) related to purportedly false assertions that

the karaoke products at issue were licensed, as opposed to infringing.

303

A representation that the

products were licensed is not a representation regarding the nature, characteristic, or quality of

297

Dastar, 539 U.S. at 32–33.

298

Of course, the Office’s intuition regarding the relevance of such information to consumer purchasing decisions

would properly be the subject of a consumer survey, as are other topics of relevance in Lanham Act litigations.

299

See Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176, 220–21 (1980) (“Since our present task is one of statutory

construction, questions of public policy cannot be determinative of the outcome unless specific policy choices fairly can

be attributed to Congress itself.”).

300

Baden Sports, 556 F.3d 1300.

301

Kehoe, 796 F.3d 576.

302

“[T]he brand-loyal consumer who prefers the drink that the Coca-Cola Company or PepsiCo sells, while he believes

that that company produced (or at least stands behind the production of) that product, surely does not necessarily

believe that that company was the ‘origin’ of the drink in the sense that it was the very first to devise the formula.

The consumer who buys a branded product does not automatically assume that the brand-name company is the

same entity that came up with the idea for the product, or designed the product—and typically does not care

whether it is.”

Dastar, 539 U.S. at 32.

303

See Sybersound, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008).

U.S. Copyright Office Authors, Attribution, and Integrity

the goods themselves, however, but instead is a representation regarding the economic

arrangements related to the goods.

304

The Office similarly believes that a strong argument can be made for allowing claims

under section 43(a) for certain instances of unattributed copying of communicative works that are

not otherwise embodied in tangible goods. The Office sees no textual support in the Lanham Act

for a reading of “origin of goods” that allows a defendant to obtain an electronic copy of an Ansel

Adams photograph and resell it as its own, while prohibiting the same defendant from

purchasing a videotape and repackaging it as his own. Treating the author of a communicative

work that is not otherwise embedded in tangible goods as the “origin” of those goods would thus

give meaning to the term “origin” in section 43(a) with respect to such goods.

305

It also serves the

consumer-protection purposes of the Lanham Act since, as Justice Scalia acknowledged, the

purchaser of a communicative product is likely to have a greater interest in the origin of the

content of such communicative product than the origin of a design for a widget.

306

For much the same reason, however, the Office is not persuaded by the arguments made

by some commentators and at least one court that the copyright status of a work provides a

meaningful basis of distinction when determining whether a claim for non-attribution can go

forward under section 43(a) after Dastar. While such a reading may address the public policy

concern regarding creation of a “mutant copyright” that was articulated by the Dastar Court, the

Office does not see any textual support in the Lanham Act for such a finding. The nature of the

goods, and thus the meaning of the term “origin” as a modifier of the goods, simply does not

magically change at the point a work passes from within the copyright term into the public

domain.

e) Potential Lanham Act Changes

While the Office finds persuasive certain courts that more narrowly interpret the Supreme

Court’s holding in Dastar to allow certain claims for violations of integrity and attribution

interests to proceed under section 43(a), case law on this issue will likely continue to develop after

issuance of this Report. Should Congress determine at any point that these remaining section

43(a) protections are insufficient to vindicate either, on the one hand, authors’ legitimate interests

in protecting their attribution and integrity interests, or, on the other hand, consumers’ legitimate

interest in knowing the authorship of the cultural products they consume, Congress may consider

adopting an amendment to section 43(a) that would expand the unfair competition protections to

304

The Sybersound court itself noted such a distinction, stating, “the nature, characteristics, and qualities of karaoke

recordings under the Lanham Act are more properly construed to mean characteristics of the good itself, such as the

original song and artist of the karaoke recording.” Sybersound, 517 F.3d at 1144.

305

To the extent that courts have read Dastar “to suggest that electronic products are not covered by the Lanham Act,”

such an interpretation does not seem to find any textual support in the actual language of the Lanham Act. Cvent, 739

F. Supp. 2d at 936.

306

Dastar, 539 U.S. at 33.

U.S. Copyright Office Authors, Attribution, and Integrity

include false representations regarding authorship of communicative works. The Office believes

further study of the issue is warranted before drafting specific statutory language to accomplish

this goal, and for this reason is not providing draft legislation at this time. Nonetheless, in the

Office’s view, any such an amendment should be narrowly crafted to focus on the purpose of the

Lanham Act, and thus protect only against consumer confusion or mistake as to authorship or

attribution, and not to provide expanded copyright protection, or afford the author any

additional control over permissible uses of the underlying work. Such a limitation would

mitigate against the Dastar court’s policy concerns about overlapping IP doctrines generally, and

limitations on public domain uses specifically.

2. Visual Artists Rights Act (“VARA”)

The Visual Artists Rights Act (“VARA”), which added section 106A to title 17, provides

limited moral rights of attribution and integrity for authors of qualifying “works of visual art.”

307

Specifically, section 106A protects a qualifying artist’s right to claim or disclaim authorship in a

work, and provides a limited right to prevent the distortion, mutilation, or modification of a

work, as well as to prevent the destruction of a “work of recognized stature.”

308

VARA permits

the author to waive these moral rights, which are not absolute, via a signed, written agreement

that specifies the work and the particular uses of the work to which the waiver applies.

309

However, rights under VARA are non-transferrable.

310

Because these rights are personal to the

author, the rights under VARA for works created after it took effect are not coextensive with the

term of copyright but expire upon the death of the author.

311

Congress took up the question of moral rights protection for visual artists two years after

the BCIA. In the Report accompanying H.R. 2690 (Visual Artists Rights Act of 1990), the House

Committee on the Judiciary noted that the 100th Congress, at the time of the BCIA debate, agreed

that “both Federal and State [laws], statutory and common, were sufficient to comply with the

307

Pub. L. No. 101-650, 104 Stat. 5128, 5128 (1990).

308

17 U.S.C. § 106A(a). A “work of visual art” is defined as:

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of

200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a

sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively

numbered by the author and bear the signature or other identifying mark of the author; or (2) a still

photographic image produced for exhibition purposes only, existing in a single copy that is signed

by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively

numbered by the author.”

17 U.S.C. § 101.

309

17 U.S.C. § 106A(e)(1).

310

Id.

311

See 17 U.S.C. § 106A(d). For works created before VARA took effect, the duration is coextensive with the term for

economic rights: life of the author plus 70 years. See 17 U.S.C. § 106A(d)(2).

U.S. Copyright Office Authors, Attribution, and Integrity

requirements of the [Berne] Convention[]” and “therefore enacted legislation to implement the

Convention’s requirements without also enacting additional moral rights laws.”

312

The Report

continued that the 100th Congress, however, believed that “adherence to the Berne Convention

did not end the debate about whether the United States should adopt artists’ rights laws,” and

thus pursued further consideration of moral rights protections in the United States, in the context

of visual art and artists.

313

In enacting VARA, Congress was responding to “[v]isual artists, such as painters and

sculptors, [who] have complained that their works are being mutilated and destroyed, that

authorship of their works is being misattributed, and that the American copyright system does

not enable them to share in any profits upon resale of their works.”

314

Congress intended the

rights outlined in VARA to be “analogous to those protected by Article 6bis of the Berne

Convention.”

315

While several states at that time offered limited rights for visual artists, Congress

expected VARA to establish a “uniform Federal system of rights for certain visual artists.”

316

The narrowness of the statute, both as drafted and as interpreted by the courts, has,

according to many, undermined the effectiveness of the moral rights afforded under VARA. The

study comments, in addition to the case law, highlight four areas of concern with the

interpretation and application of VARA’s rights: (1) the statutory definition of a work of visual

art as a threshold for VARA claims; (2) the effect of this limited definition of a work of visual art

on exercising the rights of attribution and integrity, coupled with the difficulty of extracting a

workable standard from the statute for these rights; (3) drafting inconsistencies with the duration

provision; and (4) limited public awareness of the waiver provision.

a) Limitations of VARA

VARA protections apply only to a “work of visual art,” as defined by section 101 of the

317

Under this statutory definition, a work of visual art is a (i) painting, drawing,

print, or sculpture, (ii) existing in a single copy or in a limited edition of 200 copies or fewer that

are signed and consecutively numbered by the author.

318

A still photographic image produced

for exhibition purposes also qualifies as a “work of visual art” as long as it exists in a single copy

312

H.R. REP. NO. 101-514, at 7–8 (1990).

313

Id. at 8.

314

Id.

315

Id. at 5.

316

Id. at 9.

317

Pub. L. No. 101-650, § 602, 104 Stat. 5128, 5128 (codified at 17 U.S.C. § 101).

318

17 U.S.C. § 101. Limited editions of sculptures may contain a “signature or other identifying mark of the author.” Id.

U.S. Copyright Office Authors, Attribution, and Integrity

signed by the author or in a limited edition of 200 copies or fewer that are signed and

consecutively numbered by the author.

319

The case law, as well as the comments received in response to this Study, illustrate the

significance of the statutory definition of a “work of visual art” as a threshold for the rights under

VARA. The statutory definition excludes two large categories of works, the first being—

obviously—works that are not visual in nature. The second exclusion is those visual artworks

that do not qualify as “works of visual art” under the section 101 definition, such as posters,

advertising material, and works made for hire.

320

Many commenters, both in and out of the NOI

process, argue that this second exclusion limits the usefulness of VARA in enforcing the

attribution and integrity rights of many authors of visual works.

321

(1) VARA Applies Only to “Visual” Works

VARA does not apply to copyrightable works that are not “visual” in subject matter, such

as literary and musical works. Congress, when enacting VARA, specifically chose to limit the

scope of the moral rights ascribed in the legislation to “works of visual art” only, and not to

works belonging to other categories of copyrightable subject matter. To justify this limited scope,

Congress explained that, unlike a motion picture or a literary work, which are susceptible to

reproduction without any diminution in their value, when an original work of visual art is

modified or destroyed, “it cannot be replaced.”

322

According to one witness before the House

Judiciary Subcommittee on Courts, Intellectual Property, and the Administration of Justice during

a hearing on the VARA bill, while section 106 exclusive rights ensure that creators of literary and

audiovisual works retain exclusive control over their works, they do not necessarily reflect the

needs of visual artists to protect and control the uses of their works, which tend to exist in single

copies (or very limited quantities) and not multiple reproductions like literary or musical

works.

323

Further justifying the limited scope of VARA, one academic that testified during hearings

before the House contended that an artist imparts his or her personality into a single- or limited-

copy work of visual art more than into a mass-produced work, and thus visual art that exists

solely in a single original or in very limited copies is particularly deserving of moral rights

319

Id. The statute does not specify at what point in the creative process the author must express the intent to exhibit, or

whether the author can use the photograph for any other purpose. See Lilley v. Stout, 384 F. Supp. 2d 83, 87–89 (D.D.C.

2005) (holding that photographs taken as part of a collaborative project were not for exhibition purposes only).

320

See 17 U.S.C. § 101.

321

See infra discussion on pages 64–70.

322

H.R. REP. NO. 101-514, at 9 (1990).

323

See 1989 VARA Hearing at 100–01 (written statement of John B. Koegel, Esq.).

U.S. Copyright Office Authors, Attribution, and Integrity

protections.

324

The House Report for VARA quotes testimony before the House Judiciary

Subcommittee on Courts, Intellectual Property, and the Administration of Justice on this point,

emphasizing the unique value of the original work of art:

The original or few copies with which the artist was most in contact embody the

artist’s “personality” far more closely than subsequent mass produced images.

Accordingly, the physical existence of the original itself possesses an importance

independent from any communication of its contents by means of copies.

325

At the time of VARA’s enactment, Congress and stakeholders both noted the important

relationship between a single copy of a work that embodies an artist’s personality and

moral rights protection.

With these differences in mind, Congress drafted VARA to apply only to visual art and

not to other copyrightable works. Interpreting the statute strictly, courts have immediately

dismissed VARA claims when the work at issue is not a work of visual art subject matter. For

example, the district court in Hijrahannah v. Def Jam Recordings dismissed the plaintiff’s VARA

claims because the work at issue was sheet music.

326

Similarly, the district court in Kettenburg v.

University of Louisville dismissed a VARA claim because it was for a literary work.

327

At least two commenters have proposed that the protections outlined in VARA should be

extended to musical works and sound recordings. The Society of Composers & Lyricists

explained that music made to accompany audio-visual works is typically produced under work-

made-for-hire contracts, and urged that such musical works be “afforded the same protection” as

VARA works.

328

Likewise, the Recording Academy advocated that VARA-type protections for

324

See 1989 VARA Hearing at 84 (statement of Jane C. Ginsburg, Associate Professor of Law, Columbia University

School of Law).

325

H.R. REP. NO. 101-514, at 12 (1990) (quoting 1989 VARA Hearing at 84 (statement of Jane C. Ginsburg, Associate

Professor of Law, Columbia University School of Law)). Notably, this argument better supports the moral right of

integrity than that of attribution. The right of attribution, Professor Ginsburg maintained, should be afforded to visual

art of all stripes, regardless of multiplicity of copies. See 1989 VARA Hearing at 85 (statement of Jane C. Ginsburg,

Associate Professor of Law, Columbia University School of Law).

326

Hijrahannah v. Def Jam Recordings, No. 14 C 0872, 2014 WL 3586055, at *2 (N.D. Ill. July 21, 2014) (dismissing for failure

to state a claim upon which relief can be granted, plaintiff’s VARA claims regarding the use of his sheet music by other

artists).

327

Kettenburg v. Univ. of Louisville, No. CIVA 3:06CV79, 2005 WL 4444092, at *2 (W.D. Ky. June 16, 2005) (dismissing the

plaintiff’s VARA claim concerning proper attribution for his creative writing class assignment).

328

Society of Composers & Lyricists (“SCL”), Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017,

Notice of Inquiry at 3 (Mar. 30, 2017) (“SCL Initial Comments”).

U.S. Copyright Office Authors, Attribution, and Integrity

attribution should be accorded creators of musical works and sound recordings, specifically so

“songwriters, producers, engineers and non-featured artists” are given credit for their work.

329

Whether musical works or sound recordings should be protected by federal rights of

attribution and integrity is part of the fundamental question of whether there should be a blanket

statutory federal moral rights regime, and the Office has addressed that question above.

330

However, on the narrower question of whether VARA in particular should be expanded to

encompass musical works and sound recordings, the Office believes that such an approach would

contradict the purpose of VARA as explained in the legislative history. First, musical works and

sound recordings are made available to the public in mass-produced editions, not the single or

limited editions that make certain works of visual art so suitable for moral rights protection.

Second, as explained by the Society of Composers & Lyricists, musical works created to

accompany audio-visual works tend to be made-for-hire.

331

Works-made-for-hire are explicitly

excluded from VARA even if they are original visual art works.

332

Third, musical works and

sound recordings can benefit from contractual protections for attribution and integrity interests of

the sort not available to visual artists, who typically work without such contracts.

333

(2) Not All Visual Art Works are Covered by VARA

Although VARA covers visual art works, not all works of visual art qualify under the

statutory definition of a “work of visual art.”

334

Case law and the study comments highlight the

narrow scope of VARA resulting from this limited definition. According to the House Report for

VARA, “courts should use common sense and generally accepted standards of the artistic

community in determining whether a particular work falls within the scope of the definition.”

335

The following discussion outlines the various types of visual works of art that the courts have

interpreted as excluded from the statutory definition of a “work of visual art” for which the artist

can exercise his or her moral rights under VARA: (a) works made for hire, (b) commercial art, (c)

applied art, (d) non-copyrightable art, (e) preparatory works, and (f) site-specific works.

329

Recording Academy, Reply Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of

Inquiry at 2 (May 15, 2017) (“Recording Academy Reply Comments”).

330

See supra pages 38–39.

331

SCL Initial Comments at 3.

332

See 17 U.S.C. § 101 (definition of “work of visual art”).

333

See American Association of Independent Music (“A2IM”), Reply Comments Submitted in Response to U.S.

compelling reason for this expansion [VARA to sound recordings], and in fact, would negatively impact the

independent music community. Contractual provisions incorporating protections for attribution and integrity are

already part of many recording agreements.”).

334

See supra notes 317–320 and accompanying discussion.

335

H.R. REP. NO. 101-514, at 11 (1990).

U.S. Copyright Office Authors, Attribution, and Integrity

(a) Works Made for Hire

Section 101’s definition of a “work of visual art” specifically excludes works made for

hire.

336

The House Report for VARA does not explain this exclusion, but in its comments on the

1989 VARA bill the U.S. Copyright Office noted that, “[a]s a practical matter, most works

described in the bill [e.g., works of visual art in single or limited editions] are not usually created

for hire.”

337

Even witnesses in 1989 opposed to the work-made-for-hire exclusion pointed out that

a work created as a commissioned work-made-for-hire would typically be a mass-produced

work, and thus not covered by VARA.

338

These two pieces of testimony bolster the supposition

that VARA’s authors did not perceive a significant relationship between the visual art works they

were seeking to protect and the types of visual art that tend to be made for hire; thus they

excluded works made for hire from the definition of “work of visual art.” Recall that to qualify as

a work made for hire, a work must be either “prepared by an employee within the scope of his or

her employment,” or

specially ordered or commissioned for use as a contribution to a collective work,

as a part of a motion picture or other audiovisual work, as a translation, as a

supplementary work, as a compilation, as an instructional text, as a test, as

answer material for a test, or as an atlas, if the parties expressly agree in a written

instrument signed by them that the work shall be considered a work made for

hire.

339

Commissioned works in most, if not all, of these categories tend not to be works of visual art in

single or limited editions, hence the arguments above that the universes of works made for hire and

works intended to be protected by VARA seldom intersect.

There have been, however, cases that found that single-edition works which would

otherwise be covered by VARA were ultimately not protected by the statute because of the

employee status of the artist. For example, the Second Circuit in Carter v. Helmsley-Spear found the

plaintiffs’ sculpture to be a work made for hire as the plaintiffs were directed under contract to

336

17 U.S.C. § 101 (“A work of visual art does not include . . . (B) any work made for hire”). A work made for hire, as

defined by the Copyright Act, is a “work prepared by an employee within the scope of his employment” or “a work

specially ordered or commissioned for use as [nine categories of works] if the parties expressly agree in a written

instrument signed by them that the work shall be considered a work made for hire.” Id.

337

See 1989 VARA Hearing at 65 (1989) (written statement of Ralph Oman, Register of Copyrights).

338

See id. at 86 (written statement of Jane C. Ginsburg, Associate Professor of Law, Columbia University School of Law)

(“Nor, I believe, is a works made for hire exception needed. The exception would essentially benefit proprietors of the

kinds of works listed in Section 101, for example, encyclopedias, atlases and periodicals. These are mass-produced

works, to which the right of integrity would not in any event apply.”).

339

17 U.S.C § 101 (definition of “work made for hire”).

U.S. Copyright Office Authors, Attribution, and Integrity

design, create, and install the sculpture while receiving employee benefits, such as a weekly

salary.

340

Thus, the court dismissed the plaintiffs’ VARA claims.

341

Some commenters suggested amending the statute and extending VARA protections

specifically to works made for hire.

342

One of these commenters stressed that the focus should be

on granting the right of attribution to commissioned works of visual art, and expressed concern

about whether artists are generally sufficiently informed of the details of contract law to negotiate

for attribution rights within work-made-for-hire contracts.

343

The other commenter argued for

both attribution and integrity rights for works-made-for-hire, which the commenter argued will

primarily apply to employee-created works.

344

With the aim of continuing to honor the integrity

of contracts, the Office at this time does not recommend extending VARA protections to visual

works made for hire.

The Office remains in agreement with its 1989 observation that, because of the limitations

of the statutory definition of “work made for hire,” the worlds of single- or limited-edition visual

art works and visual art works made for hire seldom intersect,

345

and further, that this argues for

excluding works made for hire from the section 101 definition of “works of visual art.” In its

comments for the current study, the Kernochan Center pointed out that “the number of works for

hire that would otherwise qualify as ‘works of visual art’ is likely to be relatively small,” both in

terms of specially ordered or commissioned works and works created by employees.

346

While this

comment was intended to bolster the argument for including works made for hire in the

definition of “work[s] of visual art,” it can just as easily cut in the other direction. Specifically, if

the universe of works made for hire contain relatively few otherwise VARA-eligible works, then

removing the work made for hire exclusion won’t make much of a difference to the majority of

340

Referring to the work-made-for-hire test articulated by the Supreme Court in Community for Creative Non-Vi olence v.

Reid, 490 U.S. 730 (1989), the Second Circuit held that the artwork was a work made for hire under the same standard.

Carter v. Helmsley-Spear, Inc. (“Carter II”), 71 F.3d 77, 87–88 (2d Cir. 1995).

341

See Carter II, 71 F.3d at 88. See also MG Design Assocs., Corp. v. Costar Realty Info. Inc., 224 F. Supp. 3d 621, 634–35 (N.D.

Ill. 2016) (dismissing plaintiff’s VARA claim because the designs at issue were done as a work made for hire).

342

See CVA Initial Comments at 5–9; Kernochan Center Initial Comments at 7; see also David E. Shipley, The Empty

Promise of VARA: The Restrictive Application of a Narrow Statute, 83 MISS. L.J. 985, 1010 (2014) (“[T]he idea that the

employee-artist does not have moral rights in the creations done for an employer is antithetical to moral rights

theory.”).

343

See CVA Initial Comments at 5–7, 9 (“There is no reason why the moral right of attribution should be stripped from

an independent creator and assigned to someone else who is not their employer in a work made for hire contract . . . .”).

344

See Kernochan Center Initial Comments at 7 n.19.

345

See 1989 VARA Hearing at 65 (written statement of Ralph Oman, Register of Copyrights).

346

Kernochan Center Initial Comments at 7 n.19. See also id. (“Most commissioned artworks do not fit within the nine

statutory categories of ‘specially ordered or commissioned works’ that are capable of being works made for hire. . . .

Moreover, most employee-created artworks (such as greeting cards and comic books) are not likely to be produced as

single originals or only as limited editions of under 200 copies signed and numbered.”).

U.S. Copyright Office Authors, Attribution, and Integrity

working artists. On the contrary, the Office believes that it would negatively alter the very nature

of a work made for hire relationship by undercutting the claim of the employer to “authorship”

status.

(b) Commercial Art

Section 101’s definition of a “work of visual art” also excludes “any merchandising item or

advertising, promotional, descriptive, covering, or packaging material or container,” preventing

authors from exercising their moral rights for these works under VARA.

347

The House Report on

VARA does not explain or give examples of what is meant by this limiting language.

Contemporaneous hearings have but one reference, in written testimony to a Senate Judiciary

Committee hearing by the National Newspaper Association (“NNA”), illustrating several

complications that could result from granting moral rights to artists who create images used in

advertising.

348

While there is no way to know if the NNA’s testimony influenced Congress, it is at

least one indication of what Congress might have been considering. Of course, this does not help

in understanding the other exclusions in the definition, such as promotional or descriptive

material that are not used in advertising.

A number of cases have denied an artist protection under VARA because the work was

considered promotional or advertising material.

349

For example, the court in Pollara v. Seymour

found that the “objective and evident purpose” of a banner created as part of a lobbying effort to

promote a specific message rendered the banner as promotional and advertising material and not

an eligible work of visual art, despite the artistic ability and creativity inherent in the work.

350

The

concurrence, however, disagreed with the majority’s test for commercial or promotional material

and explained that excluding from the definition of visual art all works that “promote” is

unworkable, because, under that formulation, any painting or sculpture commissioned to

347

17 U.S.C. § 101.

348

See Moral Rights in Our Copyright Laws: Hearings on S. 1198 and S. 1253 Before the Subcomm. on Patents, Copyrights and

Trademarks of the S. Comm. on the Judiciary, 101st Cong. 689 (1989) (written statement of Jack Fishman, National

Newspaper Association) (“Would the newspaper have to receive permission to reduce the size of a drawing, or to

augment a simple drawing, or combine several? Would permission have to be obtained before a black and white ad

was run in color, or a color ad run in black and white? What would we do when our ad department received camera-

ready copy which had no attribution on it? Refuse the ad? Track down the artist?”).

349

See, e.g., MG Design, 224 F. Supp. 3d at 634–35 (finding that renderings of trade show designs were not visual art in

part because they “were a design for a client's commercial promotion and intended to profit MG and attract more

business for MG and its client”); Benke v. Departure Agency, Inc., No. CV 11-397, 2011 WL 13129964, at *4 (C.D. Cal. Aug.

11, 2011) (finding that photographs commissioned by a hotel were not visual art because they were produced “solely to

advertise the hotel services”).

350

Pollara v. Seymour, 344 F.3d 265, 269–71 (2d Cir. 2003).

U.S. Copyright Office Authors, Attribution, and Integrity

promote a specific idea such as the Olympics or AIDS awareness “could never receive protection

under VARA.”

351

In its comments, the Coalition of Visual Artists objected to VARA’s exclusion of

commercial art as sending the message that certain types of commercial art, specifically design,

illustration, and photography, are “unworthy of moral rights.”

352

According to the Coalition,

these types of artworks do not have different artistic merit than fine art — the art typically

associated with VARA. Instead, the Coalition argued that the distinction between fine art and

commercial art is not as clear in the digital age as it might have been when VARA was enacted,

and commercial art should not be excluded in this manner from moral rights protection.

353

The Office does not believe that Congress excluded commercial and promotional works

from the definition of “work of visual art” because it believed such images to be somehow

artistically less worthy than so-called “fine art.” Instead, it appears more likely that, following

the sort of arguments put forth by the NNA, that Congress wanted to avoid interfering with

works of art that were controlled or influenced by an entity other than the artist—and hence

presumably are less attached to the artist’s reputation—as well as avoid interfering with

contractual freedoms. The Office accepts this apparent reasoning, but does believe that the

commercial/”fine art” distinction can be drawn more narrowly than the current statute has it.

Regarding Pollara, the Office agrees with both the majority and the concurrence: The majority is

correct in its finding that the exclusion of a banner “created for the purpose of promoting and

advertising” is required by the statute, regardless of the content of its message or skill of its

design.

354

The concurrence, also, is correct in pointing out the logical conclusion of this broad

exclusion—that artwork that merely promotes an idea or a cause, without commercial intent,

would be excluded from VARA protection.

355

Pollara indicates, then, the need for re-visiting VARA’s exclusions from the term “work of

visual art.” Despite the clear message of the statutory language, Congress in 1989 betrayed no

intent to exclude artworks that independently promote ideas or causes.

356

It did, however, as

shown in the 1989 hearing transcripts, take testimony regarding the necessity of excluding

351

Id. at 271 (Gleeson, J., concurring).

352

CVA Initial Comments at 3.

353

Id. at 13.

354

Pollara, 344 F.3d at 270.

355

Pollara, 344 F.3d at 271–72 (Gleeson, J., concurring).

356

For discussions of some examples of such artwork, see, e.g., Margaret Carrigan, What Happens When Social Practice

Art Meets the Market?, ARTSY (Aug. 30, 2017, 6:44 PM), https://www.artsy.net/article/artsy-editorial-social-practice-art-

meets-market (discussing the impact of social practice art); Maria D. Leake, Art as Social Practice: Exploring the

Contemporary, ART EDUC., Mar. 2012, at 25, 26–32; M.H. Miller, Protest Art in the Era of Trump, N.Y. TIMES STYLE MAG.

(Feb. 20, 2017), available at http://www.nytimes.com/2017/02/20/t-magazine/protest-art-betty-tompkins-postcommodity-

rirkrit-tiravanija.html.

U.S. Copyright Office Authors, Attribution, and Integrity

artworks created on the basis of a contract.

357

Hence, barring VARA protection for some

commercial art may be appropriate for moral rights protection, but barring art that independently

promotes a social or political message absent of any commercial intent seems to the Office to be a

step too far.

Based on its analysis in the discussion above, the Office recommends that Congress

consider a statutory amendment concerning the definition of a “work of visual art” to enable

more artists to claim moral rights protection for visual art that promotes a particular cause or

viewpoint, and to clarify the scope of “commercial art” excluded from VARA protections.

Specifically, the Office recommends adopting the definition of an eligible work similar to that

used by the California Art Preservation Act, adding the phrase “prepared under contract for

commercial use by its purchaser” to the definition in section 101.

358

A proposed section 101

would thus read:

a work of visual art does not include – (A) . . . (ii) any merchandising item or

advertising, promotional, descriptive, covering, or packaging material or

container, any of which are prepared under contract for commercial use by its

purchaser.

This proposed standard specifically excludes art created to call attention to a particular

product or service in the commercial context. However, art that may promote a particular

social/non-commercial message carries the same concerns for attribution and integrity as other

visual art. Therefore, “protest art” or art created for a political purpose or social cause that

promotes a particular message would not be excluded based on the particular use of the work

under the proposed section 101 work of visual art definition.

359

The content and meaning of the

work should not serve as a barrier to these important moral rights protections.

VARA’s standard for a “work of visual art” also specifically excludes “applied art,”

360

which the statute does not define. While Congress in the VARA legislative history referred to the

exclusions, including applied art, as “self-explanatory,”

361

courts have struggled to find a

workable standard for when a work qualifies as applied art in the context of VARA. In Carter v.

Helmsley-Spear, Inc., the Second Circuit held that a sculpture consisting of pieces of a school bus,

automobile parts, and a number of interactive components affixed to a wall and ceiling and

357

See 1989 VARA Hearing at 65 (written statement of Ralph Oman, Register of Copyrights) (addressing potential VARA

protection of works made for hire).

358

CAL. CIV. CODE § 987(b)(2).

359

For example, the banner created to lobby a social cause (legal aid for prisoners) in Pollara would qualify as a work of

visual art under the proposed standard. See supra notes infra [x]-[xxx] and accompanying text.

360

17 U.S.C. § 101 (“A work of visual art does not include— (A)(i) . . . applied art[.]”).

361

H.R. REP. NO. 101-514, at 13 (1990).

U.S. Copyright Office Authors, Attribution, and Integrity

embedded in the floor and wall of a building lobby was not applied art.

362

The appellate court

reiterated the district court’s explanation that “applied art” encompassed “two- and three-

dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects.”

363

The

appellate court further held that the sculpture in this particular case was not applied art even

though it was affixed to “the lobby’s floor, walls, and ceiling,” because “[i]nterpreting applied art

to include such works would render meaningless VARA’s protection for works of visual art

installed in buildings.”

364

Attempting to create a workable standard for “applied art,” the Ninth Circuit in Cheffins v.

Stewart considered whether La Contessa, a school bus adorned in the trappings of a 16th-century

Spanish galleon, was applied art—that is, the object of the art “initially served a utilitarian

function and . . . continues to serve such a function after the artist made embellishments or

alterations to it.”

365

While the concurrence contended that this standard would frustrate the

purpose of VARA by “unduly narrowing the protections of artists,”

366

the majority defended this

standard by focusing on the object’s “practical utility” instead of its “artistic merit.”

367

While

acknowledging the artistic qualities of La Contessa, the court concluded that La Contessa was

applied art as it began as a rudimentary object and continued to be used for transportation and as

an entertainment stage after its transformation.

368

While commenters in this study did not specifically discuss applied art in this context, the

concurrence in Cheffins criticized the lack of appropriate definitions in VARA and the absence of

any guidance developing in the case law.

369

The concurrence further emphasized that a more

nuanced test was necessary that would “evaluate the work as a whole” and serve the greater

purpose of VARA.

370

The Office finds persuasive the Cheffins concurrence’s assessment of the

362

Carter II, 71 F.3d at 80, 85.

363

Id. at 84–85 (2d Cir. 1995) (quoting Carter v. Helmsley-Spear, Inc. (“Carter I”), 861 F. Supp. 303, 315 (S.D.N.Y. 1994)).

364

Carter II, 71 F.3d at 85.

365

Cheffins v. Stewart, 825 F.3d 588, 594 (9th Cir. 2016).

366

Id. at 597–98 (McKeown, J., concurring). More specifically, the concurrence argued that the definition fails to

consider the work as a whole and “fails to clarify when the product of artistic creation has crossed the threshold of

functionality that transforms it form visual to applied art.” Id. at 599. The concurrence proposed that the standard

should consider the primary purpose of the work instead and whether the artistic features are subservient to a useful

function. Id. at 602.

367

Cheffins, 825 F.3d at 594.

368

Cheffins, 825 F.3d at 595.

369

See id. at 600 (McKeown, J., concurring) (“The difficulty of our job is compounded because VARA provides no

definitions of applied art. Leaders of the art community warned Congress that VARA ‘does not offer firm definitions’ of

applied and visual art, leaving ‘open for conjecture the kinds of art and artists eligible for protection.’ [But] Congress

was unmoved.”) (internal citation omitted).

370

Id. at 602 (McKeown, J., concurring).

U.S. Copyright Office Authors, Attribution, and Integrity

inadequacy of current judicial standards. The absence of any applicable statutory or legislative

guidance has led to an imprecise judicial standard and uncertainty, at the very least, in the art

world.

371

The Office suggests that Congress re-evaluate VARA’s lack of guidance as to the

exclusion of applied art and consider whether an amendment making its intent clear is

warranted, to ensure the exclusion is not overly broad and that courts can apply a uniform

standard. Specifically, the Office recommends further study of how working artists understand

the term and how courts have interpreted it.

(d) Non-copyrightable Art

Works ineligible for copyright protection also do not qualify as works of visual art under

VARA.

372

In Kelley v. Chicago Park District, the Seventh Circuit Court of Appeals dismissed

Chapman Kelley’s claim that the park district violated his right of integrity under VARA for

modifying his Chicago Wildflower Works (1984–2004), a wildflower display planted in a public

park.

373

The Seventh Circuit found that because Kelley’s garden was “neither ‘authored’ nor

‘fixed’ in the senses required for copyright,” the work could not qualify for moral rights

protection under VARA.

374

Chapman Kelley, in his comment for this study, argued that VARA’s

definition of a “work of visual art” should be amended to include works similar to his Chicago

Wildflower Works.

375

Kelley contended not only that his work satisfies the fixation requirement for

it.”

376

The Office disagrees that including non-copyrightable art within the VARA framework is

appropriate. Providing moral rights protection to art that does not qualify for copyright

protection would improperly extend the scope of copyright law. Recall that VARA protects only

a “work of visual art,” which definitionally excludes “any work not subject to copyright

371

See Lena Saltos, Cheffins v. Stewart: Burning Man; Burning Ships, HHR ART LAW (July 5, 2016),

http://www.hhrartlaw.com/2016/07/cheffins-v-stewart-burning-man-burning-ships (“[T]he test the majority adopted

may not provide the clarity and objectivity for which it hoped. . . . This will significantly narrow the reach of VARA and

deter artists from bringing claims with respect to destruction of works that may incorporate utilitarian elements, thusly

undermining one of VARA’s main goals.”).

372

See 17 U.S.C. § 101 (“A work of visual art does not include— . . . (C) any work not subject to copyright protection

under this title.”).

373

Kelley v. Chi. Park Dist., 635 F.3d 290, 306 (7th Cir. 2011).

374

Id.

375

See Chapman Kelley, Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 3

(Mar. 27, 2017) (“Chapman Kelley Initial Comments”); see also Jenny Keller, Comments Submitted in Response to U.S.

art, especially Chicago Wildflower Work (CWW) by Chapman Kelley. This original work is important to art history

and to the arts community, but especially to the viewing public.”).

376

Chapman Kelley Initial Comments at 3.

U.S. Copyright Office Authors, Attribution, and Integrity

protection under this title.”

377

Extending VARA to non-copyrightable works could require a

statutory amendment and would threaten the creation of the very kind of “mutant copyright”

warned against by the Supreme Court in the Dastar case.

378

Moreover, it would be unreasonable

to grant moral rights—rights that are personal to the author—to art that does not qualify as

having sufficient original, human expression for copyright protection.

379

(e) Preparatory Works

The text of VARA specifically excludes “models” from the definition of a work of visual

art. Nevertheless, artists have attempted to bring VARA claims regarding preparatory works

made in the process of creating the final product. While the House Report accompanying H.R.

2690 advises that “courts should use common sense and generally accepted standards of the

artistic community in determining whether a particular work falls within the scope of the

definition,”

380

VARA’s legislative history does not specifically discuss the relationship between

barring “models” and the question of preparatory works in general.

With this limited guidance, the courts have not consistently held whether preparatory

works qualify as a work of visual art or as an ineligible “model.” In Flack v. Friends of Queen

Catherine, Inc., the court for the Southern District of New York considered whether a clay head

that was used to cast a bronze statue was a work of visual art or a “model” excluded from VARA

protection.

381

The court observed that neither the statute nor the legislative history of VARA

provides much guidance with determining the meaning of the word “model.”

382

Relying on the

art community’s acceptance and exhibition of clay sculptures as works of art in their own right,

the court found that the preparatory clay head in this case was a work of visual art independent

of the final bronze statute.

383

The Third Circuit in NASCAR v. Scharle, however, did not refer to

the standards of the artistic community when determining whether drawings for the two-

dimensional design of a trophy fell into the purview of VARA.

384

Instead, the court interpreted

these particular drawings as “technical drawings, diagrams, or models for the trophy,” and not

377

17 U.S.C. § 101 (definition of “work of visual art”).

378

Dastar, 539 U.S. at 34.

379

See Naruto v. Slater, 888 F.3d 418, 420 (9th Cir. 2018) (finding that animals lack statutory standing under the Copyright

Act).

380

H.R. REP. NO. 101-514, at 11 (1990).

381

Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 532 (S.D.N.Y. 2001).

382

Id. at 533 (“The legislative history is completely devoid, however, of any indication of the meaning of the word

‘model.’ Indeed, when the exclusionary portion of the definition of ‘a work of visual art’ is discussed at all, the

distinction emphasized is that between fine art, on the one hand, and movies, books, newspapers, magazines, and other

creative works on the other.”).

383

Id. at 533–34.

384

See Nat’l Ass’n for Stock Car Auto Racing, Inc. (“NASCAR”) v. Scharle, 184 Fed. App’x. 270 (3d Cir. 2006).

U.S. Copyright Office Authors, Attribution, and Integrity

works of visual art, as the drawings only “represented multiple attempts to arrive at the optimal

design for the trophy,” the final product.

385

The Study comments did not specifically discuss models or preparatory works in the

context of VARA’s definition of a “work of visual art,” and the Copyright Office has no cause to

make a recommendation on this topic beyond a suggestion that courts take seriously the House

Report’s admonition to “use . . . generally accepted standards of the artistic community” when

evaluating a work’s status as a “work of visual art.”

386

So far, the courts have inconsistently

applied this instruction when evaluating preparatory works. The Office, however, finds a useful

model in the court’s application of community standards in Flack v. Friends of Queen Catherine, Inc.

In different areas of copyright law, the courts tend to avoid any analysis of the artistic merits of

the work and defer to the expertise of those in the community.

387

Adopting this approach for

interpreting preparatory works in the VARA context more appropriately responds to the

particular goals of the statute.

(f) Site-specific Art

VARA does not specifically mention “site-specific works”—works that are fundamentally

integrated with their setting and are considered incomplete when perceived in isolation. The

nature of site-specific art signifies that removing the work from its original site ultimately

destroys the work, rendering this category of art particularly relevant in the VARA context.

With the absence of any mention of site-specific works in the statute, courts have again

inconsistently interpreted whether site-specific works fall under the definition of “work of visual

art.” For example, the First Circuit in Phillips v. Pembroke Real Estate, found that VARA does not

apply to site-specific art, in this case a multi-element sculpture designed for a specific park.

388

The

court relied upon the public presentation exception under section 106A(c)(2), which states that a

“modification of a work of visual art which is the result of . . . public presentation . . . is not a

destruction, distortion, mutilation, or other modification.”

389

According to the court, allowing

VARA to protect site-specific works would ultimately create two different regimes: “one for free-

standing works of art . . . and one for site-specific art that can never be moved and must always

385

Id. at 276 (internal citations omitted).

386

H.R. REP. NO. 101-514, at 11 (1990).

387

See, e.g., Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (“It would be a dangerous undertaking for

persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the

narrowest and most obvious limits.”); Esquire, Inc. v. Ringer, 591 F.2d 796, 805 (D.C. Cir. 1978) (“Neither the Constitution

nor the Copyright Act authorizes the Copyright Office or the federal judiciary to serve as arbiters of national taste.”);

Christine Haight Farley, Judging Art, 79 TUL. L. REV. 805, 810–19 (2005) (examining arguments about why judges should

not judge art).

388

See Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 140–43 (1st Cir. 2006).

389

Id. at 133 (quoting 17 U.S.C. § 106A(c)(2)).

U.S. Copyright Office Authors, Attribution, and Integrity

be displayed.”

390

The court held that “the plain language of VARA does not protect site-specific

art,” but “[i]f such protection is necessary, Congress should do the job.”

391

The Seventh Circuit in Kelley v. Chicago Park District offered a different perspective on the

relationship between VARA and site-specific art and warned against the strict interpretation

adopted by the Phillips court.

392

In doing so, it raised three counterarguments, namely: (1) “site-

specific art” is not mentioned at all in the statute as being excluded or otherwise, leaving the

courts with more flexibility concerning this question; (2) the section 106A(c)(2) public

presentation exception does not waive all VARA rights for site-specific art, including the right of

attribution, and thus the argument in Phillips that the public presentation exception is an

indication that site-specific art should not be protected does not hold; and (3) the building

exception in section 113(d) seems to indicate that the statute acknowledges potential protection

for site-specific art.

393

One commenter called for expanding VARA to explicitly include site-specific works. She

argued that the “artist’s ability to articulate the nature and importance of the site-specificity of an

artwork” justifies VARA protection.

394

She further explained that this proposed expansion of

VARA “seems barely more burdensome to property owners, and, appropriately, a good deal

more respectful to artists.”

395

At this time, the Office agrees with the Kelley court that courts have

flexibility in applying VARA to works of site-specific art, but finds that the ancillary legal issues

relating to site-specific art, such as the rules in section 113(d) regarding a work of visual art that

has been incorporated in a building, and the obligations thereto of the building’s owner,

396

disfavor a one-size-fits-all statutory change to ensure any meaningful and appropriate expansion

of moral rights to these works. Moreover, the overlap between site-specific works and other

390

Id. at 143.

391

Id.

392

Kelley v. Chi. Park Dist. 635 F.3d 290, 306–07 (7th Cir. 2011) (analyzing Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128

(1st Cir. 2006)).

393

Id. Section 113(d), known as “the building exception” states that works “incorporated in or made part of a building

in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other

modification of the work” do not qualify for moral rights protection if the artist (1) consented to the installation of the

work in the building (if pre-VARA enactment) or (2) executed a written acknowledgement that removal of the work

may subject it to destruction, distortion, mutilation, or modification (if post-VA RA e n act men t) . See 17 U.S.C. § 113(d).

394

Sarah Conley Odenkirk, Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry

at 2 (Mar. 19, 2017) (“Odenkirk Initial Comments”).

395

Id. at 2.

396

See 17 U.S.C. § 113(d).

U.S. Copyright Office Authors, Attribution, and Integrity

categories of visual art may overcome these challenges prompted by the ancillary legal issues and

provide sufficient moral rights protection when appropriate.

397

b) Actionable Conduct: VARA Rights of Attribution & Integrity

Generally, the courts resolve most VARA cases on the threshold question whether the

plaintiff’s work is a work of visual art as defined by the statute. Thus, scant case law exists

discussing the specific standards, especially for the appropriate remedies, for violations of the

right of attribution and right of integrity under VARA.

398

The few cases in which the courts

substantively discuss the rights of attribution and integrity highlight specific problems in the

interpretation and application of the statutory standards relating to both rights.

(1) Right of Attribution

Under VARA, an artist exercising the right of attribution may claim authorship of his or

her work of visual art and prevent another party from using the artist’s name on works not

created by the artist.

399

This provision upholds the artist’s right to be associated with works that

reflect only his or her artistic vision.

400

VARA also provides the artist with the right to prevent the use of his or her name as

author of a work of visual art that has been distorted, mutilated, or modified in a way that would

be “prejudicial to his or her honor or reputation.”

401

This right blends the objectives of both the

attribution and integrity rights as it forbids the combination of alteration of a work together with

inaccurate attribution of the altered work to the particular artist.

402

According to the legislative

history, the standard for determining whether an action is “prejudicial” to an artist’s reputation is

397

See Cohen v. G & M Realty L.P. (“5Pointz”), No. 15-CV-3230, 2018 WL 851374 (E.D.N.Y. Feb. 12, 2018) (awarding

damages to the artists for the destruction of site-specific graffiti art).

398

See Mass. Museum of Contemporary Art Found., Inc. (“MASS MoCA”) v. Büchel, 593 F.3d 38, 53 (1st Cir. 2010) (“[C]ourts

avoid construing the extent of VARA protection by finding that works do not meet the threshold requirements for

‘visual art’ protected by VARA. Unsurprisingly, therefore, we have found no case law discussing a possible difference

in the showing required for injunctive relief and damages for right-of-integrity claims.”) (cleaned up).

399

17 U.S.C. § 106A(a)(1)(A)–(B).

400

See H.R. REP. NO. 101-514, at 5 (1990) (stating that the attribution right “ensures that artists are correctly identified

with the works of art they create, and that they are not identified with works created by others”).

401

17 U.S.C. § 106A(a)(2).

402

See Mass. Museum of Contemporary Art Found., Inc. (“MASS MoCA”) v. Büchel, 565 F. Supp. 2d 245, 256–57 (D. Mass.

2008) (“This aspect of VARA protection would prevent a third party from taking Artist A’s finished sculpture, for

example, and chopping pieces off it, or painting it blue, and then exhibiting it as A’s work.”), aff’d in part, vacated in part,

remanded, 593 F.3d 38 (1st Cir. 2010).

U.S. Copyright Office Authors, Attribution, and Integrity

“flexible” and should “focus on the artistic or professional honor or reputation of the

individual.”

403

Section 106A(c)(3) provides an exception to the attribution right by immunizing

defendants from liability for “any reproduction, depiction, portrayal, or other use of the work” in

connection with the types of works listed under subparagraphs (A) and (B) of the definition of a

work of visual art, which includes posters, technical drawings, models, books, magazines,

newspapers, periodicals, advertising, promotional material, or works made for hire.

404

Under this

exception, a reproduction of an artist’s visual work on a poster or in a magazine need not be

accompanied by the artist’s name. Many of the attribution claims brought under VARA focus on

a reproduction, not the original, work of visual art. Courts have consistently dismissed these

claims under this exception.

405

Neither the courts nor the study comments have dealt with the substance of VARA’s right

of attribution. Any study comments that mentioned the right of attribution under VARA

generally advocated for Congress to extend this right to other types of copyrighted works or

works of visual art that do not fit under the statutory definition.

406

As discussed above, extending

the right of attribution under VARA to other types of copyrighted works would certainly involve

amending the definition of a “work of visual art,”

407

as well as generally expanding VARA well

beyond its current limits. The Office awaits future court decisions that may further illuminate the

issue of the attribution right under VARA.

403

H.R. REP. NO. 101-514, at 15 (1990).

404

17 U.S.C. § 106A(c)(3). According to the legislative history, the actions that fall under this exception “do not affect

the single or limited edition copy,” and thus “imposing liability in these situations would not further the paramount

goal of the legislation: to preserve and protect certain categories of original works of art.” H.R. REP. NO. 101-514, at 18

(1990).

405

See, e.g., Wilson v. New Palace Casino, L.L.C., No. 1:11cv447, 2013 WL 870350, at *3–4 (S.D. Miss. Mar. 7, 2013)

(dismissing the artist’s attribution claim in relation to reproductions of a feature of his original painting); Martin v. Walt

Disney Internet Grp., No. 09CV1601, 2010 WL 2634695, at *5 (S.D. Cal. June 30, 2010) (dismissing the plaintiff’s

attribution claim regarding reproductions of her photograph); Silberman v. Innovation Luggage, Inc., No. 01 Civ. 7109,

2003 WL 1787123, at *4–5 (S.D.N.Y. Apr. 3, 2003) (holding that the artist could not assert an attribution claim under

VARA in relation to unsigned reproductions of the artist’s original photograph).

406

See, e.g., American Society of Journalists and Authors (“ASJA”), Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 5 (Mar. 30, 2017) (“ASJA Initial Comments”) (“It is our understanding that the

United States recognizes moral rights (although only attribution and integrity) for visual artists through VARA . . . but

not for authors. So we ask, why should one sort of creative work get moral rights protections, but not others?”); CVA

Initial Comments at 5 (“The moral right of attribution should include works created by independent creators created

under work made for hire contracts.”); Recording Academy Reply Comments at 2 (“The Academy believes that similar

protections, with respect to the right of attribution, should be extended to the creators of musical works and sound

recordings to ensure that credit is also granted to songwriters, producers, engineers and non-featured artists . . . .”).

407

See supra discussion on pages 64–70.

U.S. Copyright Office Authors, Attribution, and Integrity

(2) Right of Integrity

The right of integrity under VARA consists of two parts: (a) the right to prevent any

intentional distortion, mutilation, or other modification that would be prejudicial to the artist’s

honor or reputation;

408

and (b) the right to prevent any destruction of a work of recognized

stature.

409

Congress intended the right of integrity to further the public interest in preserving and

protecting works of visual art and thereby preserving the integrity of our shared culture.

410

The

case law and the study comments have highlighted several issues regarding the interpretation

and scope of these two rights of integrity.

(a) Prejudicial to Artist’s Reputation

As stated above, VARA extends to artists of works of visual art the right to prevent any

intentional distortion, mutilation, or other modification of their work that would be prejudicial to

the artist’s honor or reputation.

411

However, VARA limits this right with three exceptions. A

work is not distorted, mutilated or otherwise modified for these purposes if the modification is

the result of the passage of time or the inherent nature of the materials.

412

Similarly, the

modification of a work of visual art resulting from conservation or public presentation (including

lighting and placement) does not qualify as destruction, distortion, mutilation, or other

modification in this context unless the modification is caused by gross negligence.

413

Conservation by a person without sufficient training may qualify as gross negligence, but it is not

clear whether it would constitute a violation of the VARA right of integrity.

414

In its study

comments, the Artists Rights Society argued that gross negligence “is extremely difficult to

establish,” and poor restoration or conservation may leave the artist “without recourse.”

415

While the statute itself does not provide any guidance on the scope of the right of integrity

relating to prejudicial harm, the VARA House Report recommended that the courts “focus on the

artistic or professional honor or reputation of the individual as embodied in the work that is

408

17 U.S.C. § 106A(a)(3)(A).

409

17 U.S.C. § 106A(a)(3)(B).

410

See H.R. REP. NO. 101-514, at 5–6 (1990); see also John H. Merryman, The Refrigerator of Bernard Buffet, 27 HASTINGS L.J.

1023, 1042 (1976) (arguing that the pre-VARA copyright “law provides no way to protect the public interest in

preservation of our culture against revision of works of art by unilateral unauthorized action”). But see Amy M. Adler,

Against Moral Rights, 97 CALIF. L. REV. 263, 290–93 (2009) (arguing that the preservation emphasis of VARA is

inappropriate for contemporary art—the only type of art that VARA protects).

411

17 U.S.C. § 106A(a)(3)(A).

412

17 U.S.C. § 106A(c)(1).

413

17 U.S.C. § 106A(c)(2).

414

See Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 535 (S.D.N.Y. 2001).

415

ARS Initial Comments at 2.

U.S. Copyright Office Authors, Attribution, and Integrity

protected” and “examine the way in which a work has been modified and the professional

reputation of the author of the work.”

416

The appellate court in MASS MoCA v. Büchel interpreted

this standard to require a showing of prejudicial harm to the artist’s reputation in relation to the

alteration of the specific work of art at issue in the case in order for the plaintiff to receive

damages.

417

In this case, the court considered the prejudicial harm to the plaintiff’s reputation

associated with a particular unfinished installation that the museum had modified.

418

The Office

agrees with the interpretation of this right by the court in MASS MoCA, specifically that the harm

to the artist’s reputation should be assessed in the context of the particular work at issue and not

the artist’s reputation concerning his or her entire oeuvre. Such an interpretation is consistent

with VARA’s general focus on particular works.

419

(b) Definition of ”Work of Recognized Stature”

As stated above, VARA grants the artist the right to “prevent any destruction of a work of

recognized stature.”

420

Despite its legal significance, the term “recognized stature” is not defined

in the statute. However, the VARA bill as introduced in the House in 1989 addressed the concept

of protecting against the destruction of works of recognized stature and included the following

language:

In determining whether a work is of recognized stature, a court or other trier of

fact may take into account the opinions of artists, art dealers, collectors of fine

art, curators of art museums, conservators, and other persons involved with the

creation, appreciation, history, or marketing of works of visual art. Evidence of

commercial exploitation of a work as a whole, or of particular copies, does not

preclude a finding that the work is a work of recognized stature.

421

This language was omitted from the bill during markup, as the House Committee on the

Judiciary sought to avoid “a battle of expert witnesses” and increased litigation that they

predicted would have resulted from this definition.

422

Thus, absent statutory text or direct

416

H.R. REP. NO. 101-514, at 15–16 (1990).

417

See Mass. Museum of Contemporary Art Found., Inc. (“MASS MoCA”) v. Büchel, 593 F.3d 38, 53–54 (1st Cir. 2010). See

also 3 NIMMER ON COPYRIGHT § 8D.06[C][1][c] (noting that “an intentional and prejudicial mutilation is an integrity

violation, remediable through not only an injunction, but damages as well”).

418

See MASS MoCA, 593 F.3d at 42–46.

419

See H.R. REP. NO. 101-514, at 15 (1990) (quoting 1989 VARA Hearing at 106 (written statement of John B. Koegel, Esq.)

(“An artist’s professional and personal identity is embodied in each work created by that artist. Each work is a part of

his/her reputation. Each work is a form of personal expression . . . .”)).

420

17 U.S.C. § 106A(a)(3)(B).

421

H.R. 2690, 101st Cong. § 3 (as introduced in the House, Jun. 20, 1989).

422

H.R. REP. NO. 101-514, at 15 (1990).

U.S. Copyright Office Authors, Attribution, and Integrity

legislative history, courts were left to develop a workable standard on their own, and despite

Congress’ intentions, such battles have occurred.

The district court in Carter v. Helmsley-Spear, Inc. formulated a test that the art must be

(1) meritorious and (2) recognized by art experts and other members of the artistic community as

such.

423

The Seventh Circuit in Martin v. City of Indianapolis accepted letters, articles, and awards

as evidence of recognized stature.

424

More recently, in Cohen v. G & M Realty L.P. (“5Pointz II”),

425

a jury found 45 out of 49 graffiti works to be works of recognized stature based on the artistic

recognition of the works outside of the graffiti site, the art world’s academic and professional

interest in the works, and the skill and craftsmanship inherent in the works.

426

The 5Pointz II

court found that the testimony of the defendants’ expert was flawed as an “unduly restrictive

interpretation of recognized stature that was more akin to a masterpiece standard.”

427

Generally, the courts have focused their inquiries on whether the work itself, not the artist,

has achieved recognized stature.

428

In Scott v. Dixon, the court found that while the artist had

“achieved some level of local notoriety,” the work, a swan sculpture installed in the backyard of a

property, had not achieved “recognized stature” as it had never been publicly exhibited but only

privately displayed.

429

Questioning this judicially developed standard, one commenter in the

Office study pointed out that the statute does not explicitly require public display in order to

achieve “recognized stature.”

430

One commenter suggested that the “judicial application of the [recognized stature

requirement 17 U.S.C. 106A(a)(3)(A)] has been overly restrictive and has thwarted fulfillment of

423

Carter I, 861 F. Supp. at 325 (considering VARA claim for a sculpture installed in the lobby of a commercial building),

aff’d in part, vacated in part, reversed in part on other grounds, 71 F.3d 77 (2d Cir. 1995).

424

Martin v. City of Indianapolis, 982 F. Supp. 625, 630–31 (S.D. Ind. 1997) (considering VARA claims in response to the

city destroying a large outdoor stainless steel sculpture).

425

Cohen v. G & M Realty L.P. (“5Pointz”), 320 F. Supp. 3d 421 (E.D.N.Y. 2018) (“5Pointz II”) (holding that aerosol artwork

on long-standing walls qualified as works of recognized stature subject to VARA protection).

426

Id.

427

Id. at 439 (referring to the defendants’ expert testimony relying heavily on academic databases and her narrow search

on social media that did not include the films, television, newspaper articles, blogs, online videos, and “social media

buzz” that featured the 5Pointz works).

428

See, e.g., Scott v. Dixon, 309 F. Supp. 2d 395, 400 (E.D.N.Y. 2004) (“[I]t is the artwork that is the subject of the litigation

that must have acquired this stature.”). But see Cohen v. G & M Realty L.P. (“5Pointz”), No. 13-CV-5612, 2017 WL

1208416, at *3 (E.D.N.Y. Mar. 31, 2017) (noting a legal basis for focusing on the “recognized stature” of the artist rather

than the work itself).

429

Scott, 309 F. Supp. 2d at 400–01.

430

See Art Law Committee of the New York City Bar Association, Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 5 (Mar. 27, 2017) (“NY Bar Association Initial Comments”).

U.S. Copyright Office Authors, Attribution, and Integrity

the statute’s objectives.”

431

Specifically, this commenter maintained that the recognized stature

standard is too narrow, especially in the context of public art (e.g., murals, large-scale sculptures)

where the value of the art is rooted in the community where the art resides.

432

According to this

argument, the less established the artist and less relevant their work is to scholarly research, the

more attention should be given to the community’s opinion and not necessarily the expert’s as “the

preservative aims of the recognized stature provision should not be undercut by an inflexible

dependence on a scholarly consensus of aesthetic importance.”

433

The Copyright Office finds that the recent interpretation of “recognized stature” by the

court in 5Pointz II potentially addresses some of these concerns regarding the exclusion of certain

types of art.

434

Instead of focusing solely on the scholarly merits of the work, the 5Pointz II court

considered the graffiti works at 5Pointz within the appropriate community and context for that

particular medium.

435

Moreover, the Office finds persuasive the assessment that the prevailing

judicial interpretation of “recognized stature” is too narrow. For example, the court’s test for

“recognized stature” in Carter v. Helmsley-Spear, Inc., that the art must be “meritorious,” appears

to contradict the long-standing policy shared by the courts and the Copyright Office to avoid

assessing the aesthetic merits of art.

436

The Carter standard is also susceptible to excluding types

of art that may not qualify as traditional fine art or may not have received sufficient scholarly

attention and analysis. Similarly, the Office also has concerns with the tendency of some courts to

rely solely on scholarly consensus to assess a work’s status. The Office, instead, agrees with the

proposed standard that the courts should also consider the local community’s relationship with

the artwork as a determination of the work’s “recognized stature.” Other factors besides the

aesthetic merits or scholarly treatment may be more indicative of a work’s “recognized stature,”

depending on the type of work at issue and the particular community in which it is present. This

interpretation reflects the justification the House Committee on the Judiciary provided in the

431

Id. at 1.

432

See id. at 5 (“The recognized stature of such a localized work may not be primarily aesthetic in nature at all; the work

may have become iconic for non-aesthetic reasons, or it may reflect the social concerns of the community in a way that

an acknowledged masterpiece may not.”).

433

Id. at 5.

434

The Office recognizes that the precedential value of this opinion is unclear at this early stage, based on the particular

“insolence” of the defendants and whether the recent opinion actually clarifies the statutorily undefined term of

“recognized stature” for other types of art. 5Pointz II, 320 F. Supp. 3d at 447 (“If not for Wolkoll’s insolence, these

damages would not have been assessed.”).

435

See 5Pointz II, 320 F. Supp. 3d at 438–39 (referring to the folios of the plaintiffs highlighting their career

accomplishments and the placement of works in various media).

436

See, e.g., Bleistein, 188 U.S. at 251–52 (“It would be a dangerous undertaking for persons trained only to the law to

constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious

limits.”); Esquire, 591 F.2d at 805 (“Neither the Constitution nor the Copyright Act authorizes the Copyright Office or

the federal judiciary to serve as arbiters of national taste.”); U.S. COPYRIGHT OFFICE, COMPENDIUM OF U.S. COPYRIGHT

OFFICE PRACTICES § 310.2 (3d ed. 2017), available at http://www.copyright.gov/comp3/docs/compendium.pdf.

U.S. Copyright Office Authors, Attribution, and Integrity

VARA report for not including the definition of “recognized stature” in the final version of the

bill. According to the report, the House Committee did not intend to require the artist to “prove a

pre-existing standing in the artistic community” as it “appreciate[d] that less well-known or

appreciated artists also have honor and reputations worthy of protection.”

437

The Copyright

Office thus finds that a broader interpretation of “recognized stature” that accounts for the

opinions of those beyond the academic community coincides with congressional intent to extend

VARA protection to a greater range of artistic works.

The Office recommends that Congress consider a statutory amendment to ensure that the

recognized stature provision in section 106A(a)(3)(B) supports the overall goals of VARA of

protecting the moral rights of visual artists and in turn, preserving their contributions to culture.

Consistent with these goals, the standard of recognized stature should reflect that the recognition

of a work of art can originate from outside the “fine arts” academy and instead from the local

community where the art resides. The recent case regarding the graffiti art at 5Pointz highlights

the significance of assessing the recognition of a work of art within the relevant community for

that particular medium.

438

Specifically, the Office recommends adding to subsection 106A(3)(B) the following

language from the California Art Preservation Act, modified to add reference to the opinions of

the relevant community:

437

H.R. REP. NO. 101-514, at 15 (1990). See also id. (“The deletion of this language is consistent with the fact that,

throughout history, many works now universally acknowledged as masterpieces have been rejected and often

misunderstood by the general public at the time they were created.”).

438

See, e.g., Peter A. Berry, Graffiti Artists Awarded $6.7 Million for Destruction of 5Pointz Murals in Queens, XXL (Feb. 14,

2018), http://www.xxlmag.com/news/2018/02/graffiti-artists-6-7-million-dollars-destruction-of-5pointz-murals-queens/

(“A group of New York City-based Graffiti artists have just secured a huge W for the culture.”); Alan Feuer, Brooklyn

Jury Finds 5Pointz Developer Illegally Destroyed Graffiti, N.Y. TIMES (Nov. 7, 2017),

http://www.nytimes.com/2017/11/07/nyregion/5pointz-graffiti-jury.html (explaining that the trial “explored the

question of whether graffiti, despite its transient nature, should be recognized as art”); Amanda Holpuch, 5 Pointz: New

York Graffiti Mecca Calls on Banksy for Help in Fight to Stay Alive, GUARDIAN (Oct. 18, 2017) (quoting 5Pointz curator Marie

Cecile Flageul at the start of the case as saying, “Either way, whatever happens, we’ve given talented artists a platform.

We’ve made history.”); Eileen Kinsella, Decrying Real Estate Developer’s ‘Insolence,’ Judge Awards Street Artists $6.7 Million

in Landmark 5Pointz Case, ARTNET NEWS (Feb. 12, 2018), http://news.artnet.com/art-world/judge-awards-6-million-

5pointz-lawsuit-1222394 (quoting 5Pointz attorney Eric Baum as saying, “Aerosol art has been recognized as fine art.”);

Lastplak Streetart (@lastplak), TWITTER (Feb. 15, 2018, 12:06 PM), http://twitter.com/lastplak/status/964229447766413314

(Graffiti and street art painters expressing congratulations to the artists in the 5Pointz case for the case outcome); Street

Art NYC, The Institute of Higher Burning, GOOGLE ARTS & CULTURE (2013), http://artsandculture.google.com/exhibit/

wRU6hVET (explaining the importance of 5Pointz in the culture of its neighborhood and the street art community).

But see Cathy Gellis, Court Destroys Future Public Art Installations by Holding Building Owner Liable for Destroying This

One, TECHDIRT (Feb. 22, 2018, 1:47 PM), http://www.techdirt.com/articles/20180219/11142039268/court-destroys-future-

public-art-installations-holding-building-owner-liable-destroying-this-one.shtml (arguing that the case is actually not a

win for graffiti artists as it may force them to change practices with respect to covering over each other’s’ work).

U.S. Copyright Office Authors, Attribution, and Integrity

In determining whether a work a work of visual art is of recognized stature, the

trier of fact shall rely on the opinions of artists, art dealers, collectors of fine art,

curators of art museums, and other persons involved with the creation or

marketing of art, as well as the opinion of the relevant community”

439

Such language may enable artists of public art or non-traditional art to show that their particular

work, which may not have qualified under a more academic focus, is of recognized stature within

the particular community related to that specific style of art. With this clarifying language, non-

traditional art and public art may qualify more easily as a work of “recognized stature.”

c) Duration

The rights granted by VARA belong to the author of the work and not the copyright

owner or the owner of the physical art object.

440

For works made after the effective date of VARA

(June 1, 1991), the integrity and attribution rights under VARA endure for the life of the artist.

441

For works created before June 1, 1991, the duration of VARA rights depends upon whether the

artist transferred title to the work. If the artist parted with title prior to June 1, 1991, then the

author does not have any rights under VARA.

442

If the artist created the work before June 1, 1991

but did not transfer title to the work prior to that date, then the artist’s VARA rights endure for a

term of life plus 70 years.

443

This particular provision has created certain inconsistencies regarding duration of

rights.

444

If an artist created a painting in 1985 (for which he did not transfer title before 1991) and

dies in 2005, then the copyright term and the artist’s rights of integrity and attribution for that

painting will last until 2075. However, if the artist created a painting in 1995 and died in 2005,

then the copyright term will last until 2075 but the rights of integrity and attribution would have

lasted for a shorter time, until 2005. The legislative history explains that the term of protection for

both works created before or after the enactment date “is consistent with current copyright terms

for economic rights.”

445

The drafters of VARA may have configured this inconsistent duration

provision in order to render the term for current works coextensive with the term for economic

439

See CAL. CIV. CODE § 987(f).

440

17 U.S.C. § 106A(e)(2).

441

17 U.S.C. § 106A(d)(1).

442

17 U.S.C. § 106A(d)(2). See Roberta Rosenthal Kwall, How Fine Art Fares Post VARA, 1 MARQ. INTELL. PROP. L. REV. 1,

24–26 (1997) (arguing that not applying VARA to previously created works whose titles had been transferred was the

result of Congress’ interest in avoiding frustrating the property interests and expectations of those who had bought

copies of VARA works prior to the effective date of the statute).

443

17 U.S.C. § 106A(d)(2) (stating that “the rights conferred by . . . shall be coextensive with, and shall expire at the same

time as, the rights conferred by section 106”).

444

See 3 NIMMER ON COPYRIGHT § 8D.06[E].

445

H.R. REP. NO. 101-514, at 18 (1990).

U.S. Copyright Office Authors, Attribution, and Integrity

rights at that time, while maintaining for future works that the moral rights under VARA are

personal to the author and thus should endure only for the life of that particular author. It is

unclear to the Office why Congress devised this particular inconsistency in duration that favors

the estates of artists who created works prior to VARA over the estates of artists who created

works since the enactment of VARA. Should Congress decide to take up the substantive VARA

recommendations in this Report, the Office also recommends that it address this apparent

inconsistency by adopting a uniform term.

d) Waiver

As the rights under VARA are personal rights of the artist, the artist may assert the

attribution and integrity rights even after transferring ownership of the copyright or the object.

While these rights are not subject to transfer, the artist may waive these rights in a written

instrument signed by the author. The instrument must identify the work and the uses of that

work to which the waiver applies.

446

The waiver applies only to the particular work and uses

outlined in the instrument. In the case of a joint work prepared by two or more authors, a waiver

of rights made by one author waives such rights for all authors.

447

But one joint author cannot

waive the other joint author’s VARA rights and thereby take sole credit for their joint work.

448

VARA directed the Copyright Office to conduct a study on the waiver of rights provision

and submit a report to Congress on the findings of the study and any recommendations, no later

than five years after the date of enactment.

449

In 1996, the Copyright Office submitted its final

report on the Office’s assessment of the impact of the waiver of moral rights provisions as

outlined in VARA.

450

The Copyright Office concluded that, because artists and art consumers are

generally unaware of moral rights, it could not make an accurate prediction on the impact of

VARA’s waiver provisions at that time.

451

However, the 1996 Report did make a number of

observations on the language and probable effect of VARA on a range of issues. The Office found

that VARA inappropriately permits one joint author to waive the moral rights of coauthors in a

joint work;

452

that VARA should be clarified regarding the specific uses to which waiver might

446

17 U.S.C. § 106A(e)(1).

447

Id.

448

See Grauer v. Deutsch, No. 01 CIV. 8672, 2002 WL 31288937, at *1 (S.D.N.Y. Oct. 11, 2002) (holding that an artist’s

display of copyrighted photographs with a claim of sole authorship did not amount to a waiver of the alleged co-

author’s right of attribution under VARA).

449

See Pub. L. No. 101-650, § 608, 104 Stat. 5128, 5132 (1990).

450

U. S. COPYRIGHT OFFICE, WAIVER OF MORAL RIGHTS IN VISUAL ARTWORKS (1996) (“WAIVER REPORT”). The Copyright

Office also submitted to Congress an Interim Report in 1992 that summarized responses to a Notice of Inquiry.

See id. at i.

451

WAIVER REPORT at xiii.

452

WAIVER REPORT at xvii, 192.

U.S. Copyright Office Authors, Attribution, and Integrity

apply,

453

especially since waiver language tends to be quite broad;

454

and that the public, artists,

and art purchasers need further education on VARA.

455

The study comments in response to the 2017 Notice of Inquiry addressed familiar issues

highlighted by the Office’s 1996 Report. Some commenters remarked on the general sense of

unfairness of one artist impacting the rights of another, particularly in the context of joint

authorship.

456

Specifically, the Kernochan Center stated that “it is unfair for artists of works of

visual art to be subject to waiver of their rights by a co-author. Any waiver of moral rights should

be effective only with respect to the particular author who signed the waiver.”

457

The Copyright Office finds persuasive the concerns raised in the comments concerning the

ability of one author to waive the rights of another joint author. Such a provision contradicts the

purpose of VARA to protect personal rights and is inconsistent with the statutory prohibition

against the transfer of those rights. As in the 1996 Report, the Copyright Office again

recommends that Congress amend this provision to provide that no joint author may waive

another’s statutory moral rights under VARA without the written consent of each joint author

whose rights would be affected by the waiver.

458

3. Section 1202 of Title 17

Section 1202 of title 17―enacted as part of the DMCA―prohibits the removal, alteration,

or falsification of certain categories of information regarding a copyrighted work.

459

Such

“copyright management information” (“CMI”) is defined in section 1202 to include a work’s title,

author, copyright owner, and terms and conditions of use; performers in non-audiovisual works;

453

WAIVER REPORT at xviii.

454

WAIVER REPORT at 180.

455

WAIVER REPORT at 186.

456

See Kernochan Center Initial Comments at 7; FMC Reply Comments at 6 (“Authors should be able to opt out of their

right of integrity, but not strip other authors of the same right.”).

457

Kernochan Center Initial Comments at 7.

458

See WAIVER REPORT at 192 (“The Office suggests that Congress amend this provision to provide that no joint author

may waive another’s statutory moral rights without the written consent of each joint author whose rights would be

affected.”).

459

This includes information relating to “[t]he title and other information identifying the work,” “[t]he name of, and

other identifying information about, the author of a work,” “[t]he name of, and other identifying information about, the

is fixed in a work other than an audiovisual work,” “the name of, and other identifying information about, a writer,

performer, or director who is credited in the audiovisual work,” “[t]erms and conditions for use of the work,”

“[i]dentifying numbers or symbols referring to such information or links to such information,” and “[s]uch other

information as the Register of Copyrights may prescribe by regulation.” 17 U.S.C. § 1202(c).

U.S. Copyright Office Authors, Attribution, and Integrity

and writers, performers, and directors credited in an audiovisual work.

460

To qualify as CMI

under the statute, the information must be “conveyed in connection with” copies or displays of

the work, “including in digital form”; information in a copyright notice can constitute CMI.

461

The Register of Copyrights is authorized to expand section 1202’s CMI definition by regulation.

462

The statute prohibits the attachment of false CMI, as well as the removal or alteration of CMI.

463

Both prohibitions require knowledge and intent in order to constitute a violation.

464

Specifically,

to be liable for providing false CMI or for the distribution or importation for distribution of false

CMI, a person must do so “knowingly and with the intent to induce, enable, facilitate, or conceal

infringement.”

465

Similarly, the removal or alteration of CMI and the distribution of works where

the CMI has been removed or altered violates section 1202 only if done with knowledge that such

action will “induce, enable, facilitate, or conceal” copyright infringement.

466

Congress noted that CMI aids in “indicating attribution, creation and ownership” of a

work, and that CMI plays an important role in “establishing an efficient Internet marketplace” by

tracking and monitoring copyright uses and facilitating licensing agreements.

467

These provisions

460

Id. The categories for performers, writers, and directors do not apply to public performances of works by radio and

television broadcast stations. CMI also includes “other information identifying” all categories as well as identifying

numbers or symbols that refer to such information. Id.

461

Id.

462

17 U.S.C. § 1202(c)(8). At least one commenter recommended that the Office “prescribe by regulation the inclusion of

names of creators―whether or not statutory authors―as CMI that can be protected under section 1202 if conveyed in

connection with copies of the work.” Kernochan Center Initial Comments at 8. Cf. Recording Academy Reply

Comments at 2–3 (suggesting that “[t]he definition of CMI could be expanded in a way that allows for the inclusion of

information about additional individuals involved in the making of a sound recording . . . including the songwriters,

the non-featured performers, and the producers and engineers”). The Copyright Office agrees that this regulatory path

could play an important role in the discussion and use of CMI. The Office may consider its legal authority to initiate

and adopt further regulations at a future date.

463

17 U.S.C. § 1202(a), (b).

464

Section 1202’s knowledge and intent requirements mirror those in the WCT and the WPPT. Both treaties require

member states to “provide adequate and effective legal remedies against any person knowingly performing any of the

following acts knowing, or with respect to civil remedies having reasonable grounds to know, that it will induce,

enable, facilitate or conceal an infringement of any right covered by this Treaty.” WCT art. 12(1); WPPT art. 19(1). The

knowledge conditions ensure that “mere inadvertent acts” are not prohibited. MIHÁLY FISCOR, THE LAW OF COPYRIGHT

AND THE INTERNET: THE 1996 WIPO TREATIES, THEIR INTERPRETATION AND IMPLEMENTATION 564 (2002). Congress enacted

section 1202 to implement the United States’ WCT and WPPT obligations, including the conditions that prohibited

activities are intentional, deliberate, and with the intent to induce, enable, facilitate, or conceal infringement. See S. REP.

NO. 105-190, at 34 (1998); H. REP. NO. 105-551, pt. 1, at 10–11 (1998).

465

17 U.S.C. § 1202(a).

466

17 U.S.C. § 1202(b).

467

S. REP. NO. 105-190, at 16 (1998).

U.S. Copyright Office Authors, Attribution, and Integrity

also provide a form of quasi-moral rights protection by effectively preserving the names of

authors, owners, and other creators in connection with their works.

468

The CMI protections in section 1202 implement in U.S. law protections required by in the

WIPO Copyright Treaty (“WCT”) and the WIPO Performances and Phonogram Treaty

(“WPPT”)―collectively known as the “WIPO Internet Treaties”―which created new obligations

concerning protections for what the treaties called “rights management information” or “RMI.”

469

The concept of RMI is one that was “largely unknown beforehand in national and international

law.”

470

RMI, as defined by the WIPO Internet Treaties, includes information that identifies the

work, the author, the owner, and any terms and conditions of the work’s use.

471

Such information

serves the purpose of connecting works to their authors; the WIPO Internet Treaties seek to

protect such connection against manipulation “by unauthorized third persons through deletion,

modification, and otherwise.”

472

As with CMI in the United States, commentators have noted that

the WIPO Internet Treaties’ protection for RMI serves as a potential means of protecting an

author’s moral rights, specifically the right of attribution.

473

While section 1202 defines the kind of information that qualifies as protected CMI, it does

not detail the form that CMI can take. Information that is used to identify works can come in

both analog and digital forms, and often takes the form of metadata. Metadata, literally defined

as “data about data,” is data created, stored, and shared to describe information, which can

include a work’s copyright or attribution information. A variety of organizations and registries

have established a range of techniques to attach identifying information to works and have also

created different types of metadata to embed information. These methods vary based on the

types of works, and authors can voluntarily use these means to connect their information to their

work.

468

See MIRA T. SUNDARA RAJAN, MORAL RIGHTS: PRINCIPLES, PRACTICE AND NEW TECHNOLOGY 27 (2011) (noting that digital

rights management, which identifies a work’s origin, supports the attribution right. It also “lends indirect support to

the integrity principle, by offering a measure of the authenticity of the source”).

469

The concept of “RMI” as articulated in the WIPO Internet Treaties is coextensive with the concept of “copyright

management information” or “CMI” as codified in section 1202 of the Copyright Act. As used herein, “RMI” refers to

the concept as articulated in the Internet Treaties, while “CMI” will be used when referencing the concept as articulated

in U.S. law.

470

SILKE VON LEWINSKI, INTERNATIONAL COPYRIGHT LAW AND POLICY ¶ 17.91, at 462 (2008) (“VON LEWINSKI”). See also

WCT art. 12; WPPT art. 19.

471

WCT art. 12(2); WPPT art. 19(2). While the Internet Treaties do not obligate member states to impose the use of RMI,

they do oblige members to “provide adequate and effective legal remedies against” the unauthorized “knowing”

removal of RMI and the exploitation of works with altered RMI. See WCT art. 12(1); WPPT art. 19(1).

472

VON LEWINSKI ¶ 17.99, at 465.

473

See J. Carlos Fernández-Molina & Eduardo Peis, The Moral Rights of Authors in the Age of Digital Information, J. AM.

SOC’Y FOR INFO. SCI. & TECH. 109, 112 (2001).

U.S. Copyright Office Authors, Attribution, and Integrity

a) Section 1202 Protections vis-à-vis the Right of Attribution

It is common practice in the digital world for CMI to be stripped from works,

disconnecting a work from its authorship and ownership information.

474

Initially, the stripping of

metadata from digital works was largely due to the fact that the narrow bandwidth of dial-up

connections prioritized smaller files with little or no metadata.

475

Abetting this tendency was a

proliferation of software programs aimed at website managers, such as Rainbow Software’s JPG

Cleaner, that promised to increase the speed at which a website could be loaded by stripping

metadata from JPEGs and other files.

476

Since the advent of broadband, with its larger bandwidth,

the barriers to allowing metadata to travel with a file have fallen. Unfortunately, the habits of the

dial-up era die hard, and automatically stripping attribution from works, leaving them un- or

mis-attributed, remains the norm.

477

Additionally, the persistence of metadata can vary greatly

depending upon the type of metadata system and online platform used. In one 2015 study of the

persistence of specific embedded metadata formats on various platforms it was shown that, while

some metadata formats were able to persist on certain social media sites, others were routinely

stripped off, depending upon the site.

478

As new technologies for affixing CMI to works develop,

so too do technological means for altering or removing CMI. Unless a highly sophisticated

method of attaching or embedding CMI is used, digital CMI and metadata can easily be removed

from digital files.

479

After the DMCA’s enactment, American scholars eager for statutory moral rights

protections beyond those provided by VARA saw promise in section 1202. The potential for a

creator to have a cause of action fot the removal or alteration of their identifying information

474

See Maria Schneider, Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at

2–3 (Mar. 19, 2017).

475

See, e.g., Low-Bandwidth Design, KNOWLEDGE MGMT. FOR DEV., http://wiki.km4dev.org/Low-Bandwidth_Design (last

updated Feb. 18, 2012) (advising that to create a website for low-bandwidth quality, strip the metadata from image

files).

476

See JPG Cleaner v2.6, RAINBOW SOFTWARE PROGRAMS, http://www.rainbowsoftware.org/progr ams.html#

JPG%20Cleaner (promising to remove “Texts such as File written by Adobe Photoshop, Creator: PolyView® Version 3.32 by

Polybytes, LEAD Technologies Inc. V1.01”).

477

Cf. Session 4, Symposium Transcript, 8 GEO MASON J. INT’L COM. L. at 92 (remarks of Yoko Miyashita, Getty Images)

(explaining the “right-click-copy-upload paradigm,” through which an image is “disconnected from the key

information that tells you who actually created that image”).

478

See Social Media Sites Photo Metadata Test Results, EMBEDDED METADATA MANIFESTO,

http://www.embeddedmetadata.org/ social-media-test-results.php (showing that, while Exif metadata persisted on

Pinterest and Tumblr, IIM and XMP metadata was stripped off on Tumblr, and Exif, IIM, and XMP metadata were

stripped off on Twitter and Flickr).

479

See British Photographic Council, Comments Submitted in Response to U.S. Copyright Office’s Apr. 24, 2015, Notice

of Inquiry (Visual Works Letter) at 1 (July 9, 2015); Pat Thomas, Comments Submitted in Response to U.S. Copyright

Office’s Apr. 24, 2015, Notice of Inquiry (Visual Works Letter) at 1 (July 9, 2015).

U.S. Copyright Office Authors, Attribution, and Integrity

“contain[ed] the seeds of a more general attribution right.”

480

While VARA does provide an

explicit right of attribution, its applicability is “very narrow,”

481

only covering certain visual

works authors.

482

Section 1202, however, is not limited to a specific category of work, therefore

creating “better [attribution] protection[]” for other creators.

483

Some commenters noted that

section 1202’s provisions “are far more robust than those which exist in countries with national

moral rights protections” because violations are subject to actual and statutory damages.

484

Since

section 1202’s enactment in 1998, authors and rightsholders have relied on its benefits when

enforcing their attribution rights in court in increasing numbers every year.

485

Additionally, while

the applicability of the provision to analog as well as digital works was initially questioned, such

applicability is now well-settled. At the same time, the body of case law interpreting section 1202

remains relatively contained; some of those decisions are discussed below.

b) Applicability to Analog as Well as Digital CMI

From an attribution standpoint, authorship information can be attached to a work in both

analog and digital form—from a painter’s hand drawn signature on her mural to a wedding

photographer’s watermark on his photographs. However, early courts reviewing the contours of

480

Jane C. Ginsburg, Have Moral Rights Come of (Digital) Age in the United States?, 19 CARDOZO ARTS & ENT. L.J. 9, 11

(2001) (“Ginsburg, (Digital) Age”) (“Inclusion of the author’s name in protected copyright management information

suggests that the copyright law finally affords authors of all works, not just ‘works of visual art,’ a right to recognition

of their authorial status.”). See also ROBERTA ROSENTHAL KWA LL , THE SOUL OF CREATIVITY: FORGING A MORAL RIGHTS LAW

FOR THE UNITED STATES 26 (2010) (“KWAL L, SOUL OF CREATIVITY”) (pointing out that section 1202’s CMI provisions

“included a de facto right of attribution”); Eric Schlachter, The Intellectual Property Renaissance in Cyberspace: Why

predating the DMCA, to introduce statutory CMI provisions “represent[s] an important step toward the recognition of

the right of attribution in the United States”).

481

Session 2, Symposium Transcript, 8 GEO. MASON J. INT’L COM. L. AT 34 (remarks of Mickey Osterreicher, National Press

Photographers Association).

482

VARA’s protections apply to authors of works of visual art, as defined by 17 U.S.C. § 101.

483

Session 2, Symposium Transcript, 8 GEO. MASON J. INT’L COM. L. at 35 (remarks of Mickey Osterreicher, National Press

Photographers Association).

484

CCIA Initial Comments at 2. Title 17’s section 1203 allows actual and statutory damages for section 1202 violations.

See 17 U.S.C. § 1203(c).

485

When Shepardizing “17 U.S.C. 1202” in Lexis, the number of citing cases was 338 through the end of 2018, with the

number of such cases rising each year. See https://advance.lexis.com/shepards/shepardspreviewpod/

?pdmfid=1000516&crid=143007de-6a08-4bb2-96e5-338c578bd5fe&pdshepid=urn%3AcontentItem%3A805F-T9K1-2NSD-

P0CK-00000-00&pdshepcat=initial&ecomp=v311k&prid=f3eb631e-f07e-4e55-862f-48e6455b2157. In 2018 there were 53

cases alleging a violation of section 1202; additionally, many of these cases pair section 1202 claims with traditional

?pdmfid=1000516&crid=ecb6b79f-4cb8-458c-b258-003abd14a11f&pdshepid=urn%3AcontentItem%3A805F-T9K1-2NSD-

P0CK-00000-00&pdshepcat=initial&ecomp=v311k&prid=f3eb631e-f07e-4e55-862f-48e6455b2157.

U.S. Copyright Office Authors, Attribution, and Integrity

section 1202 declined to apply it to analog attribution information, instead finding that it only

applied to CMI that was digital or part of an “automated copyright protection or management

system.” For instance, in 2006, the court in IQ Group v. Wiesner Publishing, LLC. was tasked with

deciding whether the defendant’s removal of plaintiff’s logo and hyperlink in an email

advertisement and replacement with information directing users to the defendant’s website was a

violation of section 1202.

486

The court found that there was no violation because the logo and

hyperlink were not considered CMI under section 1202. Acknowledging that the statutory text

appears to define CMI “quite broadly,” the court nonetheless determined that the section should

be read narrowly in light of its legislative history.

487

The court understood the section to protect

“copyright management performed by the technological measures of automated systems,” not

“copyright management performed by people.”

488

As such, it held that to be construed as CMI

under section 1202, “the information removed must function as a component of an automated

489

Likewise, the court in Textile Secrets International, Inc. v. Ya-Ya Brand Inc. held that a non-

digital copyright notice and a tag indicating ownership on the plaintiff’s fabric design did not

constitute CMI under section 1202.

490

As the IQ Group court did, the court relied on legislative

history to determine that the provision applies to circumstances that are related to “the Internet,

electronic commerce, automated copyright protections or management systems, public registers,

or other technological measures or processes.”

491

Because the plaintiff did not use any

technological process to place the notice or tag on the fabric, and because the defendant did not

use any technological process to remove the information, section 1202 was not triggered.

492

While the IQ Group and Textile Secrets courts’ section 1202 analyses require a technological

or electronic aspect, the more recent judicial trend has been to read the statute more broadly. In

fact, many courts have looked to the provision’s plain language to explicitly reject the

requirement that CMI include a digital or technological component. While the WIPO Internet

486

409 F. Supp. 2d 587, 591 (D.N.J. 2006).

487

IQ Grp. v. Wiesner Publ’g, LLC, 409 F. Supp. 2d 587, 597 (D.N.J. 2006). The court examined the evolution of section

1202 through an analysis of the WIPO Internet Treaties, the U.S. Working Group on Intellectual Property Right’s 1995

“White Paper,” and statements given in section 1202’s legislative history. Id. at 593-97.

488

Id. at 597. The court concluded that there was no evidence that plaintiff intended for an automated system to use the

logo or hyperlink to manage copyrights, that the logo or hyperlink actually did manage copyrights, nor that

defendant’s actions impeded the effective functioning of an automated copyright protection system. Id.

489

Id. at 597.

490

524 F. Supp. 2d 1184, 1202 (C.D. Cal. 2007).

491

Te xtil e S ecret s In t’ l, I nc. v. Ya -Ya Brand Inc., 524 F. Supp. 2d 1184, 1201 (C.D. Cal. 2007).

492

Id. at 1201–02. But see Fox v. Hildebrand, No. CV 09-2085, 2009 WL 1977996, at *3 (C.D. Cal. July 1, 2009) (a more

recent decision from the District Court for the Central District of California, finding “[t]he plain language of the statute

indicates that the DMCA provision at issue is not limited to copyright notices that are digitally placed on a work”).

U.S. Copyright Office Authors, Attribution, and Integrity

Treaties’ protections specifically extend to “electronic rights management information,”

493

the

language of section 1202 does not so limit its protections. In fact, section 1202’s CMI definition

notes that it applies to the specified information, “including in digital form.”

494

The “including in

digital form” qualifier leads to an understanding that 1202 applies to both digital and non-digital

information.

495

Second, when Congress enacted section 1202, it clarified that although “CMI in

digital form is expressly included” in the provision, “CMI need not be in digital form.”

496

This understanding is reflected in Associated Press v. All Headline News Corp., which

considered whether the removal of authorship and ownership information from news stories

violated section 1202.

497

Addressing the defendant’s reliance on IQ Group, the court noted there

was “no textual support” for limiting the provision to “technological measures of automated

systems” and concluded that section 1202 was not limited to digital information or automated

498

Similarly, several other courts have criticized the earlier decisions’

reliance on legislative history when the statute’s plain meaning clearly and unambiguously does

not require CMI to “function as a component of an automated copyright protection or

management system.”

499

Courts applying this line of reasoning have interpreted section 1202 to

protect a copyright notice encoded as a hotlink to a photographer’s website, a photographer’s

name and username on the same webpage as his photographs, and an analog credit line on the

back of a record album jacket, among others.

500

The highest court to consider the scope of section

1202’s CMI definition was the Third Circuit in Murphy v. Millennium Radio Group LLC.

501

There,

the defendant scanned the plaintiff’s photograph and cut off the credit identifying the plaintiff as

the author.

502

Once again, the court rejected the defendant’s argument that section 1202 applied

only to automated copyright protection systems, and held that the literal reading of the statute

493

See WCT art. 12(1); WPPT art. 19(1).

494

17 U.S.C. § 1202(c).

495

See Jane C. Ginsburg, Moral Rights in the U.S.: Still in Need of a Guardian Ad Litem, 30 CARDOZO ARTS & ENT. L.J. 73, 75

(2012) (“Ginsburg, Guardian Ad Litem”) (“The specification of ‘including in digital form’ clearly means that information

not in digital form is also covered.”).

496

S. REP. NO. 105-190, at 16 (1998).

497

608 F. Supp. 2d 454 (S.D.N.Y. 2009).

498

Associated Press v. All Headline News Corp., 608 F. Supp. 2d 454, 462 (S.D.N.Y. 2009).

499

Cable, 728 F. Supp. 2d at 980.

500

See, e.g., Leveyfilm Inc. v. Fox Sports Interactive Media, 999 F. Supp. 2d 1098, 1102 (N.D. Ill. 2014); Morel, 769 F. Supp. 2d

at 304–05; Cable, 728 F. Supp. 2d at 981.

501

Note that the Third Circuit Court of Appeals encompasses the District Court for the District of New Jersey, which

decided IQ Group.

502

See Murphy v. Millennium Radio Grp. LLC, 650 F.3d. 295, 299 (3d Cir. 2011).

U.S. Copyright Office Authors, Attribution, and Integrity

should control.

503

As such, even manual removal of credits that are not digitally embedded in a

work would render a defendant liable under section 1202.

504

c) Challenges Applying Section 1202 to Moral Rights Protections

While section 1202 is increasingly relied upon by litigants trying to protect their

attribution rights, some have pointed to its “limited firepower . . . in the moral rights arsenal.”

505

Although it does establish a cause of action for attachment of false CMI as well as CMI alteration

or removal in some situations, it does not create the right to be credited in the first

place―something that many creators view as a shortcoming.

506

Others have pointed out that

section 1202’s knowledge requirements, as well as its inapplicability to creators who do not own a

507

(1) No Right to Be Credited

Section 1202’s protections extend only to CMI that is already attached to a work. They do

not require the inclusion of CMI; in other words, nothing in section 1202 affirmatively requires

that an author be credited. Apprehensive about the prospect of a federal attribution right being

established through mandated CMI, some in the creative industries have voiced concerns about

the burdens such a requirement might create. For example, the Recording Industry Association

of America (“RIAA”) suggested that requiring attribution for sound recordings would have

“significant unintended consequences” to digital platforms.

508

According to the RIAA, platforms

may need to undertake “costly changes” to their user interface and their metadata feeds in order

to provide attribution for the myriad of players involved in creating a sound recording.

509

Streaming services could encounter difficulties collecting attribution information for “the millions

of recordings already in [their] repertoire,” and would have to determine how to provide and

display the information “for every contributor to every sample in every recording in [their]

catalog[s].”

510

503

See id. at 305 (“Defendants are essentially asking us to rewrite § 1202 to insert a term—that is, ‘automated copyright

protection or management system’—which appears nowhere in the text of the DMCA and which lacks a clear

definition. We would need compelling justification indeed to adopt such a statutorily-unmoored interpretation.”).

504

Id. at 304–05.

505

Ginsburg, Guardian Ad Litem, 30 CARDOZO ARTS & ENT. L.J. at 74.

506

See e.g., Authors Guild Initial Comments at 4; FMC Reply Comments at 7.

507

Authors Guild Initial Comments at 4–5; NWU-SFWA Joint Initial Comments at 6.

508

RIAA Reply Comments at 3.

509

Id. at 4.

510

Id. at 5. Subsequently the RIAA, along with the Artist Rights Alliance, SAG-AFTRA, and A2IM, announced a new

collaboration to build “a more robust and effective system of digital attribution and credits.” Press Release, Recording

U.S. Copyright Office Authors, Attribution, and Integrity

In response, songwriters criticized the apparent prioritization of “the inconvenience of

dealing with accurate metadata over the principle of protection of the rights of the people upon

whose work the music business is built.”

511

Indeed, three streaming services have subsequently

announced intentions to add songwriter, producer, and musician credits as metadata to the songs

they stream.

512

Additionally, Google announced in September of 2018 that it will henceforth

include creator, credit, and copyright notice metadata to the photographs it displays on Google

Images.

513

Of course, none of these initiatives are mandated by section 1202, but once the musical

and photographic metadata is added, section 1202 does protect against its alteration or removal

under certain circumstances. Some in the songwriting community have not advocated for

mandatory CMI, but instead emphasize section 1202’s role as a “useful, if not indispensable,

tool[]” in achieving accountability from the internet.

514

These songwriters argue that the focus

should be on encouraging the full music community to “harness and protect” “[a]ccurate

metadata.”

515

Other creators have noted that the statutory definition of CMI could benefit from

expansion to cover certain types of metadata as well as other creators who are not regularly

credited.

516

While the increase in voluntary provision of metadata for sound recordings and

photographs on major platforms is a positive development, it is not apparent that making such

actions generally mandatory is advisable at this time. Section 1202, along with Chapter 12 in

general, is focused on protecting copyright protection and management systems that are attached

to works voluntarily, and it is a significant step from protecting such systems to requiring their use

Indus. Ass’n of America, Music Community Calls for Building a Better Digital Attribution and Credits System (Mar. 14,

2019), available at https://www.riaa.com/music-community-calls-building-better-digital-attribution-credits-system/.

511

Songwriters Protest ‘Moral Rights’ Issue to RIAA, BRITISH ACAD. SONGWRITERS, COMPOSERS & AUTHORS (Aug. 1, 2017),

http://basca.org.uk/2017/08/16/songwriters-protest-moral-rights-issue-riaa (“Songwriters Protest”).

512

See Press Release, TIDAL, TIDAL’s Album and Track Info Feature Offers Detailed Artist Credits And Descriptions

For Millions of Albums And Tracks (Nov. 3, 2017), available at http://www.prnewswire.com/news-releases/tidals-album-

and-track-info-feature-offers-detailed-artist-credits-and-descriptions-for-millions-of-albums-and-tracks-300549024.html;

Spotify (Finally) Adds Songwriter and Producer Credits, VARIETY (Feb. 2, 2018), http://variety.com/2018/digital/news/spotify-

adds-songwriter-and-producer-credits-1202684818; Andy Malt, YouTube to Launch Music Streaming Service Next Week,

Adds Credits to Music Videos, COMPLETE MUSIC UPDATE (May 17, 2018),

http://www.completemusicupdate.com/article/youtube-to-launch-music-streaming-service-next-week-adds-credits-to-

music-videos/. But see Marc Hogan, Don’t Give Spotify Too Much Credit for Adding Credits, PITCHFORK (Feb. 5, 2018),

http://pitchfork.com/thepitch/dont-give-spotify-too-much-credit-for-adding-credits.

513

See Paul Sawers, Google Images Will Now Display Creator and Copyright Metadata, VENTUREBEAT (Sept. 27, 2018, 8:21

AM), https://venturebeat.com/2018/09/27/google-images-will-now-display-creator-and-copyright-metadata.

514

Songwriters Protest, http://basca.org.uk/2017/08/16/songwriters-protest-moral-rights-issue-riaa.

515

Id.

516

See FMC Reply Comments at 7 (noting that session musicians and sound engineers are not covered by section 1202);

see also Songwriters Protest, http://basca.org.uk/2017/08/16/songwriters-protest-moral-rights-issue-riaa (recommending

that the categories in the ID3v2 metadata tag be included in the section 1202 definition of CMI).

U.S. Copyright Office Authors, Attribution, and Integrity

in the first place. There are also a number of factors that would have to be thought through, such

as the impact on anonymous and pseudonymous works, who would bear the burden of applying

such systems (individual authors? distribution platforms?), and how to effectively police the

requirement.

That said, the 2018 Orrin G. Hatch-Bob Goodlatte Music Modernization Act (“MMA”)

includes many provisions addressing the collection, usage, and sharing of metadata related to

digital music, as part of a broad overhaul of the section 115 “mechanical” license. The MMA

creates a blanket license available for digital services engaging in the reproduction and

distribution of digital phonorecord deliveries (“DPDs”), to be administered by a mechanical

licensing collective (“MLC”). To facilitate payment to copyright owners for uses made under the

blanket license, the MLC will work to identify musical works embodied in particular sound

recordings, and the copyright owners of such musical works.

517

Further, the MLC will establish

and maintain a publicly available database containing relevant information related to these

musical works, musical work copyright owners, and sound recordings.

518

The MMA details

specific information to be included in the database, and vests the Copyright Office with authority

to prescribe additional categories by regulation.

519

To populate this database, it requires digital

music providers to provide detailed usage reports identifying metadata on the sound recordings

and embodied musical works they stream or download.

520

As part of this process, these providers

must engage in “good-faith, commercially reasonable efforts” to collect a variety of sound

recording information, and the Copyright Office may also promulgate regulations related to the

information included on these usage reports.

521

Separately, musical work copyright owners listed

in the MLC’s database must engage in commercially reasonable efforts to provided updated

sound recording information to improve the database quality.

522

517

17 U.S.C. § 115(d)(3)(C)(III).

518

17 U.S.C. §§ 115(d)(3)(E); 115(d)(3)(C)(IV).

519

17 U.S.C. § 115(d)(3)(E)(III).

520

See 17 U.S.C. § 115(d)(4)(A)(ii)(I)(aa) (requiring digital music providers to provide, as part of their usage reports,

“identifying information for the sound recording, including sound recording name, featured artist, and, to the extent

acquired by the digital music provider in connection with its use of sound recordings of musical works to engage in

covered activities, including pursuant to subparagraph (B), sound recording copyright owner, producer, international

standard recording code, and other information commonly used in the industry to identify sound recordings and

match them to the musical works the sound recordings embody”); see also 17 U.S.C. § 115(d)(4)(A)(ii)(I)(bb) (requiring

digital music providers to “provide information concerning authorship and ownership of the applicable rights in the

musical work embodied in the sound recording (including each songwriter, publisher name, and respective ownership

share) and the international standard musical work code,” “to the extent acquired by the digital music provider in the

metadata provided by sound recording copyright owners or other licensors of sound recordings”).

521

17 U.S.C. § 115(d)(4)(A)(ii); (B).

522

17 U.S.C. 115(d)(3)(E)(IV).

U.S. Copyright Office Authors, Attribution, and Integrity

In addition to the attribution aspects of the MMA, the Copyright Office believes it is

important for government to encourage voluntary initiatives that work towards full attribution

for authors on the internet.

(2) Difficult to Prove Knowledge Requirement

Section 1202 neither mandates the inclusion of CMI on works, nor penalizes the mere

removal of attribution information.

523

Instead, the removal, falsification, or alteration of CMI is

only actionable under 1202 if a fairly stringent dual intent standard is satisfied. This standard is

phrased slightly differently depending upon the action. To be liable for providing, distributing,

or importing false CMI, the defendant must know that the CMI is false, and their actions must be

done with the “intent to induce, enable, facilitate, or conceal infringement.”

524

Liability for the

removal or alteration of CMI similarly requires that the actor intentionally remove the

information, or distribute or import works knowing that the CMI has been removed or altered

without the rightsholder’s authorization.

525

However, instead of the “intent” standard for false

CMI, these actions must be done with the knowledge that the removal or alteration will induce,

enable, facilitate, or conceal copyright infringement.

526

The purpose of the dual intent standard is to both fulfill the United States’ international

obligations and provide a safeguard against inadvertent violations. Initially, in 1995, the United

States Government recommended amending the U.S. Copyright Act to protect CMI associated

with a work in order to protect the public from false information and to facilitate licensing

agreements.

527

Its proposal included a knowledge requirement to prevent violations caused by

inadvertent falsifications, alterations, or removals, but notably, it did not contain the requirements

that the action be done with the intent to cause copyright infringement or with the knowledge

that it will facilitate infringement.

528

Preliminary drafts of the WCT and the WPPT’s RMI

provisions were similar to the United States’ proposal in that they only included the single initial

knowledge requirement.

529

During the course of negotiations, parties raised concerns that the

523

See S. REP. NO. 105-190, at 16–17 (1998).

524

17 U.S.C. § 1202(a).

525

17 U.S.C. § 1202(b).

526

Id. With respect to criminal remedies, the requisite standard is “knowledge,” and with respect to civil remedies, the

requisite standard is “reasonable grounds to know.” Id.

527

See BRUCE A. LEHMAN, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE REPORT ON THE

WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS 235–36 (1995) (“LEHMAN”).

528

See LEHMAN at 249–50, app. 1 at 6–7. The proposal prohibited the knowing provision, distribution, and importation

of false CMI as well as the knowing removal or alteration of CMI, the knowing distribution or importation of false CMI,

and the knowing distribution or importation of copies with false CMI. Id.

529

See WIPO, Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, Geneva, Dec. 2 to 20,

1996, Basic Proposal for the Substantive Provisions of the Treaty on Certain Questions Concerning the Protection of Literary and

Artistic Works to Be Considered by the Diplomatic Conference, art. 14, at 60, WIPO Doc. CRNR/DC/4 (Aug. 30. 1996),

U.S. Copyright Office Authors, Attribution, and Integrity

early RMI provisions’ scope was too wide and insufficiently defined.

530

They noted that if

violations were not linked to infringing acts then correction of inaccurate information, lawful

activities, activities concerning materials in the public domain, and authorized acts would be

prohibited.

531

Thus, many parties, including the United States, supported narrowing the two

provisions’ scope by attaching liability when the actions are done knowingly and with the

knowledge that they will induce or facilitate copyright infringement,

532

proposals that are

reflected in the final language of the WCT and the WPPT.

While the WIPO Internet Treaties were being negotiated, similar issues were concurrently

being discussed in the U. S. Bills to include a CMI provision in title 17 were introduced before the

WCT and the WPPT were concluded. These initial iterations of section 1202, based on the United

States government’s 1995 recommendation, included the initial knowledge requirement, but the

actor’s intent to cause or facilitate copyright infringement, or knowledge that their actions will do

so was not an element at that time.

533

The U.S. Copyright Office questioned whether this

approach was overly broad.

534

For example, the Office did not think that de minimis alterations,

changes that clarified or supplemented information, authorship and ownership disputes in joint

work or work made for hire situations, or good faith alterations should constitute violations.

535

available at http://www.wipo.int/edocs/mdocs/diplconf/en/crnr_dc/crnr_dc_4.pdf; WIPO, Diplomatic Conference on

Certain Copyright and Neighboring Rights Questions, Geneva, Dec. 2 to 20, 1996, Basic Proposal for the Substantive

Provisions of the Treaty for the Protection of the Rights of Performers and Producers of Phonograms to Be Considered by the

Diplomatic Conference, art. 23, at 96, WIPO Doc. CRNR/DC/5 (Aug. 30, 1996), available at

http://www.wipo.int/edocs/mdocs/diplconf/en/crnr_dc/crnr_dc_5.pdf.

530

See WIPO, Diplomatic Conference on Certain Copyright and Neighboring Rights Questions, Geneva, Dec. 2 to 20,

1996, Summary Minutes, Main Committee I, ¶ 530, at 79, WIPO Doc. CRNR/DC/102, (Aug. 26, 1997), available at

http://www.wipo.int/edocs/mdocs/diplconf/en/crnr_dc/crnr_dc_102.pdf (statement by the European Communities).

531

See id. ¶ 525, at 77–78, ¶ 541, at 81 (statements by the United States of America and the Chairman).

532

See id. ¶ 516, at 75, ¶ 525, at 77–78, ¶ 528, at 78, ¶ 529, at 79, ¶ 535, at 80, ¶ 536, at 80 (statements by the Chairman, the

United States of America, Singapore, the European Communities, the United Kingdom, and Australia).

533

See NII Copyright Protection Act of 1995, S. 1284, 104th Cong. § 4 (1995); NII Copyright Protection Act of 1995, H.R.

2441, 104th Cong. § 4 (1995). The proposed section 1202 in both bills mirrored the language in the U.S. government’s

1995 recommendation. The Administration stressed that the knowledge requirement protected against inadvertent

CMI falsification, alteration, and removal. See NII Copyright Protection Act of 1995: Joint Hearing on H.R. 2441 and S. 1284

Before the Subcomm. on Courts and Intellectual Prop. of the H. Comm. on the Judiciary and the S. Comm. on the Judiciary, 104th

Cong. 39 (1995) (“NII Joint Hearing”) (statement of Bruce A. Lehman, Assistant Secretary of Commerce and

Commissioner of Patents and Trademarks, U.S. Patent and Trademark Office).

534

See NII Joint Hearing at 52 (1995) (statement of Marybeth Peters, Register of Copyrights and Associate Librarian for

535

Similar concerns were raised by other stakeholders. See NII Joint Hearing at 190 (1996) (written statement of Richard

Robinson, Chairman, President, and CEO, Scholastic, Inc., on behalf of the Association of American Publishers) (raising

concerns over the potential “misapplication” of section 1202 and disputes over ghost writing, collaborative works,

pseudonymous works, as well as legitimate disputes over ownership or the right to exercise one or more exclusive

U.S. Copyright Office Authors, Attribution, and Integrity

After the United States signed the WIPO Internet Treaties, the CMI proposal before Congress was

revised to reflect the knowledge and intent standards found in the treaties.

536

This dual standard

satisfied the United States’ WCT and WPPT obligations and also resolved Office and stakeholder

concerns about section 1202’s breadth.

537

Some view the dual standard as creating “a significant impediment to many CMI claims”

because it can be difficult to prove, thus limiting its usefulness as a means to protect an author’s

attribution rights.

538

Under section 1202, plaintiffs must essentially prove that a defendant was (1)

expressly contemplating copyright infringement when (2) knowingly misattributing a work or

removing CMI.

539

Although a plaintiff is not required to show actual infringement to prove

intent, the fact that there is none may be relevant to some courts’ intent determination.

540

In some cases, plaintiffs have failed to prevail on their section 1202 claims because they

lacked evidence of the defendant’s required mental state.

541

In one recent case, Stevens v.

rights); id. at 432 (written statement of members of the Digital Future Coalition) (noting concerns that the draft

provision’s reach was “overly-broad” and would cause hardship and expense to innocent actors, such as a wholesaler

who receives a shipment of digital copies and knows that the copyright ownership has been transferred, in which case

Digital Future Coalition noted that the wholesaler would be “flatly prohibited” from redistributing the copies unless it

changed the CMI.).

536

See WIPO Copyright Treaties Implementation Act, H.R. 2281, 105th Cong. § 3 (1997) (as introduced in the House, July

29, 1997).

537

See WIPO Copyright Treaties Implementation Act; and Online Copyright Liability Limitation Act: Hearing on H.R. 2281 and

H.R. 2280 Before the Subcomm. on Courts and Intellectual Prop. of the H. Comm. on the Judiciary, 105th Cong. 51–52 (1997)

(“WCT Implementation Hearing”) (written statement of Marybeth Peters, Register of Copyrights, Copyright Office of the

United States, Library of Congress) (“We believe that the knowledge and intent standards resolve the concerns we

expressed in 1995 about the prohibition’s scope of coverage. They ensure that no one will be liable who deletes, alters

or provides inaccurate information for legitimate reasons, such as technological constraints or a good faith belief that he

or she has the right to do so.”); id. at 221 (written statement of Michael K. Kirk, Executive Director, American

Intellectual Property Law Association) (pointing out that the addition of an intent requirement along with the

knowledge requirement “adequately addresses the concerns about the possibility of creating liability by innocent

distribution of copies containing false copyright management information”).

538

Jane C. Ginsburg, Keynote Address, The Most Moral of Rights: The Right to be Recognized as the Author of One’s Work, 8

GEO. MASON J. INT’L COM. L. 44, 63 (2016). See also Pilch Initial Comments at 3 (“The issue of knowledge, and the

advantage of not having knowledge, is problematic.”).

539

See Greg Lastowka, Digital Attribution: Copyright and the Right to Credit, 87 B.U. L. REV. 41, 73 (2007) (“[T]he burden of

showing a culpable mental state on the part of the defendant is a heavy burden for any plaintiff.”).

540

See Steele v. Bongiovi, 784 F. Supp. 2d 94, 98 (D. Mass. 2011) (finding that since an earlier court did not find copyright

infringement, plaintiff “cannot prove that defendants knew the alterations would facilitate copyright infringement

[under section 1202(b)]”).

541

See, e.g., Gordon v. Nextel Commc'ns, 345 F.3d 922, 923, 926-27 (6th Cir. 2003); Ward v. Nat'l Geographic Soc'y, 208 F.

Supp. 2d 429, 450 (S.D.N.Y. 2002); Kelly v. Arriba Soft Corp., 77 F. Supp. 2d 1116, 1122 (C.D. Cal. 1999). But see Michael

Grecco Prods., Inc. v. Alamy, Inc., No. 18-CV-3260, 2019 WL 1129432, at 6 (E.D. N.Y. Mar. 12, 2019) (denying defendant’s

U.S. Copyright Office Authors, Attribution, and Integrity

CoreLogic, a group of real estate photographers sued a software company for violating section

1202(b).

542

CoreLogic, the software company, provided services to Multiple Listing Services,

including preparing real estate photographs for internet searching.

543

When preparing

photographs, CoreLogic’s software automatically deleted background metadata such as EXIF and

IPTC in order to reduce storage size.

544

The Ninth Circuit, affirming the district court, found that

there was no evidence that CoreLogic possessed the “mental state of knowing, or having

reasonable basis to know, that [its] actions will induce, enable, facilitate, or conceal infringement,”

and thus ruled against the photographers.

545

Specifically, the court found that the photographers

failed to prove that CoreLogic demonstrated a “pattern of conduct” or “modus operandi” that

indicated that CoreLogic knew that the result of its actions would be infringement.

546

As part of

this inquiry, the court found it relevant that the photographers had never sought to use their

metadata as a way to police infringement, and that there was never alleged any actual

infringement as a result of CoreLogic’s distribution of the metadata-less photographs.

547

The Office finds the Ninth Circuit’s CoreLogic result troubling. It essentially requires that

not only must a section 1202 plaintiff prove intentional removal and distribution and prove that

this action was done with the knowledge that it will encourage infringement, but also that this

knowledge must be based on a “pattern of conduct” or “modus operandi,” a requirement not

present in the statute. Admittedly, proving that a defendant knows or has reasonable grounds to

know that an action “will”

548

cause or facilitate infringement is a relatively high bar. However,

the CoreLogic opinion raises this bar impermissibly high in the Office’s view. As the then-Register

of Copyrights explained in her testimony on the bill for what would become section 1202,

Some copyright owners have expressed concern that this standard will be too

difficult to meet, requiring proof of an ultimate infringement in order to find a

violation. The Copyright Office believes that it is important to make clear,

possibly in legislative history, the reference to infringement does not mean that

motion to dismiss 1202(a) claim on grounds that plaintiff’s allegations that “[d]efendant placed watermarks on the

Copyrighted Works in order to facilitate its continued marketing and sale of licenses” are sufficient to survive a motion

to dismiss); Batra v. PopSugar, Inc., No. 18-cv-03752, 2019 WL 482492, at *2 (C.D. Cal. Feb. 7, 2019) (denying defendant’s

motion to dismiss 1202(b) claim on grounds that there is a “plausible inference” that the removal of Instagram sidebars

containing identifying information was done “knowing that removing the CMI would help to conceal the alleged

infringement”).

542

899 F.3d 666 (9th Cir. 2018), cert denied, 586 U.S. __ (U.S. Feb. 19, 2019) (No. 18-878).

543

Id. at 670–71.

544

Id. at 671.

545

Id. at 673.

546

Id. at 675.

547

Id. at 676.

548

17 U.S.C. § 1202(b).

U.S. Copyright Office Authors, Attribution, and Integrity

the actor must have intended to further any particular act of infringement—just

to make infringement generally possible or easier to accomplish.

549

Note that CoreLogic appears to require more than general knowledge that infringement

will be “easier to accomplish.”

The specific issues with the CoreLogic opinion aside, many creators are frustrated that even

the intentional falsification and removal of CMI is not unlawful if they cannot prove that the

actions were either intended to encourage copyright infringement or done with the knowledge

that they would do so. Because stripping CMI is a regular occurrence, especially over social

media,

550

“it is nearly impossible to prove the intent of an individual social media user.”

551

Meeting the knowledge and intent thresholds can also be especially difficult for individual

authors who do not have the resources to engage in lengthy litigation.

552

As such, several creators

groups advocate removing or revising section 1202’s knowledge and intent requirements.

553

While the Office is very sympathetic to these legitimate concerns, section 1202’s dual

intent standard is necessary, at least in the criminal context, to ensure that innocent actors are not

swept up by the provisions of section 1202. The addition of the second intent standard found in

the current statutory language, regarding infringement, alleviated concerns that knowingly

altering CMI for innocent or good faith purposes—such as the use of a pseudonym or a ghost

writer or updating information for a change in ownership—would not lead to civil or criminal

penalties. Accordingly, the Office does not recommend any change to section 1202.

At the same time, the Office agrees that the dual intent standard raises a high bar and

excludes a large amount of misconduct that should at least raise the potential of civil liability.

Therefore, the Office recommends that Congress consider a new section 1202A that would

address the difficulty creators face when trying to use section 1202 to protect their attribution

549

WCT Implementation Hearing at 51 (written statement of Marybeth Peters, Register of Copyrights, Copyright Office of

the United States, Library of Congress).

550

This is of particular concern for photographers and other visual artists. See Copyright Alliance, Comments

Submitted in Response to U.S. Copyright Office’s Apr. 24, 2015, Notice of Inquiry (Visual Works Letter) at 2 (“Visual

works are more easily infringed online than any other type of work, due to the ease in which images may be uploaded

or downloaded, the ubiquity of services that automatically strip out metadata, and the availability of right-click copy

and save functionality.”).

551

ARS Initial Comments at 3.

552

See Authors Guild Initial Comments at 4.

553

See ARS Initial Comments at 3; A2IM Reply Comments at 6; BMI Reply Comments at 3; CVA Initial Comments at 14;

NMPA Reply Comment at 9. But see OTW Initial Comments at 9 (“[Section 1202] must remain tightly linked to the

deliberate enablement of infringement. . . . Congress should leave well enough alone.”).

U.S. Copyright Office Authors, Attribution, and Integrity

rights―namely the requirement of intent to encourage infringement or knowledge that one’s

actions will induce infringement.

554

The Office recommends that Congress consider an addition to section 1202 that, while

retaining a dual standard, would loosen it slightly to focus on intent to conceal rather than to

infringe. Our proposed new section 1202A states that the knowing removal or alteration of any

conceal the author’s attribution information. This would alleviate the burden on creators’ ability

to effectively use section 1202 when their identifying information has been altered or removed,

while still providing safeguards for those who remove or alter CMI for innocent or good faith

purposes. Another safeguard provided is the omission of any criminal penalty. The new

provision would retain a dual intent standard, but a plaintiff would no longer be required to

prove that the actions were meant to encourage copyright infringement, or indeed relate to it in

any way. Instead, 1202A would be much more narrowly tailored to address attribution rights.

Based on the Office’s proposal, section 1202A would read as follows:

§ 1202A Integrity of copyright management information for attribution

rights

(a) REMOVAL OR ALTERATION OF COPYRIGHT MANAGEMENT INFORMATION. –

No person shall, without the authority of the author or the law,

knowingly remove or alter any copyright management information with

the intent to conceal the individual author’s attribution information.

(b) DEFINITIONS. –

(1) As used in this section, the term “copyright management

information” has the same meaning as used in section 1202(c).

(2) As used in this section, the term “attribution information”

means the name of, and other identifying information about, the

author of a work.

Technical amendments to section 1202 would read as follows:

§ 1203 Civil remedies

(a) CIVIL ACTIONS. – Any person injured by a violation of section 1201, 1202, or 1202A

may bring a civil action in an appropriate United States district court for such

violation.

(b) . . .

554

See supra CoreLogic discussion.

U.S. Copyright Office Authors, Attribution, and Integrity

committing a violation of section 1201, 1202, or 1202A is liable for either –

Under the Office’s proposal, the following actions could be liable under proposed section

1202A: intentionally stripping authorship metadata from a digital photograph and attaching new

metadata for someone who was not the creator; removing the title page of a printed book and

replacing it with another title page that falsely names someone else as the author; or removing a

painter’s signature from his painting, making copies available for sale, and advertising that the

painting was created by someone else. Such offenses are potentially unavailable or too difficult to

prove under the current statute. Because this proposal retains an intent standard it does not

address automatic stripping of attribution information, unless it can be proven that the automatic

system at issue was designed with the intent to conceal the author’s identity. While a court

would still have to determine if proposed section 1202A’s dual intent standard is met, the focus

on intent to conceal attribution information rather than section 1202’s intent to promote

infringement is more closely tied to protecting a creator’s moral right of attribution.

(3) Difficulties for Non-Rightsholder Authors

Under U.S. copyright law, the default rule is that the copyright initially belongs to the

author who created (or is treated by law as having created) the work. Nonetheless, there are

situations where the creator and copyright owner may not be the same, which has implications

for the author/creator’s ability to object to the removal or alteration of CMI identifying him or her.

For example, authors may transfer their ownership rights in their creations.

555

In this situation,

removal or alteration of the CMI cannot be done without the consent of the transferee, as the

alteration. Similarly, in a work-made-for-hire situation, the employer (or commissioner in limited

circumstances) is considered to be both the author and the copyright owner, even though an

employee (or person commissioned) actually created the work. The employer is thus the only

entity entitled either to be credited as the author or to object to the removal or alteration of CMI.

556

Some scholars have pointed out that section 1202 is more concerned with the economic interests

of those who exploit a work (e.g., the rightsholder or work-made-for-hire employer) rather than

the personality rights of the creator.

557

Under this view, there is no remedy for an author whose

attribution CMI has been altered or removed; instead, a violation is “dependent on the economic

rights of infringement that will follow from the omission of the author’s name.”

558

This is borne

out by section 1202, which requires authority from “the copyright owner or the law” for removal

555

See 17 U.S.C. § 201(d).

556

See 17 U.S.C. § 101, 201(b). In certain specific situations, commissioned works are also considered works made for

hire. See 17 U.S.C. § 101.

557

See KWA LL , SOUL OF CREATIVITY at 26; Severine Dusollier, Some Reflections on Copyright Management Information and

Moral Rights, 25 COLUM. J.L. & ARTS, 377, 397 (2001); Ginsburg, (Digital) Age, 19 CARDOZO ARTS & ENT. L.J. at 13.

558

Dusollier, 25 COLUM. J.L. & ARTS at 397.

U.S. Copyright Office Authors, Attribution, and Integrity

100

or alteration of CMI, and does not mention the rights of the author.

559

Since a non-rightsholder

creator has no economic tie to the work, the ability for them to independently prove a section

1202 violation is difficult, if not impossible.

560

The Office’s proposal for a new section 1202A would, if implemented, go some distance to

ameliorating this situation, in that it gives authority to “the author or the law” and not to the

another party would retain the ability to bring an action against someone who intentionally

removed her CMI with the intent to conceal her authorship of the work in question. Because this

proposed section is focused on attribution interests, it makes sense that it gives authority to the

party who is most harmed by non-attribution or false attribution—the author herself.

4. Other Title 17 Provisions

When Congress determined that there was “a composite of laws in this country that

provides the kind of protection envisioned by Article 6bis,”

561

it identified a number of legal

routes by which an aggrieved author-plaintiff could pursue a moral rights claim under federal,

local, and state law. Existing provisions in the Copyright Act were cited as part of the

framework, including protection of an author’s exclusive rights in derivatives of his or her works,

limits on a mechanical licensee’s rights to arrange an author’s musical composition, and

termination of transfers and licenses.

562

a) Derivative Works — Section 106(2)

The U.S. Copyright Act grants authors six exclusive rights, one being the section 106(2)

right to prepare and to authorize the preparation of “derivative works based upon the

copyrighted work.”

563

The Act defines a “derivative work” as one “based upon one or more

preexisting works” in which the original is “recast, transformed, or adapted.”

564

An author (who

559

17 U.S.C. § 1202(b).

560

See ASJA Initial Comments at 5 (“[T]he [section 1202] attribution of rights is tied to who owns or is licensed to use a

particular work. . . ; the moral rights of an author are not tied to money and do not begin or end with a contract.”);

NWU-SFWA Joint Initial Comments at 6 (“Section 1202 . . . fails to recognize any right which is independent of

economic rights or which survives a transfer or assignment of those rights.”). Some music industry stakeholders have

also complained that section 1202(c)’s CMI definition is too narrow because it only identifies the performer’s

information as CMI for phonorecords and sound recordings. The definition does not take into account songwriters,

non-featured performers, producers, engineers, and session musicians. See FMC Reply Comments at 7; Recording

Academy Reply Comments at 2–3.

561

H.R. REP. NO. 100-609, at 34 (1988).

562

See id. at 34, 37–38; S. REP. NO. 100-352, at 9–10 (1988); see also 17 U.S.C. §§ 106(2), 115(a)(2), 203.

563

17 U.S.C. § 106(2).

564

17 U.S.C. § 101. The “derivative works” definition includes, but is not limited to, translations, musical arrangements,

dramatizations, fictionalizations, motion picture versions, sound recordings, art reproductions, abridgments, and

U.S. Copyright Office Authors, Attribution, and Integrity

101

is also an owner)

565

can therefore enforce their integrity interests by bringing an infringement

action under section 106(2) against a party making modifications to their work that results in the

creation of an unauthorized derivative work.

566

In fact, the unauthorized derivative work does

not even have to be prejudicial to the author’s honor or reputation to be infringing.

567

On the

other hand, a work that is prejudicial in this way, but that does not meet the derivative work

standard of being “recast, transformed, or adapted” (for example, exhibiting the original work

with other works that negatively comment on it), will likely not be considered a “derivative

work” at all, and thus there will be no finding of infringement.

568

Additionally, where the author has authorized the creation of a derivative work (e.g., a

film adaptation), but the creator of the derivative work makes changes to which the author objects

and that violate the terms of the license, the author may bring suit either under a breach of

contract or a copyright infringement claim.

569

If a party violates the express terms of contract, the

other party can usually bring a breach of contract action. The factor determining whether a

violation of a license to create a derivative work may also constitute copyright infringement is if

the violation is related to the licensor’s exclusive rights.

570

Thus, in a licensed derivative work

context, the right of integrity is only enforceable under copyright to the extent it overlaps with the

economic derivative work right.

condensations. Id. The degree to which the new work must be altered to qualify as a derivative work, and thus trigger

a claim of infringement by the author or owner of the original work, is somewhat unclear. Compare Mirage Editions, Inc.

v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988) (holding that cutting out illustrations from an art monograph and

mounting them on tiles for retail sale infringes the derivative works right), with Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th

Cir. 1997) (holding that taking notecards and mounting them on tiles for retail sale does not infringe the derivative

works right because the works were not actually “recast, transformed, or adapted”).

565

Of course, integrity rights are personal to authors, but the derivative works right is not, and, as is demonstrated

below, see infra notes 572–578 and accompanying text, corporate actors do attempt to enforce what some consider moral

rights through derivative works actions.

566

See AD HOC WORKING GRP., in 10 COLUM.-VLA J.L. & ARTS at 554.

567

See id. at 554 (pointing out that commenters have noted that “unauthorized ‘distortion, mutilation or other

modifications’ would be actionable as infringements [under section 106(2)]—whether or not prejudicial to the author’s

honor or reputation”).

568

See A.R.T. Co., 125 F.3d at 582–83; see also id. at 582 (“If [the mounting of notecards on tiles] counts as a derivative

work infringement, then the United States has established through the back door an extraordinarily broad version of

authors’ moral rights, under which artists may black any modification of their works of which they disapprove. No

European version of droit moral goes this far.”).

569

See generally 3 NIMMER ON COPYRIGHT § 10.15[A][1]–[2] (Remedies Arising Out of Violation of the Instrument of

Transfer).

570

See MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d 928, 940 (9th Cir. 2010) (“To recover for copyright infringement

based on breach of a license agreement, (1) the copying must exceed the scope of the defendant’s license and (2) the

U.S. Copyright Office Authors, Attribution, and Integrity

102

Section 106(2) has regularly been cited as providing a right of integrity for copyright

owners.

571

For example, some highly publicized court cases have been described as seeking

damages for infringements of economic rights as a “backdoor” way of enforcing otherwise

unenforceable moral rights.

572

One commentator views the infringement cases Dr. Seuss

Enterprises v. Penguin Books USA, Inc. (seeking to enjoin the book The Cat NOT in the Hat, a

satirically-inclined retelling of the O.J. Simpson trial in the style of the Dr. Seuss children’s

books)

573

and Suntrust Bank v. Houghton Mifflin Co. (objecting to the book The Wind Done Gone, a

radical retelling of Gone with the Wind)

574

as essentially attempts to protect the integrity of the Dr.

Seuss image and the reputation of Gone with the Wind, brought to court in the guise of suits

alleging infringement of the derivative works right.

575

While both cases were brought by estates,

and not the authors themselves, they do illustrate how moral rights writ large may be protected

using the derivative work right.

576

These two cases also illustrate the interaction between moral

rights/derivative works claims and fair use: The court in Dr. Seuss Enterprises found that there

was no fair use and thus upheld the lower court’s preliminary injunction against the defendant’s

571

See 1987 BCIA Hearings at 230, 233 (statement of Peter Nolan, Vice President-Counsel, Walt Disney Productions, on

behalf of the Motion Picture Association of America); Authors Guild Initial Comments at 2; OTW Initial Comments at 1.

572

Erin E. Gallagher, Note, On the Fair Use Fence Between Derivative Works and Allegedly Infringing Creations: A Proposal for

a Middle Ground, 80 NOTRE DAME L. REV. 759, 771 (2005).

573

109 F.3d 1394 (9th Cir. 1997).

574

268 F.3d 1257 (11th Cir. 2001).

575

See Gallagher, 80 NOTRE DAME L. REV. at 772–73 (“Some sort of an integrity-like claim is involved when a marketer of

wholesome family entertainment like Dr. Seuss Enterprises wishes to protect the integrity of that image by suppressing

an adaptation of one of its identifying elements to lightheartedly portray a murder trial. Likewise, a desire to protect

the image of the characters and story associated with the novel Gone with the Wind causes the copyright holders to

dislike a new work that casts that story and those characters in a negative light.”).

576

See also Deidre A. Keller, Recognizing the Derivative Works Right as a Moral Right: A Case Comparison and Proposal, 63

CASE W. RES. L. REV. 511, 515 (2012) (arguing that The Wind Done Gone case as well as the litigation against a purported

sequel to The Catcher in the Rye—Salinger v. Colting, 641 F. Supp. 2d 250 (S.D.N.Y. 2009)—sought to “enforce [moral

rights] in the guise of enforcing the derivative works right”). A more recent example of a plaintiff seeking to enforce

what appears to be a right of integrity through a derivative works suit is that of the creator of Pepe the Frog against

those who have repurposed his character to advance hate speech. See Complaint for Copyright Infringement &

Demand for Jury Trial, Furie v. Infowars, LLC, No. 18-cv-1830 (C.D. Cal. filed Mar. 5, 2018); see also Matthew Gault, Pepe

the Frog’s Creator Goes Legally Nuclear Against the Alt-Right, MOTHERBOARD (Sept. 18, 2017, 1:43 PM),

https://motherboard.vice.com/en_us/article/8x8gaa/pepe-the-frogs-creator-lawsuits-dmca-matt-furie-alt-right.

U.S. Copyright Office Authors, Attribution, and Integrity

103

book as an unauthorized derivative work.

577

However, the Suntrust Bank court found that The

Wind Done Gone qualified as a parody, and thus upheld the fair use defense.

578

Some have been more skeptical of the scope of the derivative work right’s protections vis-

à-vis moral rights, pointing out that it “implies a right against distortion, [but only] to a

degree.”

579

Critics also note that determining what exactly constitutes an adaptation can be

difficult. For example, if a new work distorts an existing work “so outrageously” that only the

original (uncopyrightable) ideas are detectable, then section 106(2) has not been triggered because

the original expression was not appropriated.

580

Furthermore, derivative work rights have been

cited as being “essentially economic rights designed to regulate adaptations or arrangements,”

581

making the comparison to Berne 6bis one of “apples to oranges.”

582

However, it is well

understood that membership in the Berne Convention gives each nation the flexibility to

implement the Berne provisions as appropriate for their national law. This includes, in the

instance of the United States, the ability to merge economic rights with moral rights, as with the

derivative work right.

583

Section 106(2) remains an important piece of the United States’ moral

rights patchwork.

b) Compulsory Licenses for Nondramatic Musical Works — Section 115(a)(2)

The compulsory licensing provision in section 115(a)(2) of the Copyright Act limits

rearrangement—and thus prohibits a certain level of distortion—of non-dramatic musical

compositions.

584

Once a copyright owner has authorized the initial distribution of a non-dramatic

577

Dr. Seuss Enters., L.P. v. Penguin Books USA, Inc., 109 F.3d 1394, 1403 (9th Cir. 1997).

578

Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1270–71 (11th Cir. 2001); accord Dr. Seuss Enters, L.P. v. ComicMix

LLC, No. 16-CV-2779, 2019 WL 1323596, at 9, 17 (S.D. Cal. Mar. 12, 2019) (finding that even if a work using elements of

Dr. Seuss’s Oh, the Places You’ll Go! was a derivative work, it could also be “highly transformative,” and thus a fair use).

579

1987 BCIA Hearings at 681 (statement of Paul Goldstein, Professor of Law, Stanford University).

580

See id.; cf. Session 2, Symposium Transcript, 8 GEO. MASON J. INT’L COM. L. at 42 (remarks of Allan Adler, Association of

American Publishers) (“[T]here’s always going to be some question of what actually is derivative. . . . [A] work can

steal completely the ideas of a prior author’s work but not of course be actionable as copyright infringement because it

doesn’t take the original expression.”).

581

1987 BCIA Hearings at 1257–58 (1987–88) (written statement of Arnold P. Lutzker, Attorney, Dow, Lohnes &

Albertson).

582

Edward J. Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the

Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM.-VLA J.L. & ARTS 655,

659 (1986) (“Damich, Moral Rights”).

583

See, e.g., Berne Convention Rome Text art 36(1) (“Any country party to this Convention undertakes to adopt, in

accordance with its constitution, the measures necessary to ensure the application of this Convention.”).

584

See H.R. REP. NO. 100-609, at 34, 37–38 (1988); see also U.S. Adherence to the Berne Convention: Hearings on the

Implications, Both Domestic and International, of U.S. Adherence to the International Union for the Protection of Literary and

Artistic Works Before the Subcomm. on Patents, Copyrights and Trademarks of the S. Comm. on the Judiciary, 99th Cong. 685–86

U.S. Copyright Office Authors, Attribution, and Integrity

104

musical composition in the United States, anyone can obtain a compulsory license under section

115 to make and distribute phonorecords, including in digital form, of the work.

585

These are

commonly known as cover versions. Under section 115(a)(2), any musical arrangement made as

part of the cover version can only change the original work to the degree necessary to conform to

the style or manner of interpretation of the new arrangement.

586

But the new arrangement must

“not change the basic melody or fundamental character of the [original] work, and shall not be

subject to protection as a derivative work.”

587

A licensee’s ability to make more drastic changes or

to claim a derivative work copyright require the owner’s “express consent,”

588

thus protecting the

composer’s interests in the integrity of the original musical work.

When it enacted section 115 in the 1976 Copyright Act, Congress recognized the

importance of allowing a compulsory license for arrangements “without allowing the music to be

perverted, distorted, or travestied.”

589

While some have identified section 115(a)(2) as the “sole

explicit recognition of moral rights in the entire Copyright Act” prior to VARA,

590

its ability to

provide protection for moral rights has not been defined in judicial decisions. Instead, dicta in

various decisions focused on the relationship between the compulsory license and the owner’s

exclusive right to make derivative works under section 106(2), to the effect that derivative works

were said to fall outside the realm of section 115.

591

In a 2006 memorandum opinion, the Copyright Office did consider the parameters of

section 115(a)(2), noting that defining these parameters was “difficult because there is no

(1985–86) (“1985 Berne Convention Hearings”) (written statement of the Recording Industry Association of America);

Kernochan Center Initial Comments at 2 n.2; Lucille M. Ponte, Preserving Creativity from Endless Digital Exploitation: Has

the Time Come for the New Concept of Copyright Dilution?, 15 B.U. J. SCI. & TECH. L. 34, 63–65 (2009) (submitted as a

comment to this study).

585

See 17 U.S.C. § 115(a)(1). The compulsory license is only available for the distribution of phonorecords to the public

for private use. See id.

586

See 17 U.S.C. § 115(a)(2).

587

17 U.S.C. § 115(a)(2).

588

17 U.S.C. § 115(a)(2).

589

H.R. REP. NO. 94-1476, at 109 (1976).

590

3 NIMMER ON COPYRIGHT § 8.04[F]. See also AD HOC WORKING GRP., in 10 COLUM.-VLA J.L. & ARTS at 544-45 (stating

that section 115 “contains an explicit recognition of the more important more rights”).

591

See Campbell, 510 U.S. at 574 n.4 (noting that the defendant, who parodied plaintiff’s song, “concede[d] that it is not

entitled to a compulsory license under § 115 because its arrangement changes ‘the basic melody or fundamental

character’ of the original”); Palladium Music, Inc. v. EatSleepMusic, Inc., 398 F.3d 1193, 1199 n.9 (10th Cir. 2005) (noting

that although the Copyright Act permits compulsory licenses, section 115(a)(2) makes clear that the copyright owner

retains the right to create derivative works); TeeVee Toons, Inc. v. DM Records, Inc., No. 05 Civ. 5602, 2007 WL 2851218, at

*8 (S.D.N.Y. Sept. 27, 2007) (stating that the ability to make derivative works is excluded from the section 115

mechanical license ).

U.S. Copyright Office Authors, Attribution, and Integrity

105

precedent.”

592

Upon referral from the Copyright Royalty Board, the Register of Copyrights was

asked to resolve whether ringtones were subject to section 115.

593

The Office’s discussion of

whether a ringtone changed the “fundamental character” of the underlying work focused on a

derivative works analysis.

594

Although the analysis was specific to ringtones, the Office

concluded that because the statute “meant to avoid the desecration of the underlying musical

work,” ringtones containing additional material could be considered derivative works outside of

section 115’s scope.

595

The brief judicial references and the Office’s 2006 memorandum opinion reinforce the

relationship between the section 115 license and the owner’s exclusive right to make derivative

works under section 106(2). The provisions work together to assist owners in protecting the

integrity of their works. Section 115(a)(2) gives the owner control over how his or her work is

used. But if a new arrangement is too dramatically altered to be eligible for the license, then it

may be considered an unauthorized derivative work, enabling the owner to enforce his or her

exclusive derivative works right—also an element in the U.S. moral rights system.

While section 115(a)(2) is an important part of the moral rights patchwork, critics note that

its limited applicability “as to subject matter (nondramatic musical works) and to circumstances

(compulsory licenses for phonorecords)” confines its usefulness as a broad moral right.

596

c) Termination of Transfers — Section 203

The Copyright Act, while granting authors initial ownership in works they have created,

also allows them to transfer their exclusive ownership rights in whole or in part.

597

Termination

rights act as a “safety valve[],” providing authors a means to “regain control and integrity over

their artwork.”

598

Section 203 provides that, under certain circumstances, an author who transferred their

rights on or after January 1, 1978, has an opportunity to terminate the grant of those rights and

592

Mechanical and Digital Phonorecord Delivery Rate Adjustment Proceeding: Final Order, 71 Fed. Reg. 64,303, 64,313

(Nov. 1, 2006).

593

See id.

594

See id. at 64,314–15.

595

Id. at 64,315. The Office also found that ringtones that are excerpts of preexisting sound recordings do fall within the

scope of section 115. See id. at 64,307.

596

Damich, Moral Rights, 10 COLUM.-VLA & ARTS at 659.

597

See 17 U.S.C. §§ 201(a), (d).

598

SAG-AFTRA Initial Comments at 6–7.

U.S. Copyright Office Authors, Attribution, and Integrity

106

reclaim ownership.

599

Authors can terminate transfers during a five-year termination period that

begins thirty-five years after the execution of the grant.

600

Like the moral rights provided for in

Berne article 6bis, termination rights cannot be assigned or waived, leading one scholar to refer to

them as “effectively the U.S. corollary to moral rights.”

601

When enacting the 1976 Copyright Act, Congress noted that the termination provisions of

section 203 served an equitable function by allowing authors, who may assign rights earlier in

their career when they are in an inferior bargaining position, or their heirs, a second opportunity

to share in the economic success of their works.

602

At the time of Berne’s implementation,

commentators pointed out that section 203 “may serve as a vehicle for [moral rights] protection”

by allowing an author to regain control of a transferred work.

603

Likewise, courts have stressed

that the goal of the provision “is to help authors, not publishers or broadcasters of others who

benefit from the work of authors.”

604

For example, an author may rely on section 203 to reclaim

the ability to authorize derivative works, thus preventing any future low quality reproductions.

605

599

See 17 U.S.C. § 203(a). Specifically, the transfer instrument must have been “executed” after January 1, 1978. There is

a separate provision—section 304(c)—that provides similar termination rights to authors of works in either their first or

renewal term prior to 1978, where the transfer was executed prior to 1978. See 17 U.S.C. § 304(c).

600

See 17 U.S.C. § 203(a)(3). However, if the grant conveyed the right of publication, the termination period begins

35 years after the date that the grant was executed or 40 years after the date that the work was published, whichever is

earlier. Id. The U.S. Copyright Office provides a series of tables so authors can measure the termination period of a

grant depending on several factors. U.S. COPYRIGHT OFFICE, Notices of Termination, https://www.copyright.gov/

recordation/termination.html.

601

Michael H. Davis, The Screenwriter’s Indestructible Right to Terminate Her Assignment of Copyright: Once a Story is

“Pitched,” A Studio Can Never Obtain All Copyrights in the Story, 18 CARDOZO ARTS & ENT. L.J. 93, 106–07 (2000). See also id.

(noting that moral rights are defined by their nature as non-economic rights and their inability to be transferred, and

that termination is the one right in the United States that an author cannot assign or waive); 17 U.S.C. § 203(a)(5)

(“Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to

make a will or to make any future grant.”).

602

See H.R. REP. NO. 94-1476, at 124 (1976) (“[S]ection 203 safeguard[s] authors against unremunerative transfers. A

provision of this sort is needed because of the unequal bargaining position of authors, resulting in part from the

impossibility of determining a work’s value until it has been exploited.”).

603

Edward J. Damich, The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors, 23 GA.

L. REV. 1, 44 (1988) (“Damich, Right of Personality”). See also 1987 BCIA Hearings at 264 (written statement of Kenneth W.

Dam, Vice President, International Business Machines); 1985 Berne Convention Hearings at 169–70 (written statement of

John M. Kernochan, Nash Professor of Law, Columbia University School of Law).

604

Korman v. HBC Fla., Inc., 182 F.3d 1291, 1296 (11th Cir. 1999). Cf. Mills Music, Inc. v. Snyder, 469 U.S. 153, 172 (1985)

(citing section 203’s legislative history to show that termination rights were “obviously intended to make the rewards

for the creativity of authors more substantial”).

605

See Damich, Right of Personality, 23 GA. L. REV. at 44. However, note that derivative works prepared while a legal

transfer is in effect may continue to be exploited after the termination of that transfer. See 17 U.S.C. § 203(b)(1).

U.S. Copyright Office Authors, Attribution, and Integrity

107

Authors who transferred their rights in 1978 became eligible to reclaim their copyrights

under section 203 on January 1, 2013. In the first high profile case to rely on the provision, one of

the Village People’s lead singers, Victor Willis, won the right to regain control of several songs he

had co-written, including “Y.M.C.A.”

606

Although the court’s discussion did not reference moral

rights, the court reiterated section 203’s importance to remedying an author’s unequal bargaining

power when making an initial transfer of ownership.

607

Willis also stressed that termination

rights provide an avenue for artists to regain control over “works that a lot of us gave away when

we were younger, before we knew what was going on.”

608

B. State Law

In addition to the federal protections outlined above, Congress also identified protections

for moral rights provided by state laws during passage of the BCIA, including state common law

principles and state statutory schemes that proved protections for the rights of attribution and

integrity.

609

While state laws have an important role in protecting authors’ moral rights under the

United States’ system of federalism, reliance on state laws continues to suffer from many of the

same defects noted by commenters at the time of the BCIA’s passage—the lack of clear, uniform

standards that are consistent throughout the country.

610

1. Defamation

The first state law identified by Congress to protect the moral rights of authors is the

common law tort of defamation.

611

Defamation provides redress for certain false statements or

assertions―either written (libel) or spoken (slander)―that harm a person’s reputation.

612

Prior to

606

See Scorpio Music S.A. v. Willis, No. 11cv1557, 2012 WL 1598043, at *5 (S.D. Cal. May 7, 2012). The court found the

author’s termination notice to be valid in 2012, but there was subsequent litigation regarding other section issues

including section 203 joint ownership claims, statute of limitations, and attorney’s fees. See Scorpio Music (Black Scorpio)

S.A. v. Willis, No. 11-cv-01557, 2016 WL 7438325 (S.D. Cal. Dec. 27, 2016).

607

See Scorpio Music S.A. v. Willis, No. 11cv1557, 2012 WL 1598043, at *4 (S.D. Cal. May 7, 2012).

608

Larry Rohter, A Copyright Victory, 35 Years Later, N.Y. TIMES (Sept. 10, 2013),

http://www.nytimes.com/2013/09/11/arts/music/a-copyright-victory-35-years-later.html.

609

See H.R. REP. NO. 100-609, at 34, 37–38 (1988); S. REP. NO. 100-352, at 9–10 (1988).

610

See, e.g., 1987 BCIA Hearings at 408 (statement of Sydney Pollack, Directors Guild of America) (“With the exception of

extreme cases of blatant and outrageous misrepresentations, there is almost no consistent across the board protection in

the United States against the alteration or mutilation of an artists work.”).

611

The tort of defamation is recognized in every state, and has been codified in the Restatement (Second) of Torts. See

RESTATEMENT (SECOND) OF TORTS § 558 et seq. (AM. LAW INST. 1977).

612

To state a claim for defamation, a plaintiff must show (1) a statement that is both false and defamatory; (2)

publication of the statement to a third party absent some privilege; (3) that the publisher’s actions amounted to

negligence or greater fault; and (4) that the statement is actionable without demonstration of special harm (defamation

per se), or that the publication caused special harm. RESTATEMENT (SECOND) OF TORTS § 558. A defamatory statement

U.S. Copyright Office Authors, Attribution, and Integrity

108

passage of the BCIA, authors had successfully brought claims for defamation based on violations

of their right of attribution in a number of cases, including cases where: (i) a publisher continued

to identify an individual as an editor of a work he no longer oversaw,

613

(ii) a movie studio

inaccurately identified plaintiff as the producer of a motion picture of inferior quality,

614

and (iii)

publishers falsely identified an individual as the author of a published article.

615

Likewise,

authors had asserted claims for defamation in cases involving violations of the right of integrity,

such as where a defendant made substantial changes and additions to an article submitted by the

plaintiff.

616

While one study commenter asserted that violations of the rights of integrity and

attribution “are best addressed through well-established defamation doctrines,”

617

defamation

law is relevant to only a small sub-set of fact patterns under which an author’s attribution or

integrity interests may be impacted. In fact, the Office is aware of only a single case since passage

of the BCIA in which an author or performer asserted a defamation claim in an effort to protect

his rights of attribution or integrity, and the plaintiff was unsuccessful in that case.

618

must “tend[] to harm a person’s reputation to the extent that it lowers that person in the eyes of the community or

deters others from associating with that person.” Lott v. Levitt, 556 F.3d 564, 568 (7th Cir. 2009) (internal citation

omitted). A closely related tort that is often asserted under similar facts is the “false light” variation of the right of

privacy. To state a claim for a false light tort, a plaintiff must show (i) that the publicity places them in a false light that

would be highly offensive to a reasonable person, and (ii) the publisher had knowledge of or acted in reckless disregard

as to the falsity of the publication and the false light in which the plaintiff would be placed. See RESTATEMENT (SECOND)

OF TORTS, § 652E. Although a plaintiff need not show special harm to recover under a false light theory, unlike a claim

for defamation, the requirement that such actions be offensive to a reasonable person has the effect in practice of

creating significant overlap between the two torts. Accordingly, some courts have allowed claims for misattribution to

proceed under the false light theory. See, e.g., JL Powell Clothing LLC v. Powell, No. 2:13–CV–00160–NT, 2014 WL 347067,

at *4 (D. Me. Jan. 30, 2014); Dempsey v. National Enquirer, 702 F. Supp. 934, 936 (D. Me. 1989).

613

See Clevenger v. Baker Voohris & Co., 168 N.E.2d 643, 644 (N.Y. 1960) (plaintiff, a well-known expert on New York state

law, brought suit against his former publishers for continuing to use his name on a treatise he no longer edited).

614

See Carroll v. Paramount Pictures, Inc., 3 F.R.D. 95, 96 (S.D.N.Y. 1942).

615

See Ben-Oliel v. Press Publ’g Co., 167 N.E. 432, 432 (N.Y. 1929) (plaintiff brought a claim against newspaper that falsely

identified plaintiff as the author of a published article); d’Altomonte v. N.Y. Herald Co., 139 N.Y.S. 200 (App. Div. 1913),

aff’d on other grounds, 102 N.E. 1101 (N.Y. 1913) (holding that falsely attributing an article to an author for purposes of

subjecting him to ridicule constituted actionable defamation); Santana v. Item Co., 189 So. 442, 446–47 (La. 1939)

(recognizing a libel cause of action arising out of the defendant's misidentification of the plaintiff as the author of a

letter published by the defendant); Gershwin v. Ethical Publ’g Co., 1 N.Y.S.2d 904, 905 (N.Y.C. Mun. Ct. 1937).

616

See Edison v. Viva Int’l, Ltd., 421 N.Y.S.2d 203, 207–08 (App. Div. 1979) (holding that plaintiff may bring a libel action

where an author’s article is published in form and content substantially altered from the original if plaintiff can show

that the new content was of an inferior writing style or expresses sentiments or opinions that differ from his own).

617

EFF Initial Comments at 2.

618

See, e.g., Rich v. Lorge, No. 150039/2010, 2011 N.Y. Misc. LEXIS 6781, at *8 (Sup. Ct. July 8, 2011) (plaintiff claimed that

an edited version of his article harmed his reputation as a writer). There were also a number of cases asserting claims

U.S. Copyright Office Authors, Attribution, and Integrity

109

There are a number of likely reasons that defamation claims have been asserted in only a

limited number of cases to protect authors’ and performers’ attribution and integrity rights, many

of them stemming from attributes inherent in the concept of defamation. One of the most

significant hurdles an author must overcome to vindicate her attribution or integrity interests

through the assertion of a claim for defamation is the requirement that a plaintiff demonstrate

that a particular claim is both false and defamatory. As one academic has noted, defamation

claims “will be of no avail to an author who believes the integrity of her work has been impaired

but cannot show damages to her professional reputation.”

619

For example, while changes or edits

to an author’s work may violate the author’s right of integrity, the mere existence of such changes

or edits will not necessarily be sufficient to support a claim for defamation. As one court noted, a

mere statement “that the published work was different from the original is not to state that the

plaintiff was libeled” because “[t]here is always a possibility that any change in the original work

was made for the better rather than the worse.”

620

For this reason, one court rejected plaintiff’s

claims for defamation based on unauthorized edits and additions to his article, finding that such

changes were “not reasonably susceptible to defamatory connotation as no ordinary reader . . .

would regard changes such as using parenthesis, placing a long name in the title, or the use of the

phrase ‘anyone who’s anyone’ as libelous.”

621

Similarly, a court rejected plaintiffs’ libel claims

based on the use of plaintiffs’ music in a film with political messages antithetical to the plaintiffs’

political beliefs, finding that the mere use of the plaintiffs’ music did not give rise to a false or

defamatory implication.

622

The requirement to demonstrate harm to the plaintiff’s reputation illustrates another

limitation of defamation for protecting moral rights: defamation will have little, if anything, to

say in cases where the author alleges that her right of attribution has been violated through a lack

of attribution. Where a plaintiff’s work is used without attribution, there will not be a sufficient

“nexus between the work and the identity of the author” to demonstrate injury to the author’s

reputation.

623

Finally, certain subsets of defamation claims are subject to heightened pleading

requirements that may make it difficult for an author or performer to successfully assert a

for defamation arising out of the failure to identify one or more coauthors on published scholarship, but in each of

these cases the defamation claims were based on statements contained in related publications, and did not stem from

the attribution, or lack thereof, on the publication at issue. See, e.g., Romero v. Buhimschi, 396 Fed. App’x. 224 (6th Cir.

2010); Giordano v. Claudio, 714 F. Supp. 2d 508 (E.D. Pa. 2010).

619

KWA LL , SOUL OF CREATIVITY at 33 (2010). Of course, some study commenters see this as a feature, not a bug. See, e.g.,

EFF Initial Comments at 2.

620

Edison, 421 N.Y.S.2d at 207.

621

Lorge, 2011 N.Y. Misc. LEXIS 6781, at *8.

622

See Shostakovich v. Twentieth Century-Fox Film Corp., 80 N.Y.S.2d 575, 578 (Sup. Ct. 1948), aff’d, 87 N.Y.S.2d 430 (App.

Div. 1949).

623

Damich, Right of Personality, 23 GA. L. REV. at 65.

U.S. Copyright Office Authors, Attribution, and Integrity

110

defamation claim. One such heightened requirement applies when the author is a public figure,

which requires the plaintiff to demonstrate that the defendant’s actions were the result of malice,

not mere negligence.

624

Similarly, when the defamation asserted does not qualify as defamation

per se, a plaintiff must plead special damages that can be difficult to demonstrate.

625

Despite these limitations, the Office does not recommend any changes to state defamation

laws, which are far too blunt of an instrument to address authors’ legitimate interests in

protecting their rights of attribution and integrity. Further, any such changes to defamation law

are likely to have unintended consequences for protected speech. For this reason, the Office

believes that defamation claims are properly reserved for those narrow situations in which

misattribution or violations of the right of integrity are so severe as to imperil the author’s

reputation.

2. Privacy and Publicity

Another set of state laws that Congress recognized as providing protection for authors’

moral rights were the right of publicity and the related tort of misappropriation of a person’s

name or image under the common law right of privacy.

626

Both of these rights provide protection

624

See Session 2, Symposium Transcript, 8 GEO. MASON J. INT’L COM. L. at 29 (remarks of Allan Adler, Association of

American Publishers). But see EFF Initial Comments at 2 (noting that defamation law provides a “better frame” for

attribution and integrity claims because “it includes a variety of constitutional safeguards designed to balance the

rights of individuals to protect their reputations against the right of the public to speak freely”).

625

See, e.g., Harris v. Twentieth Century Fox Film Corp., 43 F. Supp. 119, 122 (S.D.N.Y. 1942) (dismissing for failure to plead

special damages a libel claim that was based on defendant’s failure to credit plaintiff as providing creative input). See

also Roberta Rosenthal Kwall, Copyright and the Moral Right: Is an American Marriage Possible, 38 VAND. L. REV. 1, 25, n.91

(1985) (“Kwall, American Marriage”).

626

Both the right of publicity and the right of privacy have their origins in the common law. The right of privacy was

first articulated in 1890 by Samuel Warren and Louis Brandeis in their article “The Right to Privacy,” and was thereafter

adopted by the Supreme Court of Georgia in 1905. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4

HARV. L. REV. 193, 205 (1890) (describing the right as a principle of “an inviolate personality”); Pavesich v. New England

Life Ins. Co., 50 S.E. 68 (Ga. 1905). The right of privacy later was conceptualized as having four distinct sub-branches:

the torts of (i) intrusion upon physical seclusion, (ii) public disclosure of private facts, (iii) false light, and (iv)

appropriation of a person’s name or likeness to the defendant’s benefit (the last of these is hereinafter referred to as the

“tort of misappropriation” or the “misappropriation tort”). See RESTATEMENT (SECOND) OF TORTS, § 652A. Some early

cases expressed difficulty with allowing celebrities or other public persons to recover for the misappropriation of their

names or images under the rubric of a privacy right. See, e.g., O’Brien v. Pabst Sales Co., 124 F.2d 167, 170 (5th Cir. 1941);

Pallas v. Crowley-Milner & Co., 54 N.W.2d 595, 597 (Mich. 1952). Subsequently, courts recognized a cognizable

affirmative property right in the commercial exploitation of an individual’s personality, labelled by some courts and

commentators as a “right of publicity,” in addition to the previously-recognized privacy right to not have one’s name or

image appropriated for another’s benefit. See Melville B. Nimmer, The Right of Publicity, 19 L. & CONTEMP. PROBS. 203,

203–04 (1954). One of the earliest cases adopting a “right of publicity” was the Second Circuit’s opinion in Haelan Labs.,

Inc. v. Topps Chewing Gum, Inc., which held that “a man has a right in the publicity value of his photograph, i.e., the right

to grant the exclusive privilege of publishing his picture.” 202 F.2d 866, 868 (2d Cir. 1953). While some courts have

U.S. Copyright Office Authors, Attribution, and Integrity

111

against the use by a third party of certain aspects of an author’s identity or personality, such as

use of their name, image, or signature.

At the time the BCIA was passed, the right of publicity was already well established―a

majority of states recognized some form of the right

627

―and had already been used by courts to

vindicate a number of interests analogous to the moral rights of attribution and integrity. For

example, the right of publicity had provided authors with causes of action for misattribution of

authorship,

628

material alterations to the author’s work,

629

and distribution of the author’s work in

noted technical differences between the misappropriation tort under the right of privacy and the right of publicity, the

analysis under both causes of action are similar in many respects. See, e.g., Allison v. Vintage Sports Plaques, 136 F.3d

1443, 1449 (11th Cir. 1998) (“Although it does not appear that Alabama courts ever have recognized a right denominated

as ‘publicity,’ we conclude that the Alabama right of privacy contains an analogous right.”); Doe v. TCI Cablevision, 110

S.W.3d 363, 368 (Mo. 2003) (“Though facially similar, the protections afforded by each tort are slightly different: ‘the

[misappropriation of name tort] protects against intrusion upon an individual’s private self-esteem and dignity, while

the right of publicity protects against commercial loss caused by appropriation of an individual’s identity for

commercial exploitation.’”) (internal citations omitted). For ease of reference, both the misappropriation tort under the

right of privacy and the right of publicity will be referred to herein as the “right of publicity,” except where the

difference is material to the analysis.

627

Only five states—Alaska, Colorado, Minnesota, North Dakota, and Wyoming—had not had occasion to adopt either

the right of publicity or the right of privacy in its case law, or had explicitly declined to do so. Another three states—

Nevada, New Hampshire, and Vermont—had adopted the right of privacy generally, with citations to the Restatement

(Second), but had not yet had occasion to adopt either the right of publicity or the specific tort of misappropriation

under the right of privacy. In contrast, thirteen states—California, Florida, Kentucky, Massachusetts, Nebraska, New

York, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and Wisconsin—had adopted statutory protections for

an individual’s name and image (with Nebraska, New York, and Wisconsin styling their statutes as codifications of the

right of privacy, including the tort of misappropriation). All other states had adopted a common law claim for the right

of publicity, the misappropriation tort under the right of privacy, or both. See generally Jennifer E. Rothman, Rothman’s

Roadmap to the Right of Publicity, http://www.rightofpublicityroadmap.com (last visited Mar. 19, 2019).

628

See, e.g., Kerby v. Hal Roach Studios, Inc., 127 P.2d 577, 580 (Cal. Dist. Ct. App. 1942) (finding a violation of plaintiff’s

right of privacy when defendant attributed plaintiff’s name to a letter she did not write that “cast doubt on her moral

character”); Eliot v. Jones, 120 N.Y.S. 989, 990 (Sup. Ct. 1910) (holding that a publication of advertisements using an

author’s name in conjunction with an “inferior edition” of books violated his right of privacy under New York law); cf.

Williams v. Weisser, 78 Cal. Rptr. 542, 551 (Ct. App. 1969) (finding that the publication of notes taken by defendant of

plaintiff’s oral lecture violated plaintiff’s right of privacy because the notes were attributed to plaintiff).

629

See, e.g., Zim v. W. Publ’g Co., 573 F.2d 1318, 1326–27 (5th Cir. 1978) (finding that publication of plaintiff’s revised

books, with attribution to plaintiff, without his consent violated his right of privacy); Neyland v. Home Pattern Co., 65

F.2d 363, 365 (2d Cir. 1933) (a distorted reproduction of author’s painting as an embroidery pattern, which was

attributed to the author, violated New York’s privacy statute); cf. Drummond v. Altemus, 60 F. 338, 339 (C.C. Pa. 1894)

(plaintiff had the right to prevent being named as the author of published lectures that distorted his lectures and did

not present them fully or correctly).

U.S. Copyright Office Authors, Attribution, and Integrity

112

connection with inferior packaging and artwork.

630

The right of publicity had likewise been

construed to protect something akin to a first publication right.

631

a) Post-BCIA Case Law

The right of publicity has continued to be an important mechanism for protecting the

moral rights of authors and performers. Although the modern formulation of the right of

publicity is often economic in nature,

632

there is nevertheless a good deal of overlap between the

interests that plaintiffs seek to vindicate through the right of publicity and the moral rights of the

author.

633

For example, the right of publicity has offered a way for authors to seek damages in

some cases where the right of attribution has been violated through misattribution.

634

The right of

publicity has likewise been asserted to redress specific violations of the right of integrity, such as

through the distribution of a distorted version of an author’s painting as an embroidery pattern.

635

In addition, performers have asserted the right of publicity when their names or likenesses have

been used in ways that conflict with their personal beliefs or artistic integrity.

636

630

See, e.g., Big Seven Music Corp. v. Lennon, 554 F.2d 504, 512 (2d Cir. 1977) (finding that unauthorized distribution of

musical recordings with poor production and an unartistic cover design harmed musician’s reputation and violated the

privacy right).

631

See Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454, 459–60 (Ohio 1976), rev’d on other grounds, 433 U.S. 562 (1977)

(finding that plaintiff had a cognizable right of publicity).

632

See, e.g., Christoff v. Nestle USA, Inc., 62 Cal. Rptr. 3d 122, 140 (Ct. App. 2007) (“However, section 3344 [the California

provision providing a right of publicity] is now understood as securing a proprietary interest. . . . It is an economic

right.”), rev’d in part on other grounds, 213 P.3d 132 (Cal. 2009).

633

See, e.g., KWALL, SOUL OF CREATIVITY at 34 (noting that many right of publicity judicial decisions focus on addressing

an individual’s wounded feelings, and that application of the doctrine favors the author’s interpretation and

presentation of her work over the interpretation of others).

634

Kerby, 127 P.2d at 580 (finding a violation of plaintiff’s right of privacy when defendant attributed plaintiff’s name to

a letter she did not write that “cast doubt on her moral character”).

635

Neyland, 65 F.2d at 365.

636

See, e.g., Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1104 (9th Cir. 1992), abrogated on other grounds, Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118 (2014) (affirming compensatory damages award for use of voice imitator, noting

clear evidence of plaintiff’s public stance against doing commercial endorsements); cf. Garcia v. Google, 786 F.3d 733,

740–41 (9th Cir. 2015) (noting that while the plaintiff actress did not hold a copyright in her movie performance, the

right of publicity and defamation could have been alternative theories used to control the use and editing of her

performance in a way she did not agree with). See also SAG-AFTRA Initial Comments at 4–5 (“Our performer

members, particularly those who are more well-known and thereby more recognizable, rely on the right of publicity to

defend their artistic integrity, career choices, brand, and reputation.”). But see 1987 BCIA Hearings at 408 (written

statement of Sydney Pollack, Directors’ Guild of America, noting that state laws do not adequately protect artists or

performers because “there is almost no consistent across-the-board protection”).

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113

While the right of publicity is thus a versatile tool for protection of moral rights, there are

limits to its usefulness. One limitation has to do with the nature of the right itself―because it

seeks to protect the name and likeness of the author or performer, the right cannot address

situations where the author’s name or likeness is absent. Thus, the right of publicity can stand as

a proxy for the right of attribution against violations resulting from misattribution, but has little to

say in cases where the author is not credited at all. Similarly, the right of publicity can be invoked

to vindicate the right of integrity in situations where the author’s name remains attached to a

work following its distortion, but cannot address violations of the right of integrity where the

author’s name ceases to be associated with the work, such as through the complete destruction of

the work.

637

Another limitation of the right of publicity as a vehicle for protecting the moral rights of

an author or performer is the specter of federal copyright preemption. When a right of publicity

claim rests upon the use of a work or performance that is embodied in a copyrighted work, courts

will sometimes find that the right of publicity claim is preempted.

To find preemption, a court must find that two conditions have been met: the subject of

the claim is a work fixed in a tangible medium of expression that comes within the subject matter

or scope of copyright, and the right asserted under the state law is equivalent to an exclusive right

contained in 17 U.S.C. § 106.

638

Thus, if the mere fact that a defendant undertook an act covered

by section 106—be it an act of reproduction, distribution, or public display or performance—was

by itself sufficient to infringe the right of publicity, then the right of publicity claim will be

preempted.

639

If, however, a plaintiff were required to prove an additional element in order to

state a claim for violation of the right of publicity, such a claim would not be preempted.

640

this basis, at least one commentator has concluded that there is “no categorical preemption of the

general right of publicity,” because someone’s “name and likeness do not become works of

authorship simply because they are embodied in a copyrightable work, such as a photograph.”

641

Nonetheless, there is much confusion about the contours of copyright preemption of right of

publicity claims in practice, and courts facing fact patterns that appear similar on the surface have

reached different conclusions.

637

As one scholar phrased it, the right to privacy “protects the association of the identity of the author with the work,

rather than the integrity of the work itself.” Damich, Right of Personality, 23 GA. L. REV. at 56.

638

See KNB Enters. v. Matthews, 92 Cal. Rptr. 2d 713, 723 (Ct. App. 2000).

639

1 NIMMER ON COPYRIGHT § 1.14[C]. But Nimmer continues that “[a] persona can hardly be said to constitute a

`writing' of an `author' within the meaning of the Copyright Clause of the Constitution. A fortiori, it is not a `work of

authorship' under the Act. The name and likeness do not become a work of authorship simply because they are

embodied in a copyrightable work such as a photograph.” 1 NIMMER ON COPYRIGHT § 1.01[B][1][c].

640

Id.

641

1 NIMMER ON COPYRIGHT § 1.17[A].

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114

One line of California cases can serve to illustrate the confusion. In Fleet v. CBS, Inc., two

actors asserted a claim for violation of the California right of publicity statute based on the

defendant’s distribution of a motion picture containing performances for which they had not

been paid.

642

The California appellate court found this claim to be preempted by the federal

protected by copyright law, and that defendant’s distribution of the film was equivalent to one of

the exclusive rights under section 106.

643

A different California appellate court declined to

endorse such a broad interpretation of the preemption doctrine. In KNB Enterprises v. Matthews,

the court interpreted Fleet as standing only “for the solid proposition that performers in a

copyrighted film may not use their statutory right of publicity to prevent the exclusive copyright

holder from distributing the film.”

644

The court held that, “[a]s between the exclusive copyright

holder and any actor, performer, model, or person who appears in the copyrighted work, the

latter may not preclude the former from exercising the rights afforded under the exclusive

645

Applying this reasoning, the KNB

court found that the models’ right of publicity claims in the case before it were not preempted

despite resulting from defendant’s unauthorized display and distribution of a copyrighted

photograph, stating that “the subjects of the [right of publicity] claims are the models’ likenesses,

which are not copyrightable even though ‘embodied in a copyrightable work such as a

photograph.’”

646

For this reason, the court found that “the rights asserted under the state statute,

the right of publicity, does not fall within the subject matter of copyright.”

647

Thereafter, the

Ninth Circuit considered the holdings in both Fleet and KNB and rejected the analysis of the KNB

court, finding a plaintiff’s claim for violation of his right of publicity, based on defendant’s sale of

counterfeit copies of DVDs embodying his performances, was preempted by the Copyright Act.

648

Yet another constraint on the utility of right of publicity claims for protection of moral

rights is the fact that the right is a creature of state law. Most states recognize some form of a

right of publicity: since passage of the BCIA, an additional twelve states have adopted statutory

right of publicity laws, bringing the total of states with statutory rights of publicity to twenty-

642

See Fleet v. CBS, Inc., 58 Cal. Rptr. 2d 645, 647 (Ct. App. 1996).

643

Fleet v. CBS, Inc., 58 Cal. Rptr. 2d 645, 650–52 (Ct. App. 1996).

644

KNB, 92 Cal. Rptr. 2d at 721 (emphasis in original). The KNB court likewise expressed muted skepticism of Fleet’s

assertion that the actors had a separate copyright interest in their performances. Id.

645

Id. at 721 (emphasis in original).

646

Id. at 723.

647

Id Accord Hoffman v. Capital Cities/ABC, Inc., 33 F. Supp. 2d 867, 875 (C.D. Cal. 1999) (finding that plaintiff’s name,

face, and persona as embodied in a still photograph were not “writings,” and thus were not within the exclusive subject

matter of copyright), rev’d on other grounds, 255 F.3d 1180 (9th Cir. 2001).

648

See Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1155 (9th Cir. 2010).

U.S. Copyright Office Authors, Attribution, and Integrity

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five.

649

The vast majority of the remaining states recognize some form of common law right of

publicity.

650

In fact, there are currently only two states that have not yet explicitly adopted either

a statutory or a common law protection for the right of publicity.

651

The appearance of near-

uniformity in adoption of some version of the right of publicity belies the degree to which the

exact contours of the right differ significantly from jurisdiction to jurisdiction, however.

652

Even

among those states that have adopted statutory protections for the right of publicity, there are

significant differences with respect to such issues as:

• What attributes of a person’s persona are protected: Indiana protects an individual’s

name, voice, signature, photograph, image, likeness, distinctive appearance, gesture,

or mannerisms,

653

while Massachusetts protects only a person’s “name, portrait or

picture.”

654

• Whether the plaintiff must demonstrate fame or some form of commercial value

inherent in their name or likeness: Arkansas has no such requirement,

655

while

Pennsylvania only provides protection to a “natural person whose name or likeness

has commercial value.”

656

• Whether the right of publicity is available posthumously, and, if so, for how long:

649

These include Alabama, Arizona, Arkansas, Hawaii, Illinois, Indiana, Louisiana, Nevada, Ohio, Pennsylvania, South

Dakota, and Washington, although the Arizona and Louisiana statutes apply only to soldiers. See generally Jennifer E.

Rothman, Rothman’s Roadmap to the Right of Publicity, http://www.rightofpublicityroadmap.com (last visited Mar. 19,

2019); Appendix D.

650

See Appendix D.

651

The North Dakota Supreme Court has not adopted the right of publicity, and so far has declined to rule on whether

North Dakota recognizes the common law tort of misappropriation under the right of privacy. See Am. Mut. Life Ins. v.

Jordan, 315 N.W.2d 290 (N.D. 1982). A recent decision of the Supreme Court of Wyoming adopted the intrusion upon

seclusion tort under the right of privacy tort as set out in the Restatement (Second) of Torts, but did not address the

misappropriation tort. See Howard v. Aspen Way Enters. Inc., 406 P.3d 1271, 1278 (Wyo. 2017).

652

See Joshua L. Simmons & Miranda D. Means, Split Personality: Construing a Coherent Right of Publicity Statute, ABA

LANDSLIDE, May/June 2018, at 38 (“In enacting right of publicity statutes, commentators have noted that many states

struggled to adopt a strong, consistent theory of why the right exists and what it should be designed to protect. In

some states, this failure has resulted in a kind of cognitive dissonance, such as when the right of publicity is called both

a ‘privacy right’ . . . and a ‘property right,” often interchangeably. Other states have avoided planting a flag in one

theory or another by defining the right of publicity broadly, and then scaling it back based on various exceptions.”)

(citations omitted).

653

See IND. CODE § 32-36-1-6 (2002).

654

MASS. GEN. LAWS ch. 214, § 3A (1973).

655

The statute grants “individual[s]” a property right in their name, voice, signature, photograph, and likeness. ARK.

CODE § 4-75-1104 (2016).

656

42 PA. CONS. STAT. § 8316(a) (2002).

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116

Wisconsin provides no posthumous right,

657

while the Virginia statute provides a

posthumous right for 20 years

658

and the Indiana statute provides protection for 100

years.

659

• What steps a claimant must take to assert such a claim: Several states, including

California,

660

Nevada,

661

Oklahoma,

662

and Texas

663

require registration with the state to

assert a right of publicity posthumously.

Further complicating the issue is the question of which state’s right of publicity law will

apply to a given claim. While the traditional rule is that an individual has to be domiciled in a

state either at the time of the claim or at the time of their death to assert a common law right of

publicity claim,

664

several states have done away with such a requirement in their statutes. For

example, the Washington statute explicitly states that the “property right does not expire upon

the death of the individual or personality, regardless of whether the law of the domicile,

residence, or citizenship of the individual or personality at the time of death or otherwise

recognizes a similar or identical property right.”

665

Thus, it may be possible to assert a claim in

Washington for a posthumous violation of that state’s right of publicity, even if the individual

was a resident of a state, such as Wisconsin, that does not recognize such a posthumous right at

the time of his or her death.

666

657

See WIS. STAT. § 995.50 (1977).

658

VA. CODE § 8.01-40 (1950).

659

IND. CODE § 32-36-1-8(a) (1994).

660

CAL. CIV. CODE § 3344.1 (West 1971).

661

NEV. REV. STAT. § 597.800 (1989).

662

OKLA. STAT. tit. 12, § 1448 (1985).

663

TEX. PROP. CODE § 26.006 (1987).

664

See, e.g., Cairns v. Franklin Mint Co., 292 F.3d 1139, 1149 (9th Cir. 2002) (applying the law of Great Britain, where the

celebrity was domiciled at the time of death); Acme Circus Operating Co. v. Kuperstock, 711 F.2d 1538, 1541 (11th Cir. 1983)

(applying the law of California, where the celebrity was domiciled at the time of death); Melinda R. Eades, Choice of Law

and the Right of Publicity: Domicile as an Essential First Step, 66 BROOK. L. REV. 1301, 1310 (2001). But see Estate of Elvis

Presley v. Russen, 513 F. Supp. 1339, 1353–54 (D.N.J. 1981) (applying New Jersey’s posthumous right of publicity even

though celebrity was domiciled in Tennessee at the time of his death).

665

WASH. REV. CODE § 63.60.010 (1998).

666

At least one lower court has held that the Washington statute violates both the Commerce and Full Faith and Credit

Clauses of the U.S. Constitution to the extent that it seeks to grant a posthumous right of publicity to individuals that

died while domiciled in a state that did not provide for such posthumous rights. See Experience Hendrix, L.L.C. v.

Hendrixlicensing.com, Ltd., 766 F. Supp. 2d 1122 (W.D. Wash. 2011). The Ninth Circuit declined to reach this issue on

appeal, however, holding that the Washington statute was constitutionally applied to sales of merchandise bearing the

deceased celebrity’s name and image that occurred within the state of Washington. See Experience Hendrix L.L.C. v.

U.S. Copyright Office Authors, Attribution, and Integrity

117

b) Considering a Federal Right of Publicity

As noted above, the right of publicity and the privacy tort of misappropriation of a

person’s name or image remain important tools for artists to vindicate their moral rights,

especially against acts of misattribution or prejudicial distortions of their work.

667

There are,

however, a number of factors that constrain the usefulness of such claims to protect an author’s

attribution and integrity interests. While some of these constraints, such as its inapplicability to

acts of non-attribution, are inherent in the nature of the right of publicity doctrine, other

constraints are an outgrowth of the fact that the rights of publicity and privacy are creatures of

state, rather than federal, law. As a result, there is significant variability among the protections

available to an author depending upon where he or she chooses to live, and the specter of federal

who seek to protect their moral rights, but also potential defendants who must study the nuances

of the publicity and privacy statutes and case law of dozens of different states if they wish to

create new works that may feature the names or likenesses of large numbers of individuals.

Nor is there likely to be harmonization among state right of publicity laws in the near

future. Although the American Law Institute (“ALI”) included a section on the right of publicity

in its Restatement (Third) of Unfair Competition in 1995,

668

recent bills seeking to update right of

publicity laws in Arkansas,

669

Louisiana,

670

Minnesota,

671

and New York

672

did not follow the ALI’s

model law. More recently, the Uniform Laws Commission abandoned plans to draft a uniform

act on the right of publicity at its annual meeting in July 2018.

673

If Congress wished to address some of the uncertainty and ambiguity created by the lack

of harmonization among state right of publicity laws, Congress might consider adopting a federal

right of publicity law.

674

Adoption of such a federal right of publicity would be a significant

Hendrixlicensing.com, Ltd., 762 F.3d 829, 837 (9th Cir. 2014). Cf. Estate of Elvis Presley, 513 F. Supp. at 1353–54 (applying

New Jersey’s posthumous right of publicity even though celebrity was domiciled in Tennessee at the time of his death).

667

See supra Section IV.B.2.

668

RESTATEMENT (THIRD) OF UNFAIR COMPETITION §§ 46–49 (AM. LAW INST. 1995).

669

H.R. 1002, 90th Gen. Assemb., 3d Sess. (Ark. 2016); S. 9, 90th Gen. Assemb., 3d Sess. (Ark. 2016).

670

Allen Toussaint Legacy Act, HB276, 2018 Reg. Sess. (La. 2018).

671

Personal Rights in Names Can Endure (“PRINCE”) Act, S.F. 3609, 89th Leg. (Minn. 2016).

672

Assemb. 08155, 2017–18 Leg. Sess. (N.Y. 2017); S. 05857, 2017–18 Leg. Sess. (N.Y. 2017).

673

See Minutes, Annual Meeting of the Executive Committee, Uniform Law Commission at 6 (July 23, 2018), available at:

https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=2986559b-3c7c-

658b-06a8-7dfc00bac2d3&forceDialog=0.

674

Several groups and commentators have called for adoption of a federal right of publicity law over the years. See, e.g.,

Int’l Trademark Ass’n, Resolution on the U.S. Federal Right of Publicity, adopted Mar. 3, 1998, available at

https://www.inta.org/Advocacy/Pages/USFederalRightofPublicity.aspx; Eric J. Goodman, A National Identity Crisis: The

U.S. Copyright Office Authors, Attribution, and Integrity

118

undertaking, implicating additional interests beyond just authors’ attribution and integrity

interests, and accordingly would require careful study and consultations with stakeholders

beyond those that participated in this Study.

675

For this reason, the Office is not currently

recommending statutory text for such a federal right, but will set forth herein various issues

Congress may want to consider if it chooses to go down this path.

The first question Congress must consider is whether to adopt a federal law that preempts

state right of publicity laws, or instead adopt language that would serve as a “floor” for right of

publicity protections, while allowing individual states to adopt more extensive protections in the

event they determine that such additional protections would be beneficial.

676

This approach

would be consistent with the approach taken by Congress in passing the Lanham Act and the

Defend Trade Secrets Act,

677

both of which elected not to preempt state law and accordingly

allowed for the continued development of state laws in the shadow of the federal statute. In

addition, it would avoid upsetting settled economic expectations of authors, performers, and

other individuals operating under current state right of publicity regimes.

If Congress instead elects to preempt state legislation on this issue, there are a number of

topics on which state legislation differs significantly that Congress would need to resolve: the

availability of post-mortem rights, the length of protection, whether such rights are transferable,

the scope of protectable “personas,” whether the personality right of non-famous individuals

Need for a Federal Right of Publicity Statute, 9 DEPAUL-LCA J. ART. & ENT. L. 227 (1999); Brittany Lee-Richardson, Multiple

Identities: Why the Right of Publicity Should be a Federal Law, 20 UCLA ENT. L. REV. 189 (2013); Christian B. Ronald, Note,

Burdens of the Dead: Postmortem Right of Publicity Statutes and the Dormant Commerce Clause, 42 COLUM. J.L. & ARTS 142

(2019) (arguing that state right of publicity laws violate the dormant Commerce Clause and that Congress should

remedy this by either creating a federal right of publicity or authorizing states to have their own unique right of

publicity laws); Kevin L. Vick & Jean-Paul Jassy, Why a Federal Right of Publicity Statute is Necessary, 28 COMM. LAW. 14

(Aug. 2011), available at https://www.americanbar.org/content/dam/aba/publications/communications_lawyer/

august2011/why_federal_right_publicity_statute_is_necessary_comm_law_28_2.authcheckdam.pdf.

675

Merely by way of example, a decision to adopt a postmortem federal right of publicity could have significant tax and

estate planning implications for affected individuals. See Mitchell M. Gans et al., Postmortem Rights of Publicity: The

Federal Estate Tax Consequences of New State-Law Property Rights, 117 YALE L.J. POCKET PART 203 (Apr. 1, 2008). Some

commentators have expressed concern that such consequences “could force heirs to commercialize the deceased

person’s identity to pay off [estate tax] debt.” JENNIFER E. ROTHMAN, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A

PUBLIC WORLD 123 (2018).

676

This approach would have the benefit of providing a measure of certainty for authors, performers, and other

individuals regarding the minimum level of protection that they could expect in their name and persona, while

allowing states to continue to provide additional protections as they see fit. A drawback of such an approach would be

that it would not provide certainty for those who wish to utilize the names or personae of others, as they would still

have to determine what, if any, additional state protections are applicable.

677

Defend Trade Secrets Act of 2016, Pub. L. No. 114-153, 130 Stat. 376 (codified in scattered sections of 18 U.S.C.).

U.S. Copyright Office Authors, Attribution, and Integrity

119

should be protected, and the proper scope of any exceptions. The resolution of these questions

would have significant follow-on implications for both rightsholders and users.

Whichever path Congress ultimately chooses, any federal law should provide, at a

minimum, protection for an individual’s name, signature, image, and voice against commercial

exploitation during their lifetime. The Office believes that such a law would further benefit from

explicit carve-outs for expressive works and other exceptions for First Amendment-protected

activities.

678

3. Misrepresentation and Unfair Competition

The common law principles of misrepresentation and unfair competition broadly cover a

wide range of actions from fraudulent misrepresentations leading to monetary loss to unfair or

deceptive business practices.

679

For example, courts have found that use of an author’s name in

association with the advertisement, publication, and sale of books with similar titles to the

author’s works violated unfair competition law by “unfairly and fraudulently. . . trad[ing] upon

[the author’s] reputation.”

680

Misrepresentation and unfair competition laws also encompass

common law trademark infringement claims, and can arise under either state or federal

trademark statutes.

681

While state unfair competition laws often do not contain wording that is

identical to the Lanham Act, many federal courts review such claims “congruent with Lanham

Act claims.”

682

As a result, outcomes under state unfair competition law differ little from

outcomes under the Supreme Court’s interpretation of the Lanham Act in Dastar, even though

that case purportedly turned on questions of (Lanham Act) statutory interpretation.

683

The

question of federal trademark law—the Lanham Act—and its use as a moral rights tool is

discussed in detail above.

684

678

See, e.g., ALA. CODE § 6-5-773 (2015) (“Nothing in this article will allow for an abridgement of free speech rights under

the First Amendment of the U.S. Constitution. . . .”); ARK. CODE § 4-75-1110 (2016) (“It is not a violation . . . if the name,

voice, signature, photograph, or likeness of an individual is used . . . in . . . a play, book, magazine, newspaper, musical

composition, visual work, work of art, audiovisual work, radio or television program if it is fictional or nonfictional

entertainment, or a dramatic, literary, or musical work”); CAL. CIV. CODE § 3344(d) (1971) (“[U]se of a name, voice,

signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any

political campaign, shall not constitute a use for which consent is required. . . .”).

679

See RESTATEMENT (SECOND) OF TORTS § 525; 1 GILSON ON TRADEMARKS § 1.04[1].

680

Collier v. Jones, 66 Misc. 97, 100 (N.Y. Sup. Ct. 1910).

681

See 1 GILSON ON TRADEMARKS § 1.04[1]; 1 MCCARTHY ON TRADEMARKS § 4:6.

682

UMG, 281 F. Supp. 2d at 1186.

683

See, e.g., Twentieth Century Fox Film Corp. v. Dastar Corp., No. CV98–07189FMC, 2003 WL 22669587, at *4–5 (C.D. Cal.

2003); Williams, 281 F. Supp. 2d at 1186.

684

See supra Section VI.A.1.

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4. State Moral Rights Laws

At the time of the BCIA, eight states had recently enacted specific statutes “protecting the

rights of integrity and paternity in certain works of art.”

685

California led the charge by enacting

the first state statute that explicitly protected the moral rights of authors of works of fine arts.

686

Soon after its enactment, the California Art Preservation Act of 1979 was labeled as “a positive

step for the protection of some moral rights for some creators.”

687

Although there was criticism

that the statute was narrower than European moral rights statutes and Article 6bis of the Berne

Convention, it was nonetheless heralded by many as a much needed “coherent and

comprehensive set of protections for the patchwork relief traditionally provided by the courts.”

688

Then-Register of Copyrights Ralph Oman noted that three basic models of state moral

rights law existed at the time the BCIA was being considered—the preservation model, the moral

rights model, and the public works model.

689

The preservation model sought to provide authors

with attribution and integrity rights, while also protecting works from destruction.

690

The moral

rights model provided authors with integrity and attribution rights, without protection against

destruction.

691

State statutes falling in the public works category were more related to state police

power and were used to protect certain works, such as antiquities and works of historical value,

685

H.R. REP. NO. 609, 100th Cong., 2d Sess. 34 (1988) (citing California, Louisiana, Maine, Massachusetts, New Jersey,

New York, Pennsylvania, and Rhode Island).

686

Jill R. Applebaum, Note, The Visual Artists Rights Act of 1990: An Analysis Based on the French Droit Moral, 8 AM. U. J.

INT’L L. & POL’Y 183, 200 n.126 (1992).

687

Kwall, American Marriage, 38 VAND. L. REV. at 33.

688

Karen Gantz, Protecting Artists’ Moral Rights: A Critique of the California Art Preservation Act as a Model for Statutory

Reform, 49 GEO. WASH. L. REV. 873, 901 (1981) (“Gantz”). Gantz criticized the California statute for protecting only works

of fine art as opposed to all copyrightable works, for confining its protections to works of “recognized quality,” for

having a shorter duration than European counterparts, and for being waivable. Id. at 883–84, 886–87.

689

See 1989 VARA Hearing at 33 (written statement of Ralph Oman, Register of Copyrights).

690

See id. at 33–36. For example, Register Oman designated the California Art Preservation Act as a preservation statute

that prohibited the intentional destruction of a work of fine art as well as providing a right of attribution. Connecticut,

Massachusetts, and Pennsylvania were also cited as part of the preservation model. Note that the Connecticut Art

Preservation and Artists’ Rights Act was not cited by Congress as part of the state moral rights patchwork because it

became effective after S. REP. NO. 100-352 (1988) and H.R. REP. NO. 100-609 (1988), discussing the existing moral rights

framework, were issued. Id.

691

See 1989 VARA Hearing at 36–38 (1989) (written statement of Ralph Oman, Register of Copyrights) (citing Louisiana,

Maine, New Jersey, New York, and Rhode Island as states with moral rights statutes that provided the traditional

attribution and integrity rights).

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from vandalism.

692

Which model a state employs affects which art and artists are protected, as

well as the scope of that protection.

In the years after the BCIA’s enactment, several other states enacted moral rights

legislation.

693

State moral rights still generally fall into the three categories that Oman articulated

in 1989. In addition to Oman’s three models, states have also enacted legislation establishing

minimal attribution rights for authors engaged in transactions with art dealers.

694

Since the time

of the BCIA and VARA, no new state statutes have been enacted that fall under the preservation

model. The existing preservation model statutes are unique because they not only recognize an

author’s personal attribution and integrity interests, but also the importance to the “public

interest in preserving the integrity of cultural and artistic creations.”

695

The need to protect the

public interest manifests in provisions that prevent the destruction of works.

696

Similar to

preservation model statutes, the list of traditional moral rights statutes has remained the same

except for the addition of one new statute.

697

Accordingly, the majority of new statutes fall under

the public works model

698

as well as the new model covering art sales.

692

See 1989 VARA Hearing at 33–34, 38 (written statement of Ralph Oman, Register of Copyrights) (citing New Mexico’s

Art in Public Buildings law as providing “extensive rights in a very limited area,” namely the protection of attribution

and integrity rights for works displayed in public buildings, including works of art incorporated in buildings). Note

that the New Mexico statute was also enacted after S. REP. NO. 100-352 (1988) and H.R. REP. NO. 100-609 (1988).

693

See e.g., CONN. GEN. STAT. § 42-116s (2015); NEV. REV. STAT. §§ 597.720–.740 (2017); N.M. STAT. § 13-4B-3 (2019). In

addition, the legislatures in Arizona, Montana, South Dakota, and Utah passed narrowly tailored bills that grant moral

rights under certain circumstances. ARIZ. REV. STAT. § 44-1776 (2015) (granting the right of attribution when the user is

an art dealer, subject to certain limitations); MONT. CODE § 22-2-407 (2017) (granting the right of attribution when the

state acquires the work for display); S.D. CODIFIED LAWS § 1-22-16 (2018) (granting the rights of attribution and integrity

to an author whose work has been acquired by the state); UTAH CODE § 9-6-409 (granting the rights of attribution and

integrity when the artist was commissioned by the state Arts Development Program to create a work of art).

694

See ARIZ. REV. STAT. § 44-1776 (2018); CONN. GEN. STAT. § 42-116m (2015); D.C. CODE § 28-5106 (2019); FLA. STAT.

§ 686.503 (2018); 815 ILL. COMP. STAT. 320/5 (2018); N.H. REV. STAT. § 352:8 (2018); OHIO REV. CODE § 5815.46 (2018); WASH.

REV. CODE § 18.110.030 (2018).

695

CAL. CIV. CODE § 989(a) (2019). See also MASS. GEN. LAWS ch. 231, § 85S(a) (2017).

696

See CAL. CIV. CODE § 987(a) (2019); MASS. GEN. LAWS ch. 231, § 85S(a) (2017); N.M. STAT. § 13-4B-1 (2018).

697

See NEV. REV. STAT. §§ 597.720–760 (2019).

698

See GA. CODE §§ 8-5-1 to -9 (2019); MONT. CODE §§ 22-2-401 to -408 (2018); S.D. CODIFIED LAWS §§ 1-22-9 to -17 (2018);

UTAH CODE § 9-6-401 to -409 (2019); WIS. STAT. § 41.57 (2019). California and Rhode Island possess general moral rights

statutes as well as moral rights statutes related to government acquisitions. See CAL. CIV. CODE § 987–989 (2019); CAL.

GOV’T CODE § 15813.3(3)(e) (2019) (stipulating, as part of California’s Art in Public Buildings provisions, that the state

shall ensure “that each work of art acquired pursuant to this chapter is properly maintained and is not artistically

altered in any manner without the consent of the artist”); 5 R.I. GEN. LAWS §§ 5-62-2 to -12 (2018) (providing general

integrity and attribution rights); R.I. GEN. LAWS § 42-75.2-8(b)(1)(2) (2018) (stating that the state becomes the sole owner

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By their nature, state moral rights statutes are not uniform, but there are certain general

provisions that are common amongst many of the statutes. First, the most common theme, and

often critique, is that the statutes only apply to works of fine art.

699

This limitation was first

criticized soon after the California Art Preservation Act was passed in 1979; the plethora of

statutes enacted since have replicated this limitation.

700

Second, the rights tend to be waivable.

701

Third, the rights do not usually apply to works created under work made for hire arrangements

or works that are created under contract for advertising or commercial use.

702

The limitation for

advertising and commercial uses can often be overcome by contract.

703

Fourth, the attribution

right is generally accompanied by a right to disclaim authorship, but it must be for a “just and

valid reason.”

704

Fifth, with the exception of some of the statutes, the destruction of a covered

of the art it acquires, but subject to moral rights retained by the artist, such as “the right to have the artist's name

associated with the work” and “the right to prevent degradation, mutilation, or aesthetic ruining of the work”).

699

See e.g., ARIZ. REV. STAT. §§ 44-1771 to -1778 (2018) (governing art dealers and defining “a work of fine art” as “a visual

rendition, including a painting, drawing, sculpture, mosaic or photograph”); CAL. CIV. CODE §§ 987(a)-(b)(2), 989(1)

(2019) (governing destruction of “fine art,” which is defined as “an original painting, sculpture, or drawing, or an

original work of art in glass, of recognized quality, and of substantial public interest”); CONN. GEN. STAT. § 42-116s(2)

(2015); N.J. STAT. § 2A:24A-3(e) (2019); 73 PA. CONS. STAT. § 2102 (2018); see also 3 NIMMER ON COPYRIGHT §8D.02[A]

(“[B]oth the federal and state laws [expressly covering moral rights of attribution and integrity] relate solely to

protection for works of visual art and have no application to other copyrightable subject matter. . . . Moral rights

protection for works of visual art follows explicit but circumscribed boundaries, in contrast to the broad but amorphous

protection accorded to all other types of copyrightable compositions.”); Edward J. Damich, State “Moral Rights” Statutes:

An Analysis and Critique, 13 COLUM.–VLA J.L. & ARTS 291, 293 (1989) (“[S]tate statutes do not provide substantial

protection of moral rights as measured by article 6bis of the Berne Convention. . . . [T]he state statutes recognize moral

rights in a much smaller class of works: in general moral rights are recognized only in the visual and graphic arts.”).

700

See Gantz, 49 GEO. WASH. L. REV. at 883.

701

See, e.g., CAL. CIV. CODE § 987(g)(3) (2019.); CONN. GEN. STAT. § 42-116t(d) (2015); MASS. GEN. LAWS ch. 231, § 85S(g)

(2017); NEV. REV. STAT. § 597.750 (2017); N.M. STAT. § 13-4B-3(E) (2018); 73 PA. CONS. STAT § 2107(2) (2018). But see ARIZ.

REV. STAT. § 44-1777 (2018).

702

See, e.g., CAL. CIV. CODE § 987(b), (g) (2019); CONN. GEN. STAT. § 42-116s(2) (2015); ME. REV. STAT. tit. 27, § 303(4)(B)

(2018); N.J. STAT. § 2A:24A-7 (2019); N.M. STAT. § 13-4B-2(A) (2018); LA. REV. STAT. § 51:2155(D) (2018); MASS. GEN. LAWS

ch. 231, § 85S(b) (2017); NEV. REV. STAT. § 597.720(3) (2017); N.J. STAT. § 2A:24A-7 (2019); N.M. STAT. § 13-4B-2(A) (2018);

N.Y. ARTS & CULT. AFF. LAW § 14.03(3)(d) (2018); 73 PA. CONS. STAT. § 2107(3) (2018); 5 R.I. GEN. LAWS § 5-62-5(d) (2018).

703

See, e.g., LA. REV. STAT. § 51:2155(D) (2018); N.J. STAT. § 2A:24A-7 (2019); N.Y. ARTS & CULT. AFF. LAW § 14.03(3)(d)

(2018); 73 PA. CONS. STAT. § 2107(3) (2018); 5 R.I. GEN. LAWS § 5-62-5(d) (2018).

704

CAL. CIV. CODE § 987(d) (2019); MASS. GEN. LAWS ch. 231, § 85S(d) (2017); N.M. STAT. § 13-4B-3(B) (2018). See also 73 PA.

CONS. STAT. §§ 2103–2014 (2018) (stating that an author may disclaim ownership for intentional or grossly negligent acts

resulting in the “defacement, mutilation, alteration or destruction of a work of fine art”). Some statutes explicitly state

what constitutes a just and valid reason. See LA. REV. STAT. § 51:2154(C) (2018) (“Just and valid reason for disclaiming

authorship shall include that the work of fine art has been altered, defaced, mutilated, or modified without the artist’s

consent and damage to the artist’s reputation is reasonably likely to result or has resulted therefrom.”); ME. REV. STAT.

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work is generally permissible,

705

although alteration is prohibited in those states that assign an

integrity right.

706

Despite the above commonalities, state moral rights statutes also vary in many aspects,

most notably in the form of protections afforded, when those protections kick in, and the types of

works protected. When Congress determined that the United States met its Berne article 6bis

obligations to provide attribution and integrity rights to authors, it cited eight existing state

statutes in its rationale.

707

At the time, those eight statutes all provided some form of attribution

and integrity right. State moral rights statutes subsequently enacted have generally provided

more limited rights, establishing attribution rights rather than integrity rights. While this is not

tit. 27, § 303(3) (2018); NEV. REV. STAT. § 597.730(2) (2017); N.J. STAT. § 2A:24A-5 (2019); N.Y. ARTS & CULT. AFF. LAW §

14.03 (2)(a) (2018); 5 R.I. GEN. LAWS § 5-62-4(a) (2018).

705

See, e.g., LA. REV. STAT. §§ 51:2153, 51:2155(F)(1) (2018) (not prohibiting destruction in general, and waiving the artist’s

moral rights if removal of a work from a building would result in the work’s destruction); ME. REV. STAT. tit. 27, § 303(2)

(2018) (not prohibiting destruction); NEV. REV. STAT. § 597.740(1) (2017) (not prohibiting destruction); N.J. STAT. § 2A:24A-

4 (2019) (not prohibiting destruction); N.Y. ARTS & CULT. AFF. LAW § 14.03(2)(a) (2018) (not prohibiting destruction); 5 R.I.

GEN. LAWS § 5-62-3 (2018) (not prohibiting destruction). But see CAL. CIV. CODE § 987(c)(1) (2019) (prohibiting physical

defacement, mutilation, alteration, or destruction of a work of fine art); CONN. GEN. STAT. § 42-116t(a) (2015) (prohibiting

destruction unless done by the author); MASS. GEN. LAWS ch. 231, § 85S(c) (2017) (prohibiting the physical defacement,

mutilation, alteration, or destruction of a work of fine art unless done by the author); N.M. STAT. § 13-4B-3(A) (2018)

(prohibiting the intentional physical defacement, mutilation, alteration, or destruction of a work of fine art in public

view, but if a work is removed from a building and the alteration is unavoidable, the right is waived); 73 PA. CONS. STAT.

§§ 2104, 2108 (2018) (prohibiting the intentional physical defacement, mutilation, alteration, or destruction of a work,

but if a work is removed from a building and the alteration is unavoidable, the right is waived); 42 R.I. GEN. LAWS § 42-

75.2-8 (2018) (granting author right to prevent degradation, mutilation, or aesthetic ruining of works owned by the

state); S.D. CODIFIED LAWS § 1-22-16(3) (1989) (granting the author the right to prevent degradation, mutilation, or

aesthetic ruining of works owned by the state).

706

See, e.g., CONN. GEN. STAT. § 42-116t(a) (2015) (prohibiting physical defacement or alteration); GA. CODE § 8-5-5(5)

(2019) (prohibiting artistic alteration without the artist’s consent of art in state buildings); LA. REV. STAT. § 51:2153 (2018)

(prohibiting display or publication of a work or a reproduction that has been altered, defaced, mutilated, or modified);

ME. REV. STAT. tit. 27, § 303(2) (22018) (prohibiting display or publication of a work or reproduction that has been

altered, defaced, mutilated, or modified in a way that would damage the artist’s reputation); NEV. REV. STAT. § 597.740(1)

(2017) (prohibiting display or publication of a work or a reproduction that has been defaced, mutilated, or altered if

damage to the reputation of the artist is reasonably foreseeable); N.J. STAT. § 2A:24A-4 (2019) (prohibiting display,

publication, and reproduction of a work that has been altered, defaced, mutilated, or modified in a way that damages

the artist’s reputation); N.Y. ARTS & CULT. AFF. LAW § 14.03(1)(a) (2018) (prohibiting display or publication of a work or

reproduction that has been altered, defaced, mutilated, or modified if harm to the artist’s reputation is likely); 5 R.I.

GEN. LAWS § 5-62-3 (2018) (prohibiting display or publication of a work or reproduction that has been altered, defaced,

mutilated, or modified); 42 R.I. GEN. LAWS § 42-75.2-8(b)(2) (2018) (preventing degradation, mutilation, or aesthetic

ruining of works acquired by the state); S.D. CODIFIED LAWS § 1-22-16(3) (2018) (preventing degradation, mutilation, or

aesthetic ruining of works acquired by the state).

707

See S. REP. NO. 100-352, at 11 (1988).

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the case with all post-BCIA statutes, the trend has been to establish only attribution rights for

artists in connection with display in public buildings or art sales.

708

Relatedly, an artist’s ability to

enforce his or her moral rights varies greatly state by state. For example, some states attach moral

rights to artists’ works broadly regardless whether the work was created privately by an artist or

commissioned by the state.

709

Others only extend protection to works commissioned by the state

or displayed in state buildings

710

or to artwork involved in sales or commissions.

711

Lastly, while

state moral rights statutes only protect works of visual art, there is no uniform definition of the

term. Most of the statutes define covered works as “works of fine art,” but the specific definitions

vary greatly. Some enumerate long lists of examples

712

and others simply refer to only visual and

708

See, e.g., ARIZ. REV. STAT. § 44-1776(A)(1) (2018) (providing attribution in transactions with art dealers); FLA. STAT. §

686.503(4) (2018) (providing attribution in consignment transactions); 815 ILL. COMP. STAT. § 320/5(2) (2018) (providing

attribution in transactions with art dealers); MONT. CODE § 22-2-407 (2017) (providing attribution in state-owned works);

N.H. REV. STAT. § 352:8 (2018) (providing attribution in transactions with art dealers); OHIO REV. CODE 5815.46 (2018)

(providing attribution in transactions with art dealers); WASH. REV. CODE § 18.110.030(2) (2018) (providing attribution in

transactions with art dealers). But see CONN. GEN. STAT. § 42-116t(a),(b), § 42-116m(d) (2015) (providing general

attribution and integrity rights to artists as well as attribution in consignment transactions); GA. CODE §§ 8-5-5(5), § 8-5-

7(a) (2019) (providing integrity and attribution for works in state buildings); NEV. REV. STAT. § 597.730 (2017) (providing

attribution and integrity rights to artists); N.M. STAT. § 13-4B-3(A), (B) (2018) (providing integrity rights to works in or

on state buildings and attribution rights in general); S.D. CODIFIED LAWS § 1-22-16(1) to (3) (2018) (providing attribution

and integrity rights to works in public buildings); UTAH CODE § 9-6-409 (2019) (providing attribution in state-

commissioned works and a quasi-integrity right by allowing the artist to disclaim authorship if conservation or repair

damages the work’s integrity); see also D.C. CODE § 28-5106(a),(b) (2019) (providing attribution in transactions with art

dealers well as compensation for loss or damage to consigned works); WIS. STAT. §§ 41.57, 129.06 (2019) (providing only

integrity for art in state public buildings and only attribution in art sales).

709

See, e.g., CAL. CIV. CODE §§ 987–989 (2019); N.Y. ARTS & CULT. AFF. LAW § 14.03 (2018).

710

See, e.g., GA. CODE § 8-5-1 to -9 (2019); MONT. CODE § 22-2-407 (2017); S.D. CODIFIED LAWS § 1-22-16 (2018); UTAH CODE

§ 9-6-409 (2019).

711

See, e.g., ARIZ. REV. STAT. § 44-1776 (2018); D.C. CODE § 28-5106 (2019); FLA. STAT. § 686.503 (2018); 815 ILL. COMP. STAT.

320/5 (2018); N.H. REV. STAT. § 352:8 (2018); OHIO REV. CODE § 5815.46 (2018); WASH. REV. CODE § 18.110.030 (2018).

712

See, e.g., CONN. GEN. STAT. § 42-116s(2) (2015) (defining “work of fine art” as “any drawing; painting; sculpture;

mosaic; photograph; work of calligraphy; work of graphic art, including any etching, lithograph, offset print, silkscreen

or other work of graphic art; craft work in clay, textile, fiber, metal, plastic or other material; art work in mixed media,

including any collage, assemblage or other work combining any of the artistic media named in this definition, or

combining any of said media with other media; or a master from which copies of an artistic work can be made, such as

a mold or a photographic negative, with a market value of at least two thousand five hundred dollars; provided work

of fine art shall not include (A) commissioned work prepared under contract for trade or advertising usage, provided

the artist, prior to creating the work, has signed an agreement stating that said work shall be a commissioned work

which may be altered without consent; (B) work prepared by an employee within the scope of his employment

duties”).

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graphic works including, but not limited to, paintings, drawings, or sculptures.

713

Some states

also expressly exclude works that are included in other jurisdictions, like film and video.

714

Understandably, the variety of state statutes can be difficult to navigate, and this system of

inconsistent state laws only protects a thin subset of works.

State moral rights laws provided the most explicit expression of statutory moral rights in

the United States until the passage of VARA in 1990. VARA amended the Copyright Act’s

preemption provision (section 301), providing that this federal statute preempts “all legal or

equitable rights that are the equivalent to” the attribution and integrity rights conferred by VARA

with respect to “works of visual art to which the rights conferred by section 106A apply.”

715

According to the legislative history, “[a] single Federal system is preferable to State statutes or

municipal ordinances on moral rights because creativity is stimulated more effectively on a

uniform, national basis.”

716

Subsection 301(f) outlines several exceptions to VARA’s preemption authority including

that the provision does not apply to causes of action commenced before the effective date of

VARA (June 1, 1991).

717

For example, in Pavia v. 1120 Avenue of the Americas Associates, the U.S.

District Court for the Southern District of New York found that the plaintiff’s claim regarding the

display of his work in an altered form under New York’s Artists Authorship Rights Act (AARA)

was not preempted by VARA because the improper display started in 1988, before the effective

date of the federal legislation.

718

VARA also does not preempt any activities that violate legal or

equitable rights that are not “equivalent” to any of the rights conferred by VARA with respect to

“works of visual art.”

719

Activities violating legal or equitable rights that extend beyond the life of

713

See, e.g., 73 PA. CONS. STAT. § 2102 (2018) (defining “fine art” as “an original work of visual or graphic art of

recognized quality created using any medium. The term shall include, but not be limited to, a painting, drawing or

sculpture”).

714

See LA. REV. STAT. § 51:2152(7) (2018) (excluding sequential imagery such as motion pictures); ME. REV. STAT. tit. 27,

§ 303(1)(D) (2018) (excluding sequential imagery such as motion pictures); N.J. STAT. § 2A:24A-3(e) (2019) (excluding

sequential imagery such as motion pictures). But see 815 ILL. COMP. STAT. 320/1(7)(a) (2018) (including videotape); MASS.

GEN. LAWS ch. 231, § 85S(b) (2017) (including audio and video tape and film); N.M. STAT. § 13-4B-2(B) (2018) (including

audio and videotape and film).

715

Visual Artists Rights Act of 1990, Pub L. No. 101-650, § 605 (1990) (codified at 17 U.S.C. § 301(f)).

716

H.R. REP. NO. 101-514, at 21 (1990) (quoting 1989 VARA Hearing at 36 (written statement of Ralph Oman, Register of

Copyrights)).

717

See 17 U.S.C. § 301(f)(2)(A).

718

901 F. Supp. 620, 626–27 (S.D.N.Y. 1995).

719

17 U.S.C. § 301(f)(2)(B).

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the author are also not preempted under this provision.

720

Thus, post-mortem rights for artists

under state laws that address misattribution, mutilation, or destruction of works of visual art

likely remain available to eligible parties.

721

For determining when VARA preempts a plaintiff’s state law claim, the courts follow the

standard for determining preemption under the broader Copyright Act. For preemption to occur,

the work of authorship in which rights are claimed must fall within the subject matter of

exclusive rights within the general scope of copyright.

722

For example, the U.S. District Court for

the Southern District of New York in Board of Managers of Soho International Arts Condominium v.

City of New York held that an artist’s claim under New York’s AARA regarding the destruction of

a mural on a building was preempted by VARA.

723

The court found that the mural falls within

the subject matter of copyright and that the integrity rights under AARA are equivalent to those

under VARA. While the artist argued that the rights under AARA are not equivalent to VARA’s

rights as AARA does not limit the right of integrity to “works of recognized stature” as under

VARA, the court disagreed stating that preemption can occur even when the state statute is

broader.

724

The court further emphasized that VARA and AARA have nearly identical provisions

regarding the right of integrity; and thus the rights under AARA are “equivalent” to VARA’s

rights for the purposes of the preemption analysis.

725

The limited availability of relevant case law leaves many questions unanswered regarding

the drafting and interpretation of VARA’s preemption provision. For example, it is unclear

whether the phrase “with respect to works of visual art to which the rights conferred by section

106A apply” would permit claims concerning works that do not meet section 101’s definition of a

“work of visual art” or would preempt any claims relating to “pictorial, graphic, or sculptural”

works. The legislative history states that “works that are not covered by the law, such as

audiovisual works, photographs produced for non-exhibition purposes” would not be

720

17 U.S.C. § 301(f)(2)(C).

721

See, e.g., CAL. CIV. CODE § 987(g)(1) (2019); MASS. GEN. LAWS ch. 231, § 85S(g) (2017).

722

See H.R. REP. NO. 101-514, at 21 (1990).

723

No. 01 Civ. 1226, 2003 WL 21403333, at *16 (S.D.N.Y. June 17, 2003), reheard on other grounds, No. 01 Civ. 1226, 2005 WL

1153752 (S.D.N.Y. May 13, 2005).

724

See Bd. of Managers of Soho Int’l Arts Condo. v. City of New York, No. 01 Civ. 1226, 2003 WL 21403333, at *14 (S.D.N.Y.

June 17, 2003), reheard on other grounds, No. 01 Civ. 1226, 2005 WL 1153752 (S.D.N.Y. May 13, 2005); see also H.R. REP. No.

101-514, at 21 (1990) (stating that VARA “will preempt a State law granting the right of integrity in paintings or

sculpture, even if the State law is broader than Federal law”).

725

Bd. of Managers of Soho Int’l Arts Condo., 2003 WL 21403333.

U.S. Copyright Office Authors, Attribution, and Integrity

127

preempted.

726

If claims for these types of works are not preempted, then works that do not meet

the limited definition of a “work of visual art” may be able to claim potentially greater remedies

under state law.

727

5. Contracts and Licenses

Contracts and licenses, which are governed by state law, have been at the forefront of

protecting moral rights in the U.S. A tradition of private ordering was an important part of the

U.S. patchwork of moral rights when the United States joined the Berne Convention.

728

Although

the practice of bargaining with the rights of attribution and integrity has its critics, the use

remains common. The Office has identified five main types of contracts, the use of which affect

authors’ moral rights.

• Party-Negotiated. Two-party licenses negotiated between an author and a user

(such as a publisher or a recording company) are fundamental to many copyright

industries. In such negotiated licenses, authors may include or trade the right of

attribution and the right of integrity as desired, based on bargaining power.

729

During the hearings leading up to the U.S. joining the Berne Convention, many

stakeholders noted the moral rights aspects of such agreements.

730

726

H.R. REP. NO. 101-514, at 21 (1990).

727

See Gegenhuber v. Hystopolis Prods., Inc., No. 92 C 1055, 1992 WL 168836 (N.D. Ill. July 13, 1992); see also Gegenhuber v.

Hystopolis Prods., Inc., 660 N.E.2d 107 (1995) (holding that attribution claims relating to puppets, costumes, sets, and the

performance of a puppet show are not preempted by VARA as the works do not qualify as “works of visual art.”).

728

See H.R. REP. NO. 100-609, at 34 (1988), reprinted in 1987 BCIA Hearings at 1043 (explaining that the hearing testimony

support the majority view that “there is a composite of laws in this country that provides the kind of protection

envisioned by Article 6bis” and that this composite includes contracts.); see also 1987 BCIA Hearings at 350 (written

statement of David Ladd on behalf of the Coalition to Preserve the American Copyright Tradition) (discussing how

authors may use contracts to control integrity of their work.); id. at 639 (statement of David Lawson) (discussing the use

of contracts to secure rights of integrity and attribution in the architecture industry); id. at 697 (statement of Barbara A.

Ringer) (discussing the patchwork of moral rights and how contracts fit in the patchwork); id. at 824 (written statement

of the Association of American Publishers) (discussing membership views that contracts and long-established trade

practices were in compliance with Berne Article 6bis); id. at 970–971 (written statement of the Honorable Carlos J.

Moorhead) (explaining that the administration’s proffered Berne Implementation bill “proceeds from the assumption

that the totality of U.S. law, including…common law rights of contract…provide protection for the rights of paternity

and integrity sufficient to comply with the Berne Convention”).

729

See AAP Initial Comments at 5; CCIA Initial Comments at 5; DGA/WGAW Initial Comments at 4; SAG-AFTRA Initial

Comments at 2.

730

See, e.g., 1987 BCIA Hearings at 47 (written statement of Ralph Oman, Register of Copyrights and Assistant Librarian

for Copyright Services, Library of Congress) (“Contracts between authors and publishers may provide [moral rights].”);

id. at 145 (written statement of Donald J. Quigg, Assistant Secretary and Commissioner of Patents and Trademarks)

(“The Administration’s bill reflects the view taken by many copyright experts that the totality of current U.S. law,

U.S. Copyright Office Authors, Attribution, and Integrity

128

• Industry-Negotiated. Large, complex, well-established copyright industries such as

the American film industry operate under heavily-negotiated employment

agreements that govern a myriad of topics including copyright ownership and

licensing.

731

The agreements generally bind large groups as parties with a guild or

association on one side and movie studios or production companies on the other.

732

Known as collective bargaining agreements, these agreements exist partly to offset

the loss of copyright by individual contributors under the work-made-for-hire

doctrine.

733

• Works-made-for-hire. “Work-made-for-hire” refers to two very specific situations as

defined in section 101 of the U.S. Copyright Act. The first situation is when a work

is created by an employee in the scope of employment. The second covers works

in nine categories created by independent contractors who have a written

agreement with the commissioning party confirming the work is intended to be a

work-made-for-hire.

734

When a work is made for hire, the employer or

including . . . contract rights . . . provides sufficient protection for the rights of paternity and integrity.”); id. at 225

(statement of Irwin Karp, Chairman, Ad Hoc Working Group on U.S. Adherence to the Berne Convention) (discussing

clauses in motion picture contracts dealing with transfers of rights of integrity).

731

See MPAA Initial Comments at 14 (“These CBAs [collective bargaining agreements], negotiated by sophisticated

attorneys and business people on both sides, cover in fine detail virtually every conceivable aspect of the relationship

between the producer and certain creative talent, including compensation and working conditions. . . . [T]he CBAs also

protect individuals’ rights of attribution and integrity by contract.”).

732

See, e.g., Directors Guild of America, Inc. Basic Agreement of 2014, at 1–7 (July 1, 2014); 2017 Memorandum of

Agreement Between the Screen Actors Guild-Am. Fed’n of Television and Radio Artists and the All. of Motion Picture

& Television Producers, at 70–76 (Sept. 29, 2017).

733

See DGA/WGAW Initial Comments at 1 (noting that because writers’ and directors’ contributions often fall under the

work-made-for-hire doctrine, that “statutory provision gives producers a significant power that is taken away from

American audiovisual creators (writers and directors)” but that “in the U.S., the Guilds have used the process of

collective bargaining to enshrine creative and economic benefits for their members, including provisions that partially

address moral rights of writers and directors”).

734

The Copyright Act defines a work made for hire as either:

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion

picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional

text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed

by them that the work shall be considered a work made for hire.

17 U.S.C. § 101.

U.S. Copyright Office Authors, Attribution, and Integrity

129

commissioning party is considered to be the author of the work for copyright

purposes.

735

• Author-dictated. Author-dictated licenses are written by (or at the request of) the

author to exactly match their desired terms. Examples of such licenses include

shrink-wrap, click-wrap, and other methods of presenting licenses in terms of

service. Authors, generally companies in these situations, can choose to require

attribution and to prohibit derivative works as they see fit.

• Author-chosen. Author-chosen licenses are generally pre-made documents, such as

those developed by Creative Commons, that are selected and applied by the

author.

736

a) The Role of Contracts in Moral Rights

The freedom to include or exclude moral rights from an agreement is a key element of

American copyright law that proponents maintain has long provided authors with the credit and

control they desire over their works while allowing users to make modifications necessary to the

use of the work. Public comments in response to the Office’s Notice of Inquiry reveal that some

stakeholders believe contractual agreements effectively protect moral rights

737

while others assert

that is not the case.

738

Those who argue that contractual agreements are an appropriate and

735

See 17 U.S.C. §201(b). This allows a single party to control the rights in works created by many hands. See also

MPAA Initial Comments at 7 (explaining the importance of the work-made-for-hire doctrine, “[g]iven the large number

of creative contributors to a major motion picture”).

736

Creative Commons offers a suite of licenses, including several open license options as well as more restrictive

licenses. All current Creative Commons licenses include an attribution requirement, and authors who wish to preserve

their right of integrity can choose licenses that reserve their derivative work rights. There are two license options that

reserve the right to make derivative works, a feature referred to as “NoDerivatives.” These licenses are the BY-ND

(Attribution NoDerivatives) and BY-NC-ND (Attribution NonCommercial NoDerivatives). See Licensing Types,

CREATIVE COMMONS, https://creativecommons.org/share-your-work/licensing-types-examples/ (last visited Mar. 22,

2019). Creative Commons also offers other legal tools related to placing or recognizing works in the public domain. See

CC0 1.0 Universal (CC0 1.0) Public Domain Dedication, CREATIVE COMMONS, https://creativecommons.org/publicdomain/

zero/1.0/ (last visited Mar. 22, 2019).

737

See, e.g., AAP Initial Comments at 5 (arguing that addressing attribution and integrity as part of contracts “gives

authors and publishers the necessary flexibility to agree on how to address these issues as they see fit”); CCIA Initial

Comments at 3 (“An author can always choose to license works in a manner to ensure attribution and integrity if they

so choose.”); NMPA Reply Comment at 12 (stating that “contractual rights, and the process for adjudicating the

problem, can and almost always do offer more comprehensive and efficient solutions than a legislative alternative”);

SAG-AFTRA Initial Comments at 2 (“But to the American performer, there are perhaps no greater rights than the

ability to enforce contracts. . . . Contracts, whether entered into individually or through union representation, provide

performers flexibility to negotiate for fair compensation, the sorts of moral rights articulated in the [WIPO Internet]

treaties, and much more.”).

738

See, e.g., Authors Guild Initial Comments at 8 (As for contract law, it is not a solution to moral rights.”); CVA Initial

Comments at 9 (“Unfortunately, most artists are lax or ill-informed about creating written contracts for the sale or

U.S. Copyright Office Authors, Attribution, and Integrity

130

effective approach to moral rights cite flexibility, control, and certainty as benefits. For example,

the American film industry has been using contracts to address moral rights at least as far back as

the 1930s and continues to do so today.

739

The music industry has also spoken on the value of

contracts as a means of addressing attribution and integrity interests.

740

The importance of such

flexibility in the publishing world has been noted each time the United States has discussed the

possibility of statutorily recognizing moral rights.

741

The American Association of Publishers

recently noted that contracts give “authors and publishers the necessary flexibility to agree on

how to address” attribution and integrity.

742

Indeed, one authors group pointed out that contracts

licensing of their work); CRA Reply Comments at 3 (“The CRA supports the argument of the Authors Guild, Inc. that

contracts provide no solution given the imbalance of negotiating power between authors and publishers.”); IFJ Initial

Comments at 9 (Contract provisions cannot substitute for enforceable statutory moral rights.”); SCL Initial Comments

at 3 (“The Society of Composers & Lyricists disagrees with the William Strauss report [STUDY NO. 4: THE MORAL RIGHT

OF THE AUTHOR (1959)] that states a patchwork of common laws, such as torts and contracts is sufficient to cover moral

rights protections for an author.”).

739

See MPAA Initial Comments at 2 (“Through the existing legal framework and myriad contractual agreements,

producers obtain the valuable services of individual creators as well as the rights necessary to exploit the finished

product in accordance with their business judgment.”); Letter from Wallace McClure, Chairman, Inter-Departmental

Comm. on Copyright, to Sen. F. Ryan Duffy (May 18, 1935) (on file with the Wisconsin Historical Society) (explaining

that film studios paid for the right to modify a work when licensing the work from author).

740

See A2IM Reply Comments at 4 (“Many independent record agreements, in all their different iterations, already

incorporate and address attribution and integrity rights.”); RIAA Reply Comments at 2 (“[C]ontracts between artists

and record labels routinely include provisions that address attribution.”).

741

See 1987 BCIA Hearings at 319 (additional material submitted by Kenneth W. Dam, Vice President, Law and External

Affairs, IBM) (“Preventing authors from entering binding contractual arrangements . . . could significantly impair

commercial flexibility and make publishers unwilling to invest in works which may require modification to be

marketed effectively. ‘This would not only have the result of restricting the market for artistic works in general, but

would especially harm those authors who are more than willing to allow changes to be made in their work to render

them marketable. The consequence to the public at large would be a reduced access to intellectual and artistic works.’”)

(quoting Comment, Protection of Artistic Integrity: Gilliam v. American Broadcasting Companies, 90 HARV. L. REV. 473,

479 (1976)). In December of 1937, Senator F. Ryan Duffy received at least five letters with identical requests for

reservations to the Berne Convention. One of the included requests was for a reservation that would protect the

sanctity of contracts with respect to moral rights. Each letter included the same reservation language: “The

safeguarding of contractual rights between the producers and users of copyrightable material unfettered by the theory

‘le droit moral.’” Letter from Cass Canfield, President, Harper & Bros. Publishers, to Sen. F. Ryan Duffy (Dec. 15, 1937)

(on file with the Wisconsin Historical Society); Letter from Alfred A. Knopf, President, Alfred A. Knopf, Inc., to Sen. F.

Ryan Duffy (Dec. 21, 1937) (on file with the Wisconsin Historical Society); Letter from Frank L. Dodd, President, Dodd,

Mead & Co., Inc. Publishers, to Sen. F. Ryan Duffy (Dec. 16, 1937) (on file with the Wisconsin Historical Society); Letter

from John Macrae, President, E.P. Dutton & Co., Inc. Publishers, to Sen. F. Ryan Duffy, (Dec. 14, 1937) (on file with the

Wisconsin Historical Society); Letter from Frederic G. Mulcher, Chairman, Copyright Comm., R. R. Bowker Co.

Publishers, to Sen. F. Ryan Duffy, Comm. on Foreign Relations (Dec. 14, 1937) (on file with the Wisconsin Historical

Society).

742

AAP Initial Comments at 5.

U.S. Copyright Office Authors, Attribution, and Integrity

131

can assist in protecting moral rights.

743

A contract concerning a work of authorship may take

account of such aspects as how to include attribution in different formats, the author’s desires,

and, as the RIAA pointed out, “the commercial context in which those works will be distributed,

promoted and otherwise exploited.”

744

In some sectors, authors and publishers can also reach

agreement after publication or distribution to make changes to previously agreed terms.

745

Over the past century there have been many examples of contracts allowing authors and

users of works to make mutually beneficial arrangements on attribution and modifications.

Collective bargaining agreements in the film industry have particularly been highlighted for their

role.

746

When testifying before the House of Representatives in 1936, Edwin P. Kilroe, Chairman

of the Copyright Committee of the Hays organization (predecessor to the Motion Picture

Association of America (“MPAA”)), emphasized both the importance of being able to alter a story

on which a film is based and the role contracts play in allowing authors to limit the rights of the

studio to alter the underlying work.

747

Fifty years later, in testimony before the House, the

Directors’ Guild expressed similar sentiments regarding the importance of contracts in preserving

rights against alteration when it discussed its opposition to the practice of colorization without

director consent.

748

The author-dictated and author-chosen contract models have offered additional

opportunities for authors to preserve their moral rights. Authors have found value in the ability

to use Creative Commons licenses to explicitly require attribution in the manner they desire or to

743

See Authors Alliance Initial Comments at 8 (“Authors can currently realize attribution, integrity, and other non-

economic authorial rights by harnessing their copyrights and insisting on license terms that vindicate those rights.”).

But see IFJ Initial Comments at 9 (asserting that moral rights must be unwaivable to be effective, stating that “larger

publishers and broadcasters routinely impose waivers in contracts presented without the possibility of negotiation”).

744

RIAA Reply Comments at 2–3.

745

This includes handling issues such as removing an author’s attribution at the request of an author. The Committee

on Publication Ethics has published guidelines to help publishers navigate such requests. See Changes in Authorship –

(d) Request for Removal of Author after Publication, COMM. ON PUBL’N ETHICS, https://publicationethics.org/files/

Authorship%20D.pdf (note that in this example requested removal is done at discretion of the publisher).

746

See DGA/WGAW Initial Comments at 4–6 (noting that directors’ attribution and full control of the integrity of the

“director’s cut” are preserved in collective bargaining agreements, but that it is production companies who “have

ultimate authority over the final product of the project”); MPAA Reply Comments at 5–6; SAG-AFTRA Initial

Comments at 9–11.

747

Revision of Copyright Laws Hearings at 1013 (statement of Edwin P. Kilroe, Attorney, Twentieth Century Fox Film

Corporation and Movietonews, Inc.) (reading a statement by the Board of Trade of England).

748

See 1987 BCIA Hearings at 418–19 (written statement of the Directors Guild of America) (expressing concerns that

directors who did not have such provisions in their contracts had no legal means to object to alterations of which they

did not approve).

U.S. Copyright Office Authors, Attribution, and Integrity

132

limit modifications of works.

749

These licenses, which are new since the United States joined the

Berne Convention, can protect attribution and integrity interests. Authors can easily choose the

license they would like through the Creative Commons license chooser tool without the cost of

engaging a lawyer to write a license.

750

But these pre-made, author-chosen licenses are not

appropriate in all instances, limiting their utility as mechanisms for protection of attribution and

integrity interests for many artists. For example, almost all of these licenses allow a user to

redistribute the original work for noncommercial purposes, and thus use of a Creative Commons

license would not be appropriate for an author wishing to maximize compensation for their

work.

751

Instead, such licenses are more appropriate for authors who either do not want to

monetize their work at all, or who only want to monetize some rights in their work, such as the

creation of derivative works

752

or commercial uses of their original work.

753

In the latter case,

users and authors would still need to negotiate a separate license for the creation of derivative

works or for commercial uses of the original work. For this reason, author-chosen licensing

749

See Authors Alliance Initial Comments at 8; PK Initial Comments at 1. Creative Commons is an international

nonprofit organization founded in 2001 with the goal of creating content licensing options between full copyright and

the public domain. See Hal Plotkin, All Hail Creative Commons / Stanford Professor and Author Lawrence Lessig Plans a Legal

Insurrection, S.F. GATE (Feb. 11, 2002), https://www.sfgate.com/news/article/All-Hail-Creative-Commons-Stanford-

professor-2874018.php.

750

The Creative Commons license chooser is available at http://creativecommons.org/choose. It walks licensors through

two questions to help them find the appropriate license for how they would like their work to be used: “Allow

adaptations of your work to be shared? Allow commercial uses of your work?”

751

See ASJA Initial Comments at 7; Mira T. Sundara Rajan, Reply Comments Submitted in Response to U.S. Copyright

Office’s Jan. 23, 2017, Notice of Inquiry at 12 (May 15, 2017) (“Sundara Rajan Reply Comments”); NWU-SFWA Joint

Initial Comments at 9–10.

752

The two NoDerivatives licenses allow a licensee to “produce and reproduce, but not Share, Adapted Material.”

These two licenses are Attribution-NoDerivatives (BY-ND) and Attribution NonCommercial-NoDerivatives (BY-NC-

ND). See Attribution-NoDerivatives 4.0 International, CREATIVE COMMONS, http://creativecommons.org/licenses/by-

nd/4.0/legalcode (last visited Mar. 22, 2019) (section 2(a)(1)(B) of the license terms lays out this part of the scope);

Attribution-NonCommercial-NoDerivatives 4.0 International, CREATIVE COMMONS, http://creativecommons.org/licenses/by-

nc-nd/4.0/legalcode (last visited Mar. 22, 2019) (section 2(a)(1)(B) of the license terms lays out this part of the scope).

753

The three noncommercial licenses all require attribution and do not allow any uses “primarily intended for or

directed towards commercial advantage or monetary compensation.” They are: BY-NC (Attribution NonCommercial);

BY-NC-SA (Attribution NonCommercial ShareAlike), which also requires that any derivative works be licensed under

the same or a compatible license; and BY-NC-ND (Attribution, NonCommercial NoDerivatives), which prohibits

sharing derivative works. See Attribution-NonCommercial 4.0 International, CREATIVE COMMONS,

http://creativecommons.org/licenses/by-nc/4.0/legalcode (last visited Mar. 22, 2019) (sections 1(i) and 2(a) lay out this

information); Attribution-NonCommercial-ShareAlike 4.0 International, CREATIVE COMMONS,

http://creativecommons.org/licenses/by-nc-sa/4.0/legalcode (last visited Mar. 22, 2019) (sections 1(k) and 2(a) lay out

this information); Attribution-NonCommercial-NoDerivatives 4.0 International, CREATIVE COMMONS,

http://creativecommons.org/licenses/by-nc-nd/4.0/legalcode (last visited Mar. 22, 2019) (sections 1(h) and 2(a) lay out

this information).

U.S. Copyright Office Authors, Attribution, and Integrity

133

models such as the Creative Commons licenses are best suited for protecting attribution and

integrity interests in connection with non-economically compensated uses

Author-dictated licenses can also preserve the moral right of integrity.

754

For example,

license terms of the Regular License on design platform Envato Market allow waiver of some

aspects of the integrity right by allowing licensees to remove unwanted elements from works that

they license, but preserve other aspects by prohibiting the extraction and use of a single element

of the work for use on its own.

755

For example, a website template licensee can delete icons from

the template, but the icons cannot be removed and used in other templates.

756

In this way, author-

dictated licenses give authors more control over their attribution and integrity interests, but the

non-negotiated nature of these licenses means fewer options for authors and users to come to

agreement on other potential provisions.

b) Concerns about Protecting Moral Rights Through Contract

Concerns over using contracts and other private agreements to protect moral rights tend

to focus on two things: privity and alienability. The privity requirement for contractual

relationships affects whether negotiated moral rights protections will be preserved with

downstream uses. Alienability affects the waiving of copyright rights that one party to an

agreement may require. The concern is that rights may be waived in licensing due to lack of

bargaining power rather than true desire to part with such rights. Additionally, of course, private

agreements are purely voluntary and do not provide legal baselines that affect all parties

regardless of bargaining power, as would statutory moral rights.

(1) Privity

A contract cannot bind anyone who is not a party to the contract. The Creative Commons

licenses address this issue by structuring their licenses so that every down-stream user licenses

from the original licensor, thus creating new privity between new parties.

757

But for licenses

754

Cf. U.S. COPYRIGHT OFFICE, SOFTWARE-ENABLED CONSUMER PRODUCTS 4 n.26 (2016), available at

https://www.copyright.gov/policy/software/software-full-report.pdf (discussing the limits that software licensees may

encounter, such as how devices with licensed software can be used).

755

See Regular License, ENVATOMARKET, http://audiojungle.net/licenses/terms/regular (last visited Mar. 22, 2019). Envato

Market describes itself as “a collection of themed marketplaces, where creatives sell digital assets.” For example, users

can purchase Photoshop actions, video footage, WordPress themes, and plugins. See Envato Market, ENVATO,

http://envato.com.

756

See Regular License, ENVATOMARKET, http://audiojungle.net/licenses/terms/regular (last visited Mar. 22, 2019).

757

See, e.g., Attribution-NonCommercial-ShareAlike 4.0 International, CREATIVE COMMONS,

https://creativecommons.org/licenses/by-nc-sa/4.0/legalcode (last visited Mar. 22, 2019) (section 2(a)(5)(A) of the license

terms states that in terms of downstream recipients “[e]very recipient of the Licensed Material automatically receives

an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License”).

U.S. Copyright Office Authors, Attribution, and Integrity

134

where the terms are negotiated between specific parties, privity remains a concern.

758

For

example, if Party A licenses a work to Party B with a requirement that all uses of the work include

attribution, and Party C uses the work without a license, there is no requirement for Party C to

obey Party B’s promise to attribute the work to Party A. In the publishing world, this can happen

when digital pirates circulate misattributed, unauthorized copies of books; the pirates have no

contractual obligation to the author that can be enforced.

759

However, agreements may specify that certain rights carry through to any sublicensees.

For example, if Party A licenses a work to Party B with a requirement that all uses of the work

include attribution, Party A can also require that any sublicenses issued by Party B also include

this term. When Party C sublicenses the work from Party B, Party A’s attribution requirement

will be preserved. Record labels routinely do this when licensing works to third parties.

760

(2) Alienability

Attribution and integrity, like the right of reproduction or the ability to exercise a right in

a certain jurisdiction, are sticks in the larger bundle of rights that an author can exchange and

trade.

761

As traditionally conceptualized in many common law countries, moral rights are

alienable in the sense that they are waivable—that is they can be traded away—but not

transferable except for devolution to heirs upon death of the author. Authors generally cannot

sell the right to sue for lack of attribution or for modifications to which they object. Moral rights

may be waived either through non-inclusion or through explicit waiver language.

762

Making

moral rights inalienable would remove them from the contracting process entirely.

On one hand, the ability to waive moral rights is beneficial because it creates market

efficiency by allowing each author and user to assign their own value to the rights being

758

See, e.g., Authors Guild Initial Comments at 9; CVA Initial Comments at 9; DGA/WGAW Initial Comments at 7.

759

See Authors Guild Initial Comments at 9.

760

See RIAA Reply Comments at 2.

761

See, e.g., CCIA Initial Comments at 5 (noting that authors can address contract issues by “seeking greater

consideration in exchange for foregoing attribution, or receiving less consideration where the specific use makes

attribution desirable”); Kernochan Center Initial Comments at 12 (“[A]n author may have to trade attribution for other

payments or protections she might otherwise seek.”).

762

ASJA Initial Comments at 2 (“Recently, ASJA members, many of whom write for print and online magazines and

other publications on a freelance basis, are noting something new in their contracts with publishers: clauses saying

they waive any moral rights claims to their work or the management of it.”).

U.S. Copyright Office Authors, Attribution, and Integrity

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exchanged.

763

On the other hand, proponents of making moral rights inalienable argue that

allowing waiver can result in a default status quo of waiver in every agreement.

764

Proponents of maintaining the alienability of moral rights stress that this keeps current

contracts from being disturbed

765

and allows future agreements to account for differing

circumstances.

766

They point out that prohibiting waiver by making moral rights inalienable

impedes the freedom to contract. As both the National Music Publishers’ Association and the

American Association of Independent Music opine, a clause waiving moral rights “is simply too

much of a material term of a contract” for statutory override.

767

Additionally, authors sometimes

want to release their works directly into the public domain or with as few strings as possible.

768

The ability to waive moral right helps facilitate such action.

769

763

See, e.g., Christopher Buccafusco & Christopher Jon Sprigman, Joint Comments Submitted in Response to U.S.

(explaining economic efficiency of contract negotiations and the findings of their empirical research that “[t]he current

regime [where the default rule is to not provide attribution] allows authors to request attribution during licensing, and,

in doing so, it increases the likelihood that licenses for productive uses of works will take place”); CCIA Initial

Comments at 5 (noting that contracting for moral rights in mutual and voluntary agreements “results in optimal

outcomes for both parties”); NMPA Reply Comment at 4 (pointing out that the moral rights patchwork, which includes

contracts, “forms a healthy moral rights jurisprudence that . . . brings certainty and efficiency to enforcement of these

rights in the marketplace”).

764

See Authors Alliance Initial Comments at 9 (discussing the pros and cons of waiver and pointing out that “easy

waivability is also a matter of concern as this may negate or weaken the benefit that statutory recognition of

noneconomic authorial rights would otherwise provide authors in their negotiations”); IFJ Initial Comments at 9

(noting that in the United Kingdom and Ireland, jurisdictions that allow waiver of moral rights, “larger publishers and

broadcasters routinely impose waivers in contracts presented without the possibility of negotiation”).

765

See BMI Reply Comments at 2 (“So long as moral rights are waivable, then such rights are not likely to upset current

contract practices.”); NMPA Reply Comment at 7 (asserting that maintaining contractual moral rights waivers is

important because “[a]dopting a moral rights law that would override carefully negotiated contractual terms will cause

significant disruption and uncertainty, depriving the publisher of an essential bargained-for term that may severely

limit their rights to fully exploit the musical work, engendering a reciprocal negative effect on its songwriter”).

766

See Sundara Rajan Reply Comments at 13 (discussing how waivability of moral rights can address needs of various

industries).

767

NMPA Reply Comment at 7; A2IM Reply Comments at 4.

768

See, e.g., Authors Alliance Initial Comments at 9 (discussing the pros and cons of waiver and noting that “[o]n the one

hand, it is important that these rights be waivable such that authors can dedicate their works to the public domain with

‘no strings attached’”).

769

While the licenses in the Creative Commons license suite preserve moral rights, Creative Commons also has a legal

tool designed to place works directly into the public domain. This tool, called CC0 is designed to waive all copyright

and related rights. However, as discussed above, moral rights are unwaivable in many foreign jurisdictions—or at least

the ability to waive them is unclear. The CC0 tool addresses this issue by with a fallback royalty-free, non-transferable

license and an affirmation not to enforce moral rights. See CC0 1.0 Universal, CREATIVE COMMONS,

U.S. Copyright Office Authors, Attribution, and Integrity

136

Proponents of making moral rights inalienable explain that when parties have unequal

negotiating positions, authors may be forced to trade rights they do not really want to trade in

exchange for any exploitation of their work.

770

For example, the American Society of Journalists

& Authors points out that the majority of freelance journalists are required to sign contracts

waiving any moral rights as a condition for obtaining a writing job; there is no negotiation on this

point.

771

In addition, in the case of joint works, because any single coauthor may wholly license a

coauthored work, each coauthor of a work has the power to use as bargaining chips the rights of

all the authors.

772

Some industries have developed norms for addressing situations in which one

coauthor may affect the attribution or integrity of other coauthors.

773

Proponents of making moral

rights explicitly inalienable stress that allowing waiver means that contracts would frequently

default to waiver, which would significantly weaken any statutorily granted rights.

774

https://creativecommons.org/publicdomain/zero/1.0/legalcode (last visited Mar. 22, 2019). In addition, Creative

Commons has introduced a system for including metadata about the author, title of the work, and the jurisdiction

where the work is being offered under CC0. Embedding the information also requires affirmative consent to release the

work under CC0. See CC0 Waiver, CREATIVE COMMONS, http://creativecommons.org/choose/zero/waiver (last visited

Mar. 22, 2019).

770

Cf. Authors Alliance Initial Comments at 8 (“In practice, however, some authors currently may not feel that they have

sufficient bargaining power to insist upon these terms, or may have assigned their copyrights long ago when such

practices were not widespread.”); CVA Initial Comments at 2 (Mar. 28, 2017) (“[V]isual artists are at a disadvantage in

the negotiation process with a well-armed client.”); SCL Initial Comments at 4 (“[I]n the absence of collective

bargaining, the AV composer has limited negotiation power with respect to rights.”); Sundara Rajan Reply Comments

at 10 (“The ability to develop provisions on moral rights in copyright contracts is typically limited by the unequal

bargaining power of the parties involved.”). But see, NMPA Reply Comment at 6 (“Songwriters gain much more

through contractual bargaining . . . than they would through a one size fits all statutory solution.”).

771

ASJA Initial Comments at 3 (“Since publishers are now inclined to have writers contractually waive moral rights

before the fact, and most writers must sign contracts in order to eat, American writers have no moral rights. A right one

can’t access is not possessed.”).

772

The Copyright Act defines a joint work as one “prepared by two or more authors with the intent that their

contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101. Each

contributor of a joint work owns an undivided interest in the entire work, so, while there are nuances, the general rule

is that a single contributor may license the work without the authorization of the other contributors. See 1 NIMMER ON

773

For example, the Committee on Publication Ethics has produced a flow chart for providing guidance to academic

and scholarly publishers for when a coauthor requests removal of their name from a paper. The actions the publisher

should take include checking with all other coauthors that they agree with such removal. See Changes in Authorship – (d)

Request for Removal of Author After Publication, COMM. ON PUBL’N ETHICS, https://publicationethics.org/files/

Authorship%20D.pdf.

774

See NWU-SFWA Joint Initial Comments at 8 (stating that the “disparity in bargaining power . . . would lead, in

practice, to the inclusion of blanket waivers of moral rights”).

U.S. Copyright Office Authors, Attribution, and Integrity

137

Others argue not that moral rights should be inalienable, but that they should be statutory

so that their exclusion from a contract must be explicit. One commenter maintains that, were

moral rights more explicitly protected in U.S. law, contractual clauses protecting the right of

attribution and integrity would be more common.

775

Empirical research submitted in connection

with this study supports this argument, showing that authors place greater value on moral rights,

and are thus more likely to want them included in contracts, when they already hold these rights

and are negotiating to sell (trade them away) rather than to buy (obtain them).

776

The study

found that affirmative waiver—trading away of rights explicitly granted—has a higher value to

artists than waiver by non-inclusion—not requiring the inclusion of rights otherwise not

granted.

777

As discussed above, this affirmative waiver approach is the one taken by VARA.

778

Given the concerns over both alienability and inalienability of moral rights, and the

capability of contracts to address privity issues with restrictions on sublicensing, the Office

recommends that any potential changes to the moral rights patchwork not upset the existing

contractual order. United States copyright law rarely interferes with private agreements, and this

general principle should be maintained with regard to moral rights.

(3) Concerns Unique to Works Made for Hire

Works made for hire present a special set of concerns because under the Copyright Act, a

work-made-for-hire relationship does not involve transferring rights in a work; it instead means

that the employer or commissioning party is the legal author of the work from its inception.

779

This brings up two particular issues: whether works-made-for-hire should have explicit statutory

moral rights attach to them, and, if so, who should be deemed the author for the purposes of

those moral rights.

In the comments received for this study, some argued that moral rights should not attach

to works made for hire because the works, no longer having an explicit connection to the creator,

do not represent part of the creator’s personality.

780

Others suggested that authorship for the

775

Authors Alliance Initial Comments at 4.

776

Buccafusco-Sprigman Joint Initial Comments at 2–5 (“photographers valued the same right somewhere between four

or five times more when they were contemplating selling it versus when they were contemplating buying it”).

777

Buccafusco-Sprigman Joint Initial Comments at 5.

778

VARA provides for very specific waiver “if the author expressly agrees to such waiver in a written instrument signed

by the author.” 17 U.S.C. § 106A(e)(1). That signed instrument must identify the work and its uses, and will only apply

to the specified work and uses.

779

See 17 U.S.C. § 201(b).

780

See BMI Reply Comments at 2 (explaining that “a corporate entity does not have the same personal creative

relationship and interest in the work as does the creator of a work”); CVA Initial Comments at 8.

U.S. Copyright Office Authors, Attribution, and Integrity

138

purpose of moral rights should attach to the creator while economic rights continue to the

employer or commissioning party under the work-made-for-hire doctrine.

781

Congress has frequently reviewed the work-made-for-hire doctrine since it was first

codified in the 1909 Act.

782

In the ensuing century-plus, it has reviewed comments ranging over

the same spectrum as those received for this study, from work-made-for-hire is best as-is, to

suggestions for changes to how the doctrine is applied, to overall skepticism of the concept in

general.

783

Congress has consistently decided that work-made-for-hire is an important element of

U.S. copyright law, as evidenced by the 1909 Act and the 1976 Act. As discussed, under the

current work made for hire system, moral rights like rights of attribution and control over

derivative works can be designated to either the actual creator or the legal author as appropriate.

This flexibility is important and should be preserved.

6. Other Forms of Private Ordering

a) Plagiarism

Attribution is a long held fundamental norm in American society, one whose importance

is instilled from a young age through an emphasis in education systems on proper attribution and

citation.

784

Some argue that such social and professional norms may do better to regulate

attribution than any legal or statutory means, given the highly contextual nature of attribution

781

See CVA Initial Comments at 5 (“The moral right of attribution should include works created by independent

creators created under work made for hire contracts.”); FMC Reply Comments at 4 (“Attribution on works for hire

would allow songwriters proper association with their creative endeavors.”); Music Creators Initial Comments at 3

(suggesting “[e]nactment of specific provisions of the US Copyright Act recognizing the right of attribution for the

actual creative authors of copyrighted works (including creators of so-called ‘works made for hire’), notwithstanding

any waiver of such rights by authors and authors for hire”); NWU-SFWA Joint Initial Comments at 13 (“Legislation is

necessary to protect the moral rights of authors of ‘work for hire.’”).

782

See, e.g., BORGE VARMER, STUDY NO. 13: WORKS MADE FOR HIRE AND ON COMMISSION (1958), reprinted in STAFF OF S.

COMM. ON THE JUDICIARY, 86TH CONG., COPYRIGHT LAW REVISION: STUDIES PREPARED FOR SUBCOMM. ON PATENTS,

TRADEMARKS, AND COPYRIGHTS OF THE COMM. ON THE JUDICIARY, U.S. SENATE, STUDIES 11–13, at 127–43 (Comm. Print 1960)

(including history of consideration of the issue going back to 1906).

783

See generally Definition of Work Made for Hire in the Copyright Act of 1976: Hearing on S. 2044 Before the S. Comm. on the

Judiciary, 97th Cong. (1982); United States Copyright Office and Sound Recordings as Work Made for Hire: Hearing Before the

Subcomm. on Courts & Intellectual Prop. of the H. Comm. on the Judiciary, 106th Cong. (2000).

784

See, e.g., Academic Integrity Policy, BROOKLYN TECHNICAL HIGH SCH., available at http://www.bths.edu/

School_Policies/PDF_Policies/Academic%20Integrity%20-%20Plagiarism.pdf; Student Academic Code of Ethics,

MONTGOMERY COUNTY CMTY. COLL., available at https://www.mc3.edu/about-mccc/policies-and-procedures/student-

academic-code-of-ethics; Harvard College Handbook for Students: Academic Integrity and Academic Dishonesty, HARV. UNIV.,

available at https://handbook.fas.harvard.edu/book/academic-integrity#two; Use of Others’ Material, ASSOCIATED PRESS,

https://www.ap.org/about/news-values-and-principles/telling-the-story/use-of-others-material.

U.S. Copyright Office Authors, Attribution, and Integrity

139

requirements.

785

While a norms-based approach to plagiarism may not be legally enforceable, a

violation of these norms may carry serious consequences.

786

An act of plagiarism can result in a

range of penalties including suspension or expulsion, firing, loss of tenure or revocation of a

license, not to mention the reputational harm that can occur from a mere allegation of

plagiarism.

787

Such policies and norms concerning plagiarism can differ greatly across institutions and

types of media. For instance, as discussed above, the film and television industry has a highly

structured attribution system whereby guilds representing the various contributors to a work

negotiate legally enforceable credit rights with production companies.

788

Other sectors, such as

academia and journalism utilize a less formal, more norms-based approach to attribution.

789

785

See Jonathan Band & Matt Schruers, Dastar, Attribution, and Plagiarism, 33 AIPLA Q.J. 1, 11 (2005); see also

Organization for Transformative Works (“OTW”), Reply Comments Submitted in Response to U.S. Copyright Office’s

Jan. 23, 2017, Notice of Inquiry at 2 (May 15, 2017) (“OTW Reply Comments”). But see National Writers Union

(“NWU”) Reply Comments Submitted in Response to U.S. Copyright Office’s Jan. 23, 2017, Notice of Inquiry at 3 (May

15, 2017) (“NWU Reply Comments”) (noting that a norms-based approach has a limited effect as “ethics and

professionalism are irrelevant to the activities of for-profit corporations”).

786

LCA Initial Comments at 2 (“Although these plagiarism policies are not directly enforceable in a court of law, breach

of these policies can result in punishments far more severe than the remedies for copyright infringement.”).

787

See Stuart P. Green, Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in

Enforcing Intellectual Property Rights, 54 HASTINGS L.J. 167, 174–75 (2002). Some high profile cases of plagiarism have

involved severe consequences at academic and media institutions. See Dan Barry et al., Correcting the Record; Times

Reporter Who Resigned Leaves Long Trail of Deception, N.Y. TIMES (May 11, 2003), https://www.nytimes.com/2003/05/11/

us/correcting-the-record-times-reporter-who-resigned-leaves-long-trail-of-deception.html (Jayson Blair of the New York

Times resigned after it was discovered that he committed “frequent acts of journalistic fraud” over the course of several

years, including plagiarizing material from other news articles); Marc Santora, Columbia Professor in Noose Case Is Fired

on Plagiarism Charges, N.Y. TIMES (June 24, 2008), https://www.nytimes.com/2008/06/24/nyregion/24columbia.html

(Professor Madonna Constantine was sanctioned and later terminated over charges of plagiarizing a former colleague

and former students’ works); see also Maggie Haberman, After Plagiarism Reports, Monica Crowley Won’t Take White House

Job, N.Y. TIMES (Jan. 16, 2017), https://www.nytimes.com/2017/01/16/us/politics/monica-crowley-plagiarism.html

(detailing how a National Security Council candidate ultimately rejected the position after allegations of plagiarism

surfaced).

788

See SAG-AFTRA Initial Comments at 10 (discussing SAG-AFTRA’s collective bargaining agreement provision on

billing); Catherine L. Fisk, Credit Where It’s Due: The Law and Norms of Attribution, 95 GEO. L.J. 49, 77 (2006) (“Fisk,

Credit”).

789

Plagiarism policies in these areas can be articulated both by institutions themselves (see, e.g., Academic Integrity,

COLUM. COLL., http://www.college.columbia.edu/academics/academicintegrity) as well as by professional organizations

(see, e.g., Statement on Standards of Professional Conduct (Updated 2019) –Plagiarism, AM. HIST. ASS’N,

http://www.historians.org/jobs-and-professional-development/statements-standards-and-guidelines-of-the-

discipline/statement-on-standards-of-professional-conduct#Plagiarism; The Washington Post Standards and Ethics, AM.

SOC’Y OF NEWS EDITORS, http://asne.org/content.asp?contentid=335).

U.S. Copyright Office Authors, Attribution, and Integrity

140

Plagiarism policies and norms can also vary within industries. In academia, for example,

attribution norms for multi-author works with large-scale collaborations, such as are common in

scientific fields, tend to be more formal.

790

Attribution norms can also vary depending on the

medium used. For instance, radio or podcast journalism tend to have less stringent norms

governing attribution than print or even television journalism, as giving attribution to every

contributor on air may not be practical.

791

Similarly, in the art world, plagiarism and attribution

norms can vary greatly depending on the medium and type of work, and these norms continue to

evolve as new art forms emerge. While appropriation in art is nothing new,

792

as more extreme

styles of appropriation art, such as those employed by Richard Prince and Jeff Koons, become

normalized, perceptions of what it means to plagiarize another artist’s work in the context of

modern art are shifting.

793

Thus, attribution tends to happen in large part due to the professional or societal

consequences, rather than any legal consequences, of plagiarism. Norms regarding attribution

and what it means to plagiarize have the advantage of being flexible and adaptable as

technologies develop and new means of creating and distributing art and media emerge. The

downside to such norms-based rules is that their very flexibility can result in inconsistent

application, both across time and even within a given field. Still, it is unclear whether institutions

or fields lacking more formal and longstanding policies and procedures regarding plagiarism

would benefit from a statutory attribution right which could standardize these requirements.

Any such right would, of course, need to account for the differences in attribution standards

across different industries, professions, and modes of creative expression.

b) Voluntary Initiatives

In conjunction with legal and regulatory means of enforcing the rights to attribution and

integrity, voluntary initiatives and private ordering also work to secure these rights for authors.

In addition to the systems that have developed around plagiarism, many sectors are developing

their own systems of attribution and industry norms that work to ensure proper attribution for

creators without the use of formalized legal regimes. Similarly, many sectors are also pursuing

790

See Fisk, Credit, 95 GEO. L.J. at 83–84.

791

This may be changing, though, as new technologies in broadcast journalism develop; many podcasts now give on-air

credit to producers, editors, engineers, and even interns. See e.g., Dear Sugars, WBUR, http://www.wbur.org/dearsugar

(each podcast concludes with a reading of the credits).

792

See generally Timothy Anglin Burgard, Picasso and Appropriation, 73 ART BULL., 479 (1991) (discussing Pablo Picasso’s

use of appropriation).

793

See Jonathan Bailey, Why So Many Photographers Hate Richard Prince, PLAGIARISM TODAY (May 21, 2015),

http://www.plagiarismtoday.com/2015/05/21/why-so-many-photographers-hate-richard-prince; Henri Neuendorf, Jeff

Koons Sued Yet Again Over Copyright Infringement, ARTNET NEWS (Dec. 15, 2015), http://news.artnet.com/art-world/jeff-

koons-sued-copyright-infringement-392667; see also Glendon Mellow, How Plagiarized Art Sells for Millions, SCI. AM. (Jan.

9, 2014), http://blogs.scientificamerican.com/symbiartic/how-plagiarized-art-sells-for-millions.

U.S. Copyright Office Authors, Attribution, and Integrity

141

voluntary initiatives to help fill some of the gaps left by the moral rights patchwork in the United

States.

Often, these voluntary initiatives are developed by companies looking to solve problems

with content management in their respective industries. Over the past decade, such initiatives

have become more common as creative industries grapple with maintaining effective means of

providing attribution and preventing unlicensed uses in the digital age. For instance, in 2007,

YouTube launched Content ID, one of the first large-scale content management systems.

794

The

Content ID system scans user-uploaded videos on YouTube against a database of files that have

been submitted by rights holders participating in the program.

795

Once a match has been

identified, rights holders can then choose to block the video, monetize the video by running ads

against it, or track the video’s viewership statistics.

796

Similar digital fingerprinting technologies

are being employed by other content platforms, typically in attempts to combat online piracy.

797

However, these content management technologies also help to combat misattribution, as well as

alerting authors to instances where their work is being used without attribution. Additionally, by

flagging unlicensed uses, these technologies can allow authors to assert their right of integrity by

preventing or disabling uses of their work that modify or distort their original expression.

Several companies have also created their own content management databases in order to

effectively match creative works to their author and/or rights holders. In 2016, SoundExchange

launched its International Standard Recording Code (“ISRC”) Search Site.

798

Unique ISRC’s are

used to identify sound recordings.

799

The ISRC Search Site provides users with access to

794

See Liz Gannes, YouTube Finally Launches Video ID Tool, GIGAOM (Oct. 15, 2007),

http://gigaom.com/2007/10/15/youtube-finally-launches-video-id-tool.

795

How Content ID works, YOUTUBE, http://support.google.com/youtube/answer/2797370.

796

Id.

797

Other platforms have developed content matching technology similar to YouTube’s. Scribd, a service that provides

access to literary works and allows users to self-publish, established BookID to filter uploaded works. The program

compares reference samples of works in their database with uploaded materials, and a matched upload is blocked. See

BookID, SCRIBD, https://www.scribd.com/copyright/bookid. Audible Magic created filtering technology that is licensed

to social media platforms. Audio and video files uploaded to the platform are matched against files registered with

Audible Magic’s database. If there is a match, the database relays to the platform ownership information and rules

specifying how the owner wants the file to be used. The service is used by SoundCloud, Facebook, Vimeo, Twitch, and

Dailymotion, among others. See Copyright Compliance Service: Compliance Automation for Media Sharing Platforms,

AUDIBLE MAGIC, http://www.audiblemagic.com/compliance-service/#how-it-works.

798

SoundExchange Launches Public Search Website with Access to Industry’s Best ISRC Data, SOUNDEXCHANGE (Mar. 8, 2016),

http://www.soundexchange.com/news/soundexchange-launches-public-search-website-with-access-to-industrys-best-

isrc-data.

799

See About: What is an ISRC?, INT’L STANDARD RECORDING CODE, https://www.usisrc.org/about/index.html. ISRCs are

also used to identify music video recordings.

U.S. Copyright Office Authors, Attribution, and Integrity

142

SoundExchange’s sound recording metadata linked to the ISRC identifier.

800

While this data was

previously available through other sources, SoundExchange’s creation of a single comprehensive

online database allows more accessibility for artists, rights holders, digital music providers, and

listeners to accurately identify sound recordings and locate their related metadata.

Similarly, in addition to their “Content ID” management system, YouTube also recently

adopted the International Standard Name Identifier (“ISNI”) standard number for artists and

songwriters.

801

ISNI’s are unique numbers used to identify the different creators associated with a

work.

802

As a registration agency for ISNI, YouTube will request an identifier be assigned to all

creators, including both performers and authors, whose works are uploaded to the platform.

803

By adopting ISNI, YouTube is attempting to simplify the often complex process of associating a

work with its author or rights owner. The adoption of one standard identifier across the platform

will hopefully allow for more accurate attribution for creators.

Another voluntary initiative working towards ensuring proper attribution and

permissible uses for authors is the Picture Licensing Universal System (“PLUS”) Registry. The

PLUS Registry is run by the non-profit PLUS Coalition whose mission is to “facilitate the

communication and management of image rights.”

804

The Registry currently assigns a unique

identifier to each creator, rights holder, distributor, licensor, and licensee, and in the future it will

allow users to assign unique identifiers to images and manage the information and metadata

associated with each image.

805

Importantly, the PLUS Registry also tracks and allows users to

update the rights information associated with an image, including current contact information for

related creators, rightsholders, and institutions.

806

This allows users to more easily track down

rights holders in order to gain permission for a use or to properly attribute a work.

Companies are also utilizing new technologies, such as blockchain, to develop content

management systems. Kodak has partnered with WENN Digital to launch KODAKOne, an

800

SoundExchange Launches Public Search Website with Access to Industry’s Best ISRC Data, SOUNDEXCHANGE (Mar. 8, 2016),

http://www.soundexchange.com/news/soundexchange-launches-public-search-website-with-access-to-industrys-best-

isrc-data.

801

YouTube Adopts ISNI ID for Artists & Songwriters, ISNI (Jan. 22, 2018), http://www.isni.org/content/youtube-adopts-

isni-id-artists-songwriters.

802

See International Standard Name Identifier (ISO 27729), ISNI, http://www.isni.org/. ISNIs can be used to identify

researchers, investors, writers, artists, visual creators, performers, producers, publisher, and aggregators, among others.

803

YouTube Adopts ISNI ID for Artists & Songwriters, ISNI (Jan. 22, 2018), http://www.isni.org/content/youtube-adopts-

isni-id-artists-songwriters.

804

About: PLUS Coalition, PLUS REGISTRY, https://www.plusregistry.org/cgi-bin/WebObjects/PlusDB.woa/2/wo/

OhbePL99GXyRRAWaE998dg/0.111.27.

805

Id.

806

See id.

U.S. Copyright Office Authors, Attribution, and Integrity

143

image rights management platform.

807

KODAKOne is based on an encrypted, digital ledger of

rights ownership, which photographers can use to manage rights information, receive payment

for licensing their works on the platform, and sell their work on a secure blockchain platform.

808

Similar to YouTube’s Content ID, KODAKOne also provides continual web crawling to monitor

uses of images registered in the KODAKOne system.

809

When an unlicensed use is detected,

KODAKOne will offer infringers an easy payment system to legitimize their uses.

810

Along with voluntary initiatives to develop content management and identification

systems, voluntary initiatives can also take the form of licensing agreements. For instance, Getty

Images and Google have announced the formation of a multiyear global licensing partnership.

811

While the agreement allows for Google to use Getty Images’ content in its products and services,

the agreement also requires Google to modify its image search function to improve attribution of

works.

812

Other modifications Google will need to implement under this initiative include

making copyright disclaimers more prominent and removing “view image” links to the original

image URL.

813

While these types of voluntary initiatives may represent a step forward in filling the gaps

left by the existing moral rights landscape in the United States, such initiatives cannot offer a

comprehensive solution to the problems with attribution and integrity faced across creative

industries. These initiatives are limited in applicability to the specific industry or platform at

hand, and without formal legal requirements, enforceability is confined to a platform’s internal

policies. Moreover, content management technologies―both voluntary and not―raise concerns

about the role of automation in policing content platforms. Digital fingerprinting technologies

can be prone to error, and automated matching systems cannot take into account permissible uses

of copyrighted material such as fair use. The Office supports the on-going use and development

of voluntary initiatives, but recognizes the need for the law to supplement and support these

systems.

* * *

807

KODAK and WENN Digital Partner to Launch Major Blockchain Initiative and Cryptocurrency, KODAK (Jan. 9, 2018),

http://www.kodak.com/US/en/corp/Press_center/KODAK_and_WENN_Digital_Partner_to_Launch_Major_Blockchain

_Initiative_and_Cryptocurrency/default.htm.

808

Id.

809

Id. Note that, while YouTube’s Content ID only crawls YouTube.com, the KODAKOne system crawls the entire web.

810

See id.

811

See Thuy Ong, Google Will Make Copyright Disclaimers More Prominent in Image Search, VERGE (Feb. 9, 2018),

http://www.theverge.com/2018/2/9/16994508/google-copyright-disclaimers-getty-images-search.

812

Id.

813

See id.

U.S. Copyright Office Authors, Attribution, and Integrity

144

To briefly conclude, the Copyright Office believes that this Report demonstrates that the

U.S. moral rights patchwork continues to provide important protections, despite there being

room for improvement. The Copyright Act and other federal and state laws, including unfair

competition and misappropriation, combined with a robust private ordering landscape, provide

authors with a variety of means by which to protect and enforce their attribution and integrity

interests. In particular, the Copyright Office believes that some of the voluntary initiatives in this

space hold the potential to improve authors’ ability to be persistently identified with their works.

The Copyright Office believes that there is an important role for government to encourage and

foster such voluntary initiatives, and will continue to look for opportunities to do so.

However, should Congress wish to strengthen the U.S. moral rights framework, this

Study provides some guidelines for doing so, and the U.S. Copyright Office stands ready to assist

Congress with this task. Our recommendations for amending the Lanham Act and VARA to

better protect attribution and integrity interests, along with our suggestions regarding a new

section 1202A and advice for considering a federal right of publicity, should provide Congress

with several options for bolstering moral rights in the United States.

Specifically, the Office believes that the text of the Lanham Act and the reasoning of the

Dastar decision leave open claims for mis- or non-attribution of creative works in the following

cases: (i) claims for passing off or material distortions of a work; (ii) claims under § 43(a)(1)(B),

and (iii) claims for repackaging of expressive works in a way that misattributes them. However,

Congress may want to consider adopting a narrowly crafted amendment to section 43(a) of the

Lanham Act that would expand the unfair competition protections to include false

representations regarding authorship of expressive works.

Further, the Office has identified three targeted legislative improvements to the Visual

Artists Rights Act, codified in title 17 as section 106A, for consideration by Congress. The first

amendment would clarify that the exclusion for “commercial art” is limited to artworks both

created pursuant to a contract and intended for commercial use. The second amendment would

add language clarifying how courts should interpret the “recognized stature” requirement,

requiring courts to consult a broad range of sources. The third amendment would provide that

no joint author could waive another joint author’s moral rights under VARA without the written

consent of each affected author.

Regarding section 1202, Congress may want to consider adding a new cause of action as

section 1202A to title 17, which would offer a creator the ability to recover civil damages upon

proof that a defendant knowingly removed or altered copyright management information with

the intent to conceal an author’s attribution information. Such a dual intent standard would, in a

manner similar to the existing section 1202, protect against liability for innocent or good faith

removal of CMI, while giving creators a new tool to prevent deliberate efforts to conceal their

authorship of a work.

Finally, Congress may also wish to consider adoption of a federal right of publicity law as

a means to reduce the uncertainty and ambiguity created by the diversity of state right of

U.S. Copyright Office Authors, Attribution, and Integrity

145

publicity laws. A federal right of publicity law, rather than preempting state laws, could serve as

a floor for minimum protections for an individual’s name, signature, image, and voice against

commercial exploitation during their lifetime.

authors, attribution, and integrity: examining moral rights in the united states

u.s. copyright office

appendix a PARTiciPAnTs in ThE symPOsium On

AuThORs, ATTRibuTiOn, And inTEgRiTy:

ExAmining mORAL RighTs in ThE

uniTEd sTATEs

APRiL 18, 2016

U.S. Copyright Office Authors, Attribution, and Integrity

Appendix A

Participants in the

Authors, Attribution, and Integrity:

Examining Moral Rights in the United States Symposium

April 18, 2016

Complete Symposium agenda available at

https://www.copyright.gov/events/moralrights/agenda.pdf

1. Adler, Allan (Association of American Publishers)

2. Aistars, Sandra (George Mason University School of Law and Senior Scholar and

Director of Copyright Research and Policy at the Center for the Protection of Intellectual

Property)

3. Barblan, Matthew (Center for the Protection of Intellectual Property at the George Mason

University School of Law)

4. Besek, June M. (The Kernochan Center for Law, Media and the Arts at Columbia Law

School)

5. Bonneau, Sonya G. (Georgetown University Law Center)

6. Castle, Chris (Christian L. Castle, Attorneys)

7. Crabtree-Ireland, Duncan (SAG-AFTRA)

8. French, Alec (Thorsen French Advocacy, representing Directors Guild of America)

9. Gervais, Daniel J. (Vanderbilt Law School)

10. Gibbs, Melvin (Musician/composer)

11. Ginsburg, Jane C. (Morton L. Janklow Professor of Literary and Artistic Property Law at

Columbia University School of Law)

12. Levy, Paul Alan (Public Citizen Litigation Group)

13. Lowery, David (Songwriter/recording artist)

14. Marks, Steven M. (Recording Industry Association of America)

15. Martin, Scott (Paramount Pictures Corporation)

U.S. Copyright Office Authors, Attribution, and Integrity

16. Miyashita, Yoko (Getty Images)

17. Mopsik, Eugene (American Photographic Artists)

18. O’Connor, Sean M. (University of Washington School of Law)

19. Osterreicher, Mickey H. (National Press Photographers Association)

20. Pierre-Louis, Stanley (Entertainment Software Association)

21. Robinson, Roxana (Authors Guild)

22. Schultz, Mark (Center for the Protection of Intellectual Property at the George Mason

University Law School)

23. Schwartz, Eric J. (Mitchell Silberberg & Knupp LLP)

24. Spelman, Katherine C. (Lane Powell PC)

25. Turow, Scott (Author)

26. Wolfe, Michael (Authors Alliance)

27. Wolff, Nancy E. (Cowan, DeBaets, Abrahams & Sheppard LLP)

28. Yu, Peter K. (Texas A&M University School of Law)

authors, attribution, and integrity: examining moral rights in the united states

u.s. copyright office

appendix B nOTicE Of inquiRy: sTudy On ThE

mORAL RighTs Of ATTRibuTiOn And

inTEgRiTy

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Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Notices

In this Notice, we use the general term ‘‘author’’

to include all creators, including visual artists and

performers.

See Sam Ricketson & Jane C. Ginsburg,

International Copyright and Neighboring Rights:

The Berne Convention and Beyond ¶¶ 10.03–.04, at

587–89 (2d ed. 2006).

See Miha

ly Ficsor, World Intellectual Property

Organization, Guide to the Copyright and Related

Rights Treaties Administered by WIPO and

Glossary of Copyright and Related Rights Terms ¶

BC-6bis, at 44 (2003).

Berne Convention for the Protection of Literary

and Artistic Works art. 6bis(1), Sept. 9, 1886, as

revised July 24, 1971, and as amended Sept. 28,

1979, S. Treaty Doc. No. 99–27 (1986).

SUMMARY

: In accordance with the

provisions of the Federal Advisory

Committee Act (FACA), and after

consultation with the General Services

Administration, the Secretary of Labor

is renewing the charter for the Maritime

Advisory Committee for Occupational

Safety and Health. The Committee will

better enable OSHA to perform its

duties under the Occupational Safety

and Health Act (the OSH Act) of 1970.

The Committee is diverse and balanced,

both in terms of segments of the

maritime industry represented (e.g.,

shipyard employment, longshoring, and

marine terminal industries), and in the

views and interests represented by the

members.

FOR FURTHER INFORMATION CONTACT

Amy Wangdahl, Director, Office of

Maritime and Agriculture, Directorate of

Standards and Guidance, U.S.

Department of Labor, Occupational

Safety and Health Administration,

Room N–3609, 200 Constitution Avenue

NW., Washington, DC 20210; telephone:

(202) 693–2066.

SUPPLEMENTARY INFORMATION

: The

Committee will advise OSHA on matters

relevant to the safety and health of

employees in the maritime industry.

This includes advice on maritime issues

that will result in more effective

enforcement, training, and outreach

programs, and streamlined regulatory

efforts. The maritime industry includes

shipyard employment, longshoring,

marine terminal, and other related

industries, e.g., commercial fishing and

shipbreaking. The Committee will

function solely as an advisory body in

compliance with the provisions of

FACA and OSHA’s regulations covering

advisory committees (29 CFR part 1912).

Authority and Signature

Jordan Barab, Acting Assistant

Secretary of Labor for Occupational

Safety and Health, U.S. Department of

Labor, 200 Constitution Avenue NW.,

Washington, DC 20210, authorized the

preparation of this notice pursuant to

Sections 6(b)(1), and 7(b) of the

Occupational Safety and Health Act of

1970 (29 U.S.C. 655(b)(1), 656(b)), the

Federal Advisory Committee Act (5

U.S.C. App. 2), Section 41 of the

Longshore and Harbor Workers’

Compensation Act (33 U.S.C. 941),

Secretary of Labor’s Order 1–2012 (77

FR 3912, Jan. 25, 2012), and 29 CFR part

1912.

Signed at Washington, DC, on January 13,

2017.

Jordan Barab,

Acting Assistant Secretary of Labor for

Occupational Safety and Health.

[FR Doc. 2017–01407 Filed 1–19–17; 8:45 am]

BILLING CODE 4510–26–P

LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2017–2]

Study on the Moral Rights of

Attribution and Integrity

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of inquiry.

SUMMARY

: The United States Copyright

Office is undertaking a public study to

assess the current state of U.S. law

recognizing and protecting moral rights

for authors, specifically the rights of

attribution and integrity. As part of this

study, the Office will review existing

law on the moral rights of attribution

and integrity, including provisions

found in title 17 of the U.S. Code as well

as other federal and state laws, and

whether any additional protection is

advisable in this area. To support this

effort and provide thorough assistance

to Congress, the Office is seeking public

input on a number of questions.

DATES

: Written comments must be

received no later than 11:59 p.m.

Eastern Time on March 9, 2017. Written

reply comments must be received no

later than 11:59 p.m. Eastern Time on

April 24, 2017. The Office may

announce one or more public meetings,

to take place after written comments are

received, by separate notice in the

future.

ADDRESSES

: For reasons of government

efficiency, the Copyright Office is using

the regulations.gov system for the

submission and posting of public

comments in this proceeding. All

comments must be submitted

electronically. Specific instructions for

submitting comments will be posted on

the Copyright Office Web site at https://

www.copyright.gov/policy/moralrights/

comment-submission/. To meet

accessibility standards, all comments

must be provided in a single file not to

exceed six megabytes (MB) in one of the

following formats: Portable Document

File (PDF) format containing searchable,

accessible text (not an image); Microsoft

Word; WordPerfect; Rich Text Format

(RTF); or ASCII text file format (not a

scanned document). All comments must

include the name of the submitter and

any organization the submitter

represents. The Office will post all

comments publicly in the form that they

are received. If electronic submission of

comments is not feasible due to lack of

access to a computer and/or the

Internet, please contact the Office, using

the contact information below, for

special instructions.

FOR FURTHER INFORMATION CONTACT

Kimberley Isbell, Senior Counsel for

Policy and International Affairs, by

email at [email protected] or by telephone at

202–707–8350; or Maria Strong, Deputy

Director for Policy and International

Affairs, by email at [email protected] or

by telephone at 202–707–8350.

SUPPLEMENTARY INFORMATION

I. Background

The term ‘‘moral rights’’ is taken from

the French phrase droit moral, and

generally refers to certain non-economic

rights that are considered personal to an

author.

Chief among these are the right

of an author to be credited as the author

of his or her work (the right of

attribution), and the right of an author

to prevent prejudicial distortions of the

work (the right of integrity). These rights

have a long history in international

the 20th century when several European

countries included provisions on moral

rights in their copyright laws.

provision on moral rights was first

adopted at the international level

through the Berne Convention for the

Protection of Literary and Artistic

Works (‘‘Berne Convention’’) during its

Rome revision in 1928.

The current

text of article 6bis(1) of the Berne

Convention states: ‘‘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.’’

In contrast to the early adoption of

strong moral rights protections in

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Berne Convention Implementation Act of 1988,

Public Law 100–568, 102 Stat. 2853 (‘‘BCIA’’).

See discussion on the BCIA infra notes 15–23

and accompanying text.

See Moral Rights, Termination Rights, Resale

Royalty, and Copyright Term: Hearing Before the

Subcomm. on Courts, Intellectual Prop., & the

Internet of the H. Comm. on the Judiciary, 113th

Cong. (2014) (‘‘Moral Rights Hearing’’).

Moral Rights Hearing at 4.

Id.

Hearing Before the H. Comm. on the Judiciary,

114th Cong. 34–35 (2015) (written statement of

Maria A. Pallante, Register of Copyrights and Dir.,

U.S. Copyright Office) (‘‘Register’s Perspective

Hearing’’).

of Rep. John Conyers, Ranking Member, H. Comm.

on the Judiciary).

As part of the consideration for possible

accession to the Berne Convention, the general

review of the 1909 Act took more than 20 years and

resulted in the 1976 Copyright Act.

See William Strauss, Study No. 4: The Moral

Right of the Author (1959), in Staff of S. Comm. on

the Judiciary, 86th Cong., Copyright Law Revision:

Studies Prepared for the Subcomm. on Patents,

Trademarks, and Copyrights of the Comm. on the

Judiciary, United States Senate: Studies 1–4, at 109

(Comm. Print 1960).

Strauss at 142. The report rejected the idea of

an ‘‘irreconcilable breach between European and

American concepts of protection of authors’

personal rights,’’ instead concluding that U.S. and

European courts generally arrived at the same

results in upholding the same rights or limitations

on those rights, just in different ways. Id. at 141–

42.

H.R. Rep. No. 100–609, at 33 (1988).

See S. Rep. No. 100–352, at 6 (1988); H.R. Rep.

No. 100–609, at 33 (1988).

See H.R. Rep. No. 100–609, at 37 (1988); S. Rep.

No. 100–352, at 10 (1988); see also Letter from Dr.

rpa

d Bogsch, Dir. Gen., World Intellectual Prop.

Org., to Irwin Karp, Esq. (June 16, 1987), reprinted

in Berne Convention Implementation Act of 1987:

Hearing on H.R. 1623 Before the Subcomm. on

Courts, Civil Liberties & the Admin. of Justice of the

H. Comm. on the Judiciary, 100th Cong. 213 (1987)

(‘‘In my view, it is not necessary for the United

States of America to enact statutory provisions on

moral rights in order to comply with Article 6bis

of the Berne Convention. The requirements under

this Article can be fulfilled not only by statutory

provisions in a copyright statute but also by

common law and other statutes.’’).

See S. Rep. No. 100–352, at 9–10 (1988); H.R.

Rep. No. 100–609, at 37–38 (1988); see also S. Exec.

Rep. No. 100–17, at 55 (1988) (to accompany S.

Treaty Doc. No. 99–27 (1986)) (statement of John K.

Uilkema on behalf of Am. Bar Ass’n before the S.

Comm. on Foreign Relations) (‘‘Whether greater or

lesser moral rights per se should be the subject of

legislative consideration in the United States is a

question that is separate and apart from the Berne

adherence compatibility question.’’).

See 15 U.S.C. 1125(a).

See 17 U.S.C. 106(2).

See 17 U.S.C. 115(a)(2).

See 17 U.S.C. 203.

See H.R. Rep. No. 100–609, at 34 (1988).

Contract law is particularly important for authors to

control aspects of their economic and moral rights.

For example, the collective bargaining agreements

that govern the creation of major motion pictures

often contain explicit requirements with regards to

attribution for actors, writers, directors, and other

guilds. Many copyright sectors that involve

numerous authors and participants in the creative

process, such as filmed entertainment, business and

entertainment software, music production, and

book publishing, also rely on both employment

agreements and the work-for-hire doctrine to

determine ownership issues, which in turn may

include elements related to attribution and

integrity.

Visual Artists Rights Act (VARA) of 1990,

Public Law 101–650, 104 Stat. 5128–29 (codified at

17 U.S.C. 106A). In the Report accompanying H.R.

2690 (Visual Artists Rights Act of 1990), the House

Judiciary provided background information on the

Berne Convention and moral rights, noting that the

Continued

Europe, the United States’ experience

with the concept of moral rights is more

recent. The United States did not adopt

the Berne Convention right away, only

joining the Convention in 1989.

At that

time, the United States elected not to

adopt broad moral rights provisions in

its copyright law, but instead relied on

a combination of various state and

federal statutes to comply with its Berne

obligations.

In July 2014, the Subcommittee on

Courts, Intellectual Property, and the

Internet of the House Judiciary

Committee held a hearing that focused

in part on moral rights for authors in the

United States as part of its broader

review of the nation’s copyright laws.

At that hearing, the Chairman of the

House Judiciary Committee,

Representative Bob Goodlatte, noted

that ‘‘we should consider whether

current law is sufficient to satisfy the

moral rights of our creators or, whether

something more explicit is required.’’

The Ranking Member of the

Subcommittee, Representative Jerrold

Nadler, also indicated his interest in a

further evaluation of the status of moral

rights in the United States, asking ‘‘how

our current laws are working and what,

if any, changes might be necessary and

appropriate.’’

Maria Pallante recommended further

study of moral rights in her testimony

before Congress at the end of the two-

year copyright review hearings

process,

at which time the Ranking

Member of the House Judiciary

Committee requested that the Office

undertake this study.

As part of the

preparation for this study, the Copyright

Office co-hosted a day-long symposium

on moral rights in April 2016 in order

to hear views about current issues in

this area. The Office is now

commencing a formal study on moral

rights and soliciting public input.

A. Moral Rights in the United States

Prior to Implementation of the Berne

Convention in 1989

In the late 1950s, the Copyright Office

and Congress reviewed the issue of

moral rights as part of the larger,

comprehensive review of the copyright

laws leading to a general revision of the

1909 Copyright Act.

In support of the

review, William Strauss completed a

study for the Office entitled ‘‘The Moral

Right of the Author’’ in 1959.

The

report found that U.S. common law

principles, such as those governing tort

and contract actions, ‘‘afford an

adequate basis for protection of [moral]

rights’’ and can provide the same

protection given abroad under the

doctrine of moral rights.

Later, Congress considered the

specific question of ‘‘whether the

current law of the United States is

sufficient, or whether additional laws

are needed, to satisfy [Berne article

6bis’s] requirements.’’

The majority of

those who testified before Congress

argued against any change to U.S. law

concerning an artist’s right to control

attribution or any alteration to his

creation, stating that current U.S. law

was sufficient.

Indeed, WIPO Director

General Dr. A

rpa

d Bogsch explained to

Congress that the United States did not

need to make any changes to U.S. law

to meet the obligations of article 6bis.

Both the House and Senate Judiciary

Committees accepted this conclusion,

finding that U.S. law met the

requirements outlined in the Berne

Convention’s article 6bis based on the

existing patchwork of laws in the

United States, including:

• Section 43(a) of the Lanham Act

relating to false designations of origin

and false descriptions, which could be

applied in some instances to attribution

of copyright-protected work.

• The Copyright Act’s provisions

regarding protection of an author’s

exclusive rights in derivatives of his or

her works;

limits on a mechanical

licensee’s rights to arrange an author’s

musical composition;

and termination

of transfers and licenses.

• State and local laws relating to

publicity, contractual violations, fraud

and misrepresentation, unfair

competition, defamation, and invasion

of privacy.

B. Subsequent Developments After the

U.S. Implementation of the Berne

Convention

Since the United States’

implementation of the Berne

Convention over 25 years ago, there

have been a number of legal and

technological developments affecting

the scope and protection of moral rights.

In 1990, Congress passed the Visual

Artists Rights Act (VARA), codified at

section 106A of the Copyright Act,

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Congress at the time of the BCIA agreed that

existing federal and state laws were sufficient to

comply with the Berne Convention requirements,

but that ‘‘adherence to the Berne Convention did

not end the debate about whether the United States

should adopt artists’ rights laws, and the

Subcommittee on Courts, Intellectual Property, and

the Administration of Justice continued its review

of the issue in [hearings held] in June.’’ H.R. Rep.

No. 101–514, at 8 (1990). Congress cited the

‘‘critical factual and legal differences in the way

visual arts and audiovisual works are created and

disseminated’’ in support of providing additional

protections for visual artists. H.R. Rep. No. 101–

514, at 9 (1990).

See 17 U.S.C. 101 (definition of a ‘‘work of

visual art’’); § 106A(a)(1) (providing for the right of

attribution); § 106A(a)(3) (providing for the right of

integrity). Section 604 of VARA, codified at 17

U.S.C. 113, created special rules for removal of

works visual art incorporated into buildings. Unlike

Berne’s article 6bis, VARA’s protections only apply

to works of visual art.

See H.R. Rep. No. 101–514, at 18 (1990). VARA

permits authors to waive these rights only if

expressly agreed in a written instrument signed by

the author. See 17 U.S.C. 106A(e).

See Visual Artists Rights Act of 1990, Public

Law 101–650, 608, 104 Stat. 5128, 5132 (1990). The

insufficient economic and copyright policy

justification to establish droit de suite in the United

States. See U.S. Copyright Office, Droit De Suite:

The Artist’s Resale Royalty xv (1992), http://

www.copyright.gov/history/droit_de_suite.pdf. In

2013, the Copyright Office responded to a

congressional request and issued a second report

which examined the changes in law and practice

regarding resale royalties, in both the United States

and abroad, since the 1992 report. See U.S.

resaleroyalty/usco-resaleroyalty.pdf.

See U. S. Copyright Office, Waiver of Moral

Rights in Visual Artworks: Final Report of the

www.copyright.gov/reports/waiver-moral-rights-

visual-artworks.pdf (‘‘Waiver of Moral Rights’’).

Waiver of Moral Rights at 183.

539 U.S. 23 (2003). Dastar involved the

distribution of an edited version of a 1949 broadcast

to which Twentieth Century Fox had owned the

work in the public domain. Dastar distributed

copies of the edited series listing Dastar and its

subsidiary as the producer and distributor of the

edited work, rather than Fox. Fox sued for reverse

passing off, claiming Dastar violated section 43(a)

of the Lanham Act’s prohibition against false

designation of origin.

Id. at 35.

Id.at 34.

See id. at 31–32.

Id. at 34 (internal quote marks omitted). The

Supreme Court left open the possibility of a

Lanham Act claim under section 43(a)(1)(B) where,

in advertising for a copied work of authorship, the

copier ‘‘misrepresents the nature, characteristics

[or] qualities’’ of the work. Id. at 38.

See, e.g., Kehoe Component Sales Inc. v. Best

Lighting Prods., Inc., 796 F.3d 576, 587 (6th Cir.

2015); Gen. Universal Sys., Inc. v. Lee, 379 F.3d

131, 148–49 (5th Cir. 2004); Zyla v. Wadsworth, 360

F.3d 243, 251–52 (1st Cir. 2004); Carroll v. Kahn,

No. 03–CV–0656, 2003 WL 22327299, at *5–6

(N.D.N.Y. Oct. 9, 2003).

See, e.g., Jane C. Ginsburg, Moral Rights in the

U.S.: Still in Need of a Guardian Ad Litem, 30

Cardozo Arts & Ent. L.J. 73, 83–87 (2012); Justin

Hughes, American Moral Rights and Fixing the

Dastar ‘‘Gap,’’ 2007 Utah L. Rev. 659 (2007). At

least one commenter has argued that not only do

section 43(a)(1)(B) claims survive Dastar, but so do

some section 43(a)(1)(A) claims. See Hughes at 692–

95.

See WIPO Copyright Treaty art. 1(4), Dec. 20,

1996, 2186 U.N.T.S. 121 (‘‘WCT’’); see also

Summary of the WIPO Copyright Treaty (WCT)

(1996), WIPO, http://www.wipo.int/treaties/en/ip/

wct/summary_wct.html.

See WIPO Performances and Phonograms

Treaty art. 5(1), Dec. 20, 1996, 2186 U.N.T.S. 203

(‘‘WPPT’’). Like the Berne Convention, the WPPT

provides that the duration of protection shall be at

least for the term of economic rights and shall be

governed by national law. WPPT arts. 5(2)–(3).

See WCT art. 12; WPPT art. 19. WCT article 12

and WPPT article 19 define rights management

information to include identification of the author

and owner and terms of use of the work or sound

recording.

See J. Carlos Ferna

dez-Molina & Eduardo Peis,

The Moral Rights of Authors in the Age of Digital

Information, 52 J. Am. Soc’y for Info. Sci. & Tech.

109, 112 (2001) (explaining how the WIPO Internet

Treaties’ rights management information provisions

fit within the treaties and also are useful in

protecting moral rights).

Digital Millennium Copyright Act (DMCA),

Public Law 105–304, 103 122 Stat. 2860, 2863–76

(1998) (codified as amended at 17 U.S.C. 1201–

1205). The WIPO Internet Treaties were submitted

to Congress for advice and consent the previous

year, and the Senate voted to approve the Treaties

shortly before passage of the DMCA. See S. Treaty

Doc. No. 105-17 (1997); 105 Cong. Rec. S12,972–73

(daily ed. Oct. 21, 1998).

which guarantees to authors of works of

‘‘visual arts’’ the right to claim or

disclaim authorship in a work and

limited rights to prevent distortion,

mutilation, or modification of a work.

In contrast to how moral rights were

often adopted elsewhere, with VARA,

Congress identified specific instances in

which the limited rights could be

waived.

As part of the legislation,

Congress also directed the Copyright

Office to conduct studies on the VARA

waiver provision and also on resale

royalties.

In its 1996 report on the waiver

provision, the Office concluded it could

not make an accurate assessment of the

impact of VARA’s waiver provisions

because artists and art consumers were

generally unaware of moral rights and

recommended that in order for artists to

take advantage of their legal rights

under VARA, further education about

moral rights in the United States would

be necessary.

The Office also made

observations about the implementation

of moral rights obligations in other

countries, finding that, of the laws

reviewed by the Office, only the moral

rights laws of the United Kingdom and

Canada contained express waiver

provisions.

The Supreme Court’s 2003 Decision in

Dastar

In 2003, some scholars began to

question the strength of the U.S.

patchwork of protection as a result of

the U.S. Supreme Court’s ruling in

Dastar Corp. v. Twentieth Century Fox

Film Corp. (‘‘Dastar’’), which foreclosed

some attribution claims under section

43(a) of the Lanham Act.

The Court

unanimously rejected an interpretation

of section 43(a) that would ‘‘require

attribution of uncopyrighted

materials.’’

Citing VARA, the Court

said that when Congress has wanted to

provide an attribution right under

much more specificity than the Lanham

Act’s ambiguous use of ‘origin.’ ’’

The

Court found that ‘‘origin of goods’’ is

most naturally understood as referring

to the source of a physical product, not

the person or entity that originated the

underlying creative content.

In a well-

known sentence, Justice Scalia, writing

for the Court, stated that permitting a

section 43(a) claim for such

misattribution ‘‘would create a species

of mutant copyright law that limits the

public’s ‘federal right to copy and to

use’ expired copyrights.’’

Some lower courts have read Dastar

as a broad prohibition on applying

federal trademark and unfair

competition laws in the realm of

copyrighted work remains under the

term of protection or has fallen into the

public domain.

In contrast, some

scholars have argued that the Court did

not write federal trademark and unfair

competition law out of the patchwork

entirely.

Rights Management Information and

Moral Rights for Performers

Since implementation of the Berne

Convention, the United States has

joined two additional international

treaties that address moral rights—the

WIPO Copyright Treaty (WCT) and the

WIPO Performances and Phonograms

Treaty (WPPT). The WCT incorporates

the substantive provisions of Berne,

including those of article 6bis.

Article

5 of the WPPT expands the obligations

of Contracting Parties to recognize the

moral rights of attribution and integrity

for performers with respect to their live

performances and performances fixed in

phonograms.

Furthermore, both the

WCT and the WPPT include new

obligations concerning rights

management information (RMI).

These

provisions protect new means of

identifying and protecting works while

also helping protect the rights of

attribution and integrity.

The United States implemented its

WCT and WPPT obligations via

enactment of the 1998 Digital

Millennium Copyright Act (‘‘DMCA’’),

and signed as a contracting party to both

treaties in 1999, three years before the

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See WCT Notification No. 10: WIPO Copyright

Treaty: Ratification by the United States of

America, WIPO (Sept. 14, 1999), available at http://

www.wipo.int/treaties/en/notifications/wct/treaty_

wct_10.html; WPPT Notification No. 8: WIPO

Performances and Phonograms Treaty: Ratification

by the United States of America, WIPO (Sept. 14,

1999), available at http://www.wipo.int/treaties/en/

notifications/wppt/treaty_wppt_8.html.

The other sections of chapter 12 include

sections 1203 and 1204, which set forth available

civil remedies and criminal sanctions for violation

of sections 1201 and 1202, and section 1205, which

explicitly carves out federal and state laws affecting

Internet privacy. 17 U.S.C. §§ 1203–1205.

H.R. Rep. No. 105-551, pt. 1, at 9 (1998).

The term ‘‘copyright management information’’

in the Copyright Act is seen as a synonymous term

for ‘‘rights management information’’ as used in the

WCT and WPPT. See S. Rep. No. 105–190, at 11

n.18 (1998) (‘‘Rights management information is

more commonly referred to in the U.S. as copyright

management information (CMI).’’).

Section 1202 makes it an offense to

‘‘intentionally remove or alter any copyright

management information,’’ which includes the

name of a work’s author. 17 U.S.C. §§ 1202(b)(1),

(c)(2). See Jane C. Ginsburg, Have Moral Rights

Come of (Digital) Age in the United States?, 19

Cardozo Arts & Ent. L.J. 9, 11 (2001) (‘‘The DMCA

may contain the seeds of a more general attribution

right. . . .’’); see also Greg Lastowka, Digital

Attribution: Copyright and the Right to Credit, 87

B.U. L. Rev. 41, 69–73 (2007).

See 17 U.S.C. 1202(a)–(b); see also Stevens v.

Corelogic, No. 14-cv-1158, 2016 WL 4371549, at *5,

6 (S.D. Cal. July 1, 2016) (‘‘Under § 1202(b)(1),

Plaintiffs must present evidence that [defendant]

intentionally removed or altered CMI. . . . ’’ and

‘‘[a]lthough Plaintiffs need not show actual

infringement, the fact that there was none is

relevant to Plaintiffs’ burden to show that

[defendant] had a reasonable ground to believe it

was likely to happen.’’).

Compare Murphy v. Millennium Radio Grp.

LLC, 650 F.3d 295, 305 (3d Cir. 2011) (rejecting

argument that the definition of CMI under section

1202 is ‘‘restricted to the context of ‘automated

and Williams v. Cavalli S.p.A., No. CV 14–06659–

AB (JEMx), 2015 WL 1247065, at *3 (C.D. Cal. Feb.

12, 2015) (holding that ‘‘[t]he plain meaning of

§ 1202 indicates that CMI can include non-digital

Sports Interactive Media, LLC, 999 F. Supp. 2d

1098, 1101–02 (N.D. Ill. 2014) (noting that the

majority of courts have rejected a requirement for

CMI to be digital under section 1202), and Fox v.

Hildebrand, No. CV 09–2085 DSF (VBKx), 2009 WL

1977996, at *3 (C.D. Cal. July 1, 2009) (‘‘The plain

language of the statute indicates that the DMCA

provision at issue is not limited to copyright notices

that are digitally placed on a work.’’), with Textile

Secrets Int’l Inc. v. Ya-Ya Brand Inc., 524 F. Supp.

2d 1184, 1201 (C.D. Cal. 2007) (‘‘[T]he Court []

cannot find that the provision was intended to

apply to circumstances that have no relation to the

Internet, electronic commerce, automated copyright

protections or management systems, public

registers, or other technological measures or

processes as contemplated in the DMCA as a

whole.’’), and IQ Grp., Ltd. v. Wiesner Publ’g, LLC,

409 F. Supp. 2d 587, 597 (D.N.J. 2006) (holding that

‘‘[t]o come within § 1202, the information removed

must function as a component of an automated

majority position seems to accord with statements

from the legislative history. See, e.g., S. Rep. No.

105–190, at 16 (1998) (‘‘CMI need not be in digital

form, but CMI in digital form is expressly

included.’’).

See Waiver of Moral Rights at 53.

See Waiver of Moral Rights at 47–51, 53.

See Performances (Moral Rights, etc.)

Regulations 2006, SI 2006/18, arts. 5–6 (UK).

See Beijing Treaty on Audiovisual

Performances, June 24, 2012, 51 I.L.M. 1214 (2012)

(‘‘Beijing Treaty’’).

See Beijing Treaty art. 5 (‘‘Moral Rights’’), art.

16 (‘‘Obligations Concerning Rights Management

Information’’). Negotiations to conclude this treaty

took more than a decade, with a major point of

contention involving the provision on contractual

transfers. See Beijing Treaty art. 12; see also Press

Release, WIPO, WIPO Diplomatic Conference

Opens in Beijing to Conclude Treaty on Performers’

Rights in Audiovisual Productions, WIPO Press

Release PR/2012/713 (June 20, 2012), available at

http://www.wipo.int/pressroom/en/articles/2012/

article_0012.html (noting that as far back as the year

2000 negotiators could not agree on the issue

involving transfer of rights, and a breakthrough

compromise occurred in June 2011). This treaty has

not yet entered into force, and the United States has

not yet ratified it. The Obama Administration has

submitted a legislative package to Congress in

support of U.S. implementation of the Beijing

Treaty. See Letter from Michelle K. Lee, Under

Sec’y Commerce for Intellectual Prop. & Dir., U.S.

Patent & Trademark Office, to Joseph R. Biden,

President of the Senate (Feb. 26, 2016), available at

http://www.uspto.gov/sites/default/files/

documents/Beijing-treaty-package.pdf (treaty

implementation package for the Beijing Treaty on

Audiovisual Performances which includes a

transmittal letter, Beijing Treaty Implementation

Act of 2016, and Statement of Purpose and Need

and Sectional Analysis).

Founded in 2001, Creative Commons offers

various open source content licenses. Creative

Commons Project, Cover Pages (Aug. 22, 2008),

http://xml.coverpages.org/creativeCommons.html.

These types of licenses were held to be governed

by copyright law rather than contract law in

Continued

treaties entered into force.

Congress

added a new chapter 12 to title 17,

which contained two new provisions to

implement the treaties—section 1201,

which addresses technological

protection measures, and section 1202,

which protects rights management

information (called copyright

management information in U.S.

law)

—but did not make any

additional changes, finding that ‘‘[t]he

treaties do not require any change in the

substance of copyright rights or

exceptions in U.S. law.’’

Section 1202 includes prohibitions on

both providing false copyright

management information (‘‘CMI’’), and

removing or altering CMI.

In addition

to facilitating the administration of an

author’s or right holder’s economic

rights, the CMI protections afforded by

section 1202 may have implications for

authors’ protection and enforcement of

their moral rights.

However, two

aspects of section 1202 may limit its

usefulness as a mechanism to protect an

author’s moral rights. First, to be liable

under section 1202, a person who

removes copyright management

information must know both that they

have caused its removal and that such

removal is likely to cause others to

infringe the work.

Second, while most

courts recognize section 1202 as

protecting against any removal of

attribution from works, a minority of

courts have limited section 1202 to

protect only against removal of

attribution that is digital or part of an

‘‘automated copyright protection or

management system.’’

Recent International Developments

There have also been changes to the

landscape of moral rights protection

internationally since the U.S. acceded to

the Berne Convention in 1989. The

Waiver of Moral Rights in Visual

Artworks that, while statutory

recognition of the commonly recognized

moral rights—i.e., attribution and

integrity—is the norm internationally,

the strength of the moral rights laws

varied among Berne members, even

among those with the same basic legal

systems.

For example, at the time of

the Report the United Kingdom required

an author or her heirs, in some cases, to

assert the right of paternity and was

generally considered to have adopted

one of the more restrictive approaches

to implementing moral rights.

However, ten years later, in 2006, the

United Kingdom amended its moral

rights provision by extending to

qualifying performances the right to

attribution and the right to object to

derogatory treatment of a work.

The most recent international

development on CMI and moral rights

occurred four years ago at a Diplomatic

Conference in Beijing where WIPO and

its member states concluded a new

treaty on audiovisual performances.

Similar to the approach of the WPPT,

the Beijing Treaty on Audiovisual

Performances also contains provisions

on CMI and moral rights for audiovisual

performers.

Availability and Use of Licenses,

Contracts, and State Laws

Another part of the patchwork upon

which moral rights protection in the

United States relies is state contract law,

which allows authors to negotiate for

protection of their rights of attribution

and integrity through private ordering.

Since the United States’ accession to the

Berne Convention, a major change to

this area has been the emergence of

Creative Commons and its various

licenses that have simplified licensing

for all kinds of authors and users, large

and small. The CC license suites have

served to facilitate private ordering,

including for individual authors that

would not previously have been able to

afford the services of a lawyer to create

licenses to govern use of their works.

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Jacobsen v. Katzer, 535 F.3d 1373, 1380–83 (Fed.

Cir. 2008).

Creative Commons, https://

creativecommons.org/ (last visited Jan. 5, 2017)

(‘‘1.1 billion works and counting.’’).

For example, the PLUS Coalition has created an

image rights language to allow for global

communication of image rights information, and it

is currently developing an image registry that will

function as a hub connecting registries worldwide

and providing both literal and image-based

searches. PLUS Coalition, Comments Submitted in

Notice of Inquiry (Visual Works Study) at 1 (July

22, 2015) (noting that the Coalition’s unique image

rights language is meant to address the ‘‘challenges

[arising] from a present inability to ensure that any

person or machine encountering a visual work has

ready access to rights information sufficient to

allow the work to be identified, and sufficient to

facilitate an informed decision regarding the

display, reproduction and distribution of the

work’’).

Indeed, CMI is of particular interest to visual

artists who embed copyright information in their

works only to find it unlawfully stripped from

digital copies. This makes it difficult for potential

users to identify and contact the copyright owner

to obtain a license to use a work found online. See

Columbia University Libraries, Comments

Submitted in Response to U.S. Office’s Apr. 24,

2015 Notice of Inquiry (Visual Works Study) at 2

(July 23, 2015) (‘‘Rights metadata that includes

author attribution and source information would [ ]

facilitate subsequent re-uses of visual works while

at the same time support the interests of legitimate

The Office co-hosted this symposium with the

George Mason University School of Law and its

Center for the Protection of Intellectual Property.

Videos of the proceedings can be accessed on the

U.S. Copyright Office Web site event page at http://

www.copyright.gov/events/moralrights/. The official

transcript has been published by the George Mason

Journal of International Commercial Law. See

Symposium, Authors, Attribution, and Integrity:

Examining Moral Rights in the United States, 8 Geo.

Mason J. Int’l Com. L. 1 (2016), available at http://

www.georgemasonjicl.org/wp-content/uploads/

2016/08/Summer-Issue-2016.pdf.

See Session 4: The Importance of Moral Rights

to Authors, 8 Geo. Mason J. Int’l Com. L. 87, 90

(2016).

See Session 1: Overview of Moral Rights, 8 Geo.

Mason J. Int’l Com. L. 7 (2016).

See, e.g., Jane C. Ginsburg, Keynote Address,

The Most Moral of Rights: The Right to be

Recognized as the Author of One’s Work, 8 Geo.

Mason J. Int’l Com. L. 44, 48, 60–72 (2016); Session

4: The Importance of Moral Rights to Authors, 8

Geo. Mason J. Int’l Com. L. 87, 91–93 (2016)

(comments of Yoko Miyashita, Getty Images).

See Jane C. Ginsburg, Keynote Address: The

Most Moral of Rights: The Right to be Recognized

as the Author of One’s Work, 8 Geo. Mason J. Int’l

Com. L. 44, 72–81 (2016).

See, e.g., Session 2: The U.S. Perspective, 8

Geo. Mason J. Int’l Com. L. 26, 30–34 (2016)

(remarks of Duncan Crabtree-Ireland, SAG–AFTRA,

& Peter K. Yu, Tex. A&M Univ. Sch. of Law);

Session 6: New Ways to Disseminate Content and

the Impact on Moral Rights, 8 Geo. Mason J. Int’l

Com. L. 125, 139 (2016) (remarks of Stanley Pierre-

Louis, Entm’t Software Ass’n).

See Session 5: The Intersection of Moral Rights

and Other Laws, 8 Geo. Mason J. Int’l Com. L. 106,

119–20 (2016) (remarks of Paul Alan Levy, Pub.

Citizen).

See Session 2: The U.S. Perspective, 8 Geo.

Mason J. Int’l Com. L. 26, 27–29 (2016) (remarks of

Allan Adler, Ass’n of Am. Publishers (‘‘AAP’’))

(noting that the testimony of AAP at the 2014

hearing ‘‘raise[d] the threshold policy question of

‘whether to superimpose vague, subjective, and

wholly unpredictable new rights upon a

longstanding balanced and successful copyright

system.’’’).

See Session 2: The U.S. Perspective, 8 Geo.

Mason J. Int’l Com. L. 26, 30 (2016) (remarks of

Duncan Crabtree-Ireland, SAG–AFTRA).

See, e.g., Jane C. Ginsburg, Keynote Address,

The Most Moral of Rights: The Right to be

Recognized as the Author of One’s Work, 8 Geo.

Mason J. Int’l Com. L. 44, 53 (2016); Session 5: The

Intersection of Moral Rights and Other Laws, 8 Geo.

Mason J. Int’l Com. L. 106, 107–10, 113–14 (2016)

(remarks of Sonya G. Bonneau, Geo. Univ. Law Ctr.;

Eugene Mopsik, Am. Photographic Artists; & Nancy

E. Wolff, Cowan, DeBaets, Abrahams & Sheppard

LLP).

See Session 5: The Intersection of Moral Rights

and Other Laws, 8 Geo. Mason J. Int’l Com. L. 106,

110 (2016) (remarks of Eugene Mopsik, Am.

Photographic Artists).

See Session 4: The Importance of Moral Rights

to Authors, 8 Geo. Mason J. Int’l Com. L. 87, 92

(2016) (remarks of Yoko Miyashita, Getty Images).

Session 7: Where Do We Go From Here?, 8 Geo.

Mason J. Int’l Com. L. 142, 147 (2016) (remarks of

Mira Sundara Rajan, Univ. of Glasgow Sch. of Law).

See Session 1: Overview of Moral Rights, 8 Geo.

Mason J. Int’l Com. L. 7, 15 (2016) (remarks of

Daniel Gervais, Vand. Law Sch.).

Currently there are over one billion

works licensed under Creative

Commons licenses, most of which

require attribution of the author.

Changes in Technology to Deliver

Content and Identify Content

The evolution of technology in the

past few decades has also impacted the

availability of moral rights protections

for modern authors. Technology can

facilitate improved identification and

licensing of works with persistent

identifiers,

while, at the same time, it

can also make it easier to remove

attribution elements and distribute the

unattributed works widely.

II. Congressional Copyright Review and

This Study

As part of its effort to begin a dialogue

about moral rights protections in the

United States, the Copyright Office

organized a symposium entitled

‘‘Authors, Attribution, and Integrity:

Examining Moral Rights in the United

States,’’ which was held on April 18,

2016.

The symposium served as a

launching point for the issuance of this

Notice of Inquiry.

Seven sessions covered the historical

development of moral rights, the value

authors place on moral rights, the

various ways current law provides for

these rights, and new considerations for

the digital age. Participants, including

professional authors, artists, musicians,

and performers, discussed the

importance that copyright law generally,

and attribution specifically, plays in

supporting their creative process and

their livelihood.

Leading academics

provided an overview of the scope of

moral rights and how countries,

including the United States, approach

these concepts.

Many participants identified the right

of attribution as particularly important

to authors, both from a personal and

from an economic perspective. For

example, participants cited the role of

purposes of attribution, and discussed

the perceived strengths and limitations

of section 1202.

Keynote speaker

Professor Jane Ginsburg posited ways to

strengthen the right of attribution.

Others discussed the possibilities of

using non-copyright laws post-Dastar,

as well as expressing concerns about

how potential moral rights-like causes

of action might interact with First

Amendment protections.

Some participants asserted that the

current patchwork of laws, particularly

the availability of contract law, the work

for hire doctrine, and collective

bargaining agreements (available in

some industry sectors), provides

sufficient protection for moral rights

concerns.

In contrast, several voices

criticized the limited scope of existing

law, ranging from upset that a right of

publicity is not a federal right

disappointment with VARA’s under-

inclusiveness and strict standards.

Discussion also addressed the role of

technology, both in creation and in

dissemination of authorized and

unauthorized works. For example, a

photographer noted the importance of

attribution that stays with images,

and

a photo company described the

technology they use to persistently

connect authorship information to

images.

Looking at what lessons might be

gleaned from the experiences of other

countries, one panelist commented that

there is ‘‘tremendous diversity in how

different countries have implemented

moral rights,’’

and another confirmed

that moral rights litigation constitutes

only a small percentage of the copyright

cases on those countries’ litigation

documents.

III. Subjects of Inquiry

The Copyright Office seeks public

comments addressing how existing law,

including provisions found in title 17 of

the U.S. Code as well as other federal

and state laws, affords authors with

effective protection of their rights,

equivalent to those of moral rights of

attribution and integrity.

The Office invites written comments

in particular on the subjects below. A

party choosing to respond to this Notice

of Inquiry need not address every

subject, but the Office requests that

responding parties clearly identify and

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separately address each numbered

subject for which a response is

submitted.

General Questions Regarding

Availability of Moral Rights in the

United States

1. Please comment on the means by

which the United States protects the

moral rights of authors, specifically the

rights of integrity and attribution.

Should additional moral rights

protection be considered? If so, what

specific changes should be considered

by Congress?

Title 17

2. How effective has section 106A

(VARA) been in promoting and

protecting the moral rights of authors of

visual works? What, if any, legislative

solutions to improve VARA might be

advisable?

3. How have section 1202’s provisions

on copyright management information

been used to support authors’ moral

rights? Should Congress consider

updates to section 1202 to strengthen

moral rights protections? If so, in what

ways?

4. Would stronger protections for

either the right of attribution or the right

of integrity implicate the First

Amendment? If so, how should they be

reconciled?

5. If a more explicit provision on

moral rights were to be added to the

limitations should be considered? What

limitations on remedies should be

considered?

Other Federal and State Laws

6. How has the Dastar decision

affected moral rights protections in the

United States? Should Congress

consider legislation to address the

impact of the Dastar decision on moral

rights protection? If so, how?

7. What impact has contract law and

collective bargaining had on an author’s

ability to enforce his or her moral

rights? How does the issue of waiver of

moral rights affect transactions and

other commercial, as well as non-

commercial, dealings?

Insights From Other Countries’

Implementation of Moral Rights

Obligations

8. How have foreign countries

protected the moral rights of authors,

including the rights of attribution and

integrity? How well would such an

approach to protecting moral rights

work in the U.S. context?

Technological Developments

9. How does, or could, technology be

used to address, facilitate, or resolve

challenges and problems faced by

authors who want to protect the

attribution and integrity of their works?

Other Issues

10. Are there any voluntary initiatives

that could be developed and taken by

interested parties in the private sector to

improve authors’ means to secure and

enforce their rights of attribution and

integrity? If so, how could the

government facilitate these initiatives?

11. Please identify any pertinent

issues not referenced above that the

conducting its study

Dated: January 13, 2017.

Karyn Temple Claggett,

Acting Register of Copyrights and Director

of the U.S. Copyright Office.

[FR Doc. 2017–01294 Filed 1–19–17; 8:45 am]

BILLING CODE 1410–30–P

LIBRARY OF CONGRESS

[Docket Nos. 17–0008–CRB–AU and 17–

0009–CRB–AU]

Notice of Intent To Audit

AGENCY

: Copyright Royalty Board,

Library of Congress.

ACTION

: Public notice.

SUMMARY

: The Copyright Royalty Judges

announce receipt of two notices of

intent to audit the 2013, 2014, and 2015

statements of account submitted by

broadcasters Cox Radio (Docket No. 17–

CRB–0009–AU) and Hubbard

Broadcasting (Docket No. 17–CRB–

0008–AU) concerning royalty payments

each made pursuant to two statutory

licenses.

FOR FURTHER INFORMATION CONTACT

Anita Brown, Program Specialist, by

telephone at (202) 707–7658 or by email

at [email protected].

SUMMARY INFORMATION

: The Copyright

Act, title 17 of the United States Code,

grants to copyright owners of sound

recordings the exclusive right to

publicly perform sound recordings by

means of certain digital audio

transmissions, subject to limitations.

Specifically, the right is limited by the

statutory license in section 114 which

allows nonexempt noninteractive digital

subscription services, eligible

nonsubscription services, and

preexisting satellite digital audio radio

services to perform publicly sound

recordings by means of digital audio

transmissions. 17 U.S.C. 114(f). In

addition, a statutory license in section

112 allows a service to make necessary

ephemeral reproductions to facilitate

the digital transmission of the sound

recording. 17 U.S.C. 112(e).

Licensees may operate under these

licenses provided they pay the royalty

fees and comply with the terms set by

the Copyright Royalty Judges. The rates

and terms for the section 112 and 114

licenses are set forth in 37 CFR parts

380 and 382–84.

As part of the terms set for these

licenses, the Judges designated

SoundExchange, Inc., as the Collective,

i.e., the organization charged with

collecting the royalty payments and

statements of account submitted by

eligible nonsubscription services such

as broadcasters and with distributing

the royalties to copyright owners and

performers entitled to receive them. See

37 CFR 380.33(b)(1).

As the designated Collective,

SoundExchange may, once during a

calendar year, conduct an audit of a

licensee for any or all of the prior three

years in order to verify royalty

payments. SoundExchange must first

file with the Judges a notice of intent to

audit a licensee and deliver the notice

to the licensee. See 37 CFR 380.35.

On December 22, 2016,

SoundExchange filed with the Judges

notices of intent to audit licensee

broadcasters Cox Radio, Inc., and

Hubbard Broadcasting, Inc., for 2013–

15. The Judges must publish notice in

the Federal Register within 30 days of

receipt of a notice announcing the

Collective’s intent to conduct an audit.

See 37 CFR 380.35(c). Today’s notice

fulfills this requirement with respect to

SoundExchange’s December 22, 2016

notices of intent to audit.

Dated: January 13, 2017.

Suzanne M. Barnett,

Chief Copyright Royalty Judge.

[FR Doc. 2017–01319 Filed 1–19–17; 8:45 am]

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LIBRARY OF CONGRESS

[Docket No. 17–0004–CRB–AU, 17–0007–

CRB–AU, and 17–0010–CRB–AU]

Notice of Intent To Audit

AGENCY

: Copyright Royalty Board,

Library of Congress.

ACTION

: Public notice.

SUMMARY

: The Copyright Royalty Judges

announce receipt of three notices of

intent to audit the 2013, 2014, and 2015

statements of account submitted by

commercial webcasters Radionomy

(Docket No. 17–CRB–0004–AU), IMVU,

Inc. (Docket No. 17–CRB–0007–AU),

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authors, attribution, and integrity: examining moral rights in the united states

u.s. copyright office

appendix c PARTiEs whO submiTTEd cOmmEnTs

in REsPOnsE TO ThE jAnuARy 23, 2017

nOTicE Of inquiRy

U.S. Copyright Office Authors, Attribution, and Integrity

Appendix C

Parties Who Submitted Comments

in Response to the January 23, 2017 Notice of Inquiry

Initial Commenters

1. American Association of Law Libraries (“AALL”)

2. American Society of Journalists & Authors (“ASJA”)

3. Art Law Committee of the New York City Bar (“NY Bar Association”)

4. Artists Rights Society (“ARS”)

5. Association of American Publishers (“AAP”)

6. Authors Alliance

7. Authors Guild, Inc. (“Authors Guild”)

8. B., Courtney

9. Buccafusco, Christopher and Sprigman, Christopher (“Buccafusco-Sprigman”)

10. Claiborne, Omer

11. Clarke, Glenn

12. Coalition of Visual Artists (“CVA”)

13. Computer & Communications Industry Association (“CCIA”)

14. Creators’ Rights Alliance (“CRA”)

15. Directors Guild of America, Inc. and Writers Guild of America, West

(“DGA/WAGAW”)

16. Electronic Frontier Foundation (“EFF”)

17. Folkens, Pieter

18. Foss, Lance 1

19. Foss, Lance 2

U.S. Copyright Office Authors, Attribution, and Integrity

20. Gonzalez, Israel

21. Gordon, Wendy J

22. International Federation of Journalists (“IFJ”)

23. International Trademark Association (“INTA”)

24. Keller, Jenny

25. Kelley, Chapman

26. Kernochan Center for Law, Media and the Arts, Columbia Law School

(“Kernochan Center”)

27. Kojreau, AC

28. Kwall, Roberta

29. Lee, Becki

30. Library Copyright Alliance (“LCA”)

31. Liimatainen-Peterson, Donna

32. McCutcheon, Jani

33. Motion Picture Association of America, Inc. (“MPAA”)

34. Music Creators North America (“Music Creators”)

35. National Writers Union and Science Fiction and Fantasy Writers of America

(“NWU-SFWA”)

36. Nimpagaritse, Awen

37. Odenkirk, Sarah Conley

38. Organization for Transformative Works (“OTW”)

39. Pilch, Janice

40. Ponte, Lucille M.

41. Public Knowledge (“PK”)

U.S. Copyright Office Authors, Attribution, and Integrity

42. Screen Actors Guild-American Federation of Television and Radio Artists

(“SAG-AFTRA”)

43. Schneider, Maria

44. Society of Composers & Lyricists (“SCL”)

45. Van Norman, John

46. Weiss, Maximilian

Reply Commenters

1. American Association of Independent Music (“A2IM”)

2. Authors Guild, Inc. (“Authors Guild”)

3. Broadcast Music, Inc. (“BMI”)

4. Center for Democracy & Technology (“CDT”)

5. Creators’ Rights Alliance (“CRA”)

6. Future of Music Coalition (“FMC”)

7. Kernochan Center for Law, Media and the Arts, Columbia Law School

(“Kernochan Center”)

8. Kubota, Zandra

9. Motion Picture Association of America, Inc. (“MPAA”)

10. National Music Publishers’ Association, Inc. (“NMPA”)

11. National Writers Union (“NWU”)

12. Organization for Transformative Works (“OTW”)

13. Recording Academy

14. Recording Industry Association of America, Inc. (“RIAA”)

15. Sundara Rajan, Mira T.

16. University of Michigan Library

authors, attribution, and integrity: examining moral rights in the united states

u.s. copyright office

appendix d RighT Of PubLiciTy chART

U.S. Copyright Office Authors, Attribution, and Integrity

Legend: ü Yes ¢ Unclear/Mixed

State Right of Publicity Statutes

State

Statute

Year

Covers

Post-Mortem

(Years)

Registration System

Famous / Commercial

Value Required

Common Law Rights

Recognized

Name

Image

Signature

Voice

Likeness

Other

Alabama

ALA. CODE

§ 6-5-770 et seq.

2015

(55)

Unclear

Alaska

N/A

Right of Privacy ―

Misappropriation

Arizona

ARIZ. REV. STAT. §

12-761

2007

Right of Publicity

Right of Privacy ―

Misappropriation

Arkansas

ARK. CODE

§ 4-75-1101 et

seq.

2016

(50)

Unclear

California

CAL. CIV. CODE §

3344

1971

Right of Publicity

Right of Privacy ―

Misappropriation

California

CAL. CIV. CODE §

3344.1

1984

(70)

See above

Colorado

N/A

Right of Privacy ―

Misappropriation

Connecticut

N/A

Right of Privacy ―

Misappropriation

Delaware

N/A

Right of Privacy ―

Misappropriation

District of

Columbia

N/A

Right of Privacy ―

Misappropriation

Florida

FLA. STAT. § 540.08

1967

(40)

Right of Privacy ―

Misappropriation

Georgia

N/A

Right of Publicity

Right of Privacy ―

Misappropriation

U.S. Copyright Office Authors, Attribution, and Integrity

Legend: ü Yes ¢ Unclear/Mixed

State

Statute

Year

Covers

Post-Mortem

(Years)

Registration System

Famous / Commercial

Value Required

Common Law Rights

Recognized

Name

Image

Signature

Voice

Likeness

Other

Hawaii

HAW. REV. STAT.

§ 482P-1 et seq.

2009

(70)

Right of Privacy —

Misappropriation

Idaho

N/A

Right of Privacy —

Misappropriation

Illinois

765 ILL. COMP. STAT.

§ 1075/1 et seq.

1999

(50)

N/A

Indiana

IND. CODE

§ 32-36-1-1 et seq.

2002

(100)

Right of Privacy —

Misappropriation

Iowa

N/A

Right of Privacy —

Misappropriation

Kansas

N/A

Right of Privacy —

Misappropriation

Kentucky

KY. REV. STAT. §

391.170

1984

(50)

Unclear

Louisiana

LA. REV. STAT. §

14:102.21

2006

Right of Privacy ―

Misappropriation

Maine

N/A

Right of Privacy ―

Misappropriation

Maryland

N/A

Right of Privacy ―

Misappropriation

Massachusetts

MASS. GEN. LAWS

ch. 214, § 3A

1973

Unclear

Michigan

N/A

Right of Publicity

Right of Privacy ―

Misappropriation

Minnesota

N/A

Right of Publicity

Right of Privacy ―

Misappropriation

Mississippi

N/A

Right of Privacy ―

Misappropriation

U.S. Copyright Office Authors, Attribution, and Integrity

Legend: ü Yes ¢ Unclear/Mixed

State

Statute

Year

Covers

Post-Mortem

(Years)

Registration System

Famous / Commercial

Value Required

Common Law Rights

Recognized

Name

Image

Signature

Voice

Likeness

Other

Missouri

N/A

Right of Publicity

Right of Privacy ―

Misappropriation

Montana

N/A

Right of Privacy ―

Misappropriation

Nebraska

NEB. REV. STAT.

§ 20-201 et seq.

1979

N/A

Nevada

NEV. REV. STAT.

§ 597.770 et seq.

1989

(50)

Right of Privacy ―

Misappropriation

New

Hampshire

N/A

Right of Privacy ―

Misappropriation

New Jersey

N/A

Right of Privacy ―

Misappropriation

New Mexico

N/A

Right of Publicity

Right of Privacy —

Misappropriation

New York

N.Y. CIV. RIGHTS LAW

§ 51

1909

N/A

North Carolina

N/A

Right of Privacy —

Misappropriation

North Dakota

N/A

Unclear

Ohio

OHIO REV. CODE

§ 2741.01 et seq.

1999

(60)

Right of Publicity

Right of Privacy —

Misappropriation

Oklahoma

OKLA. STAT.

tit. 12 § 1448

1985

(100)

Unclear

Oklahoma

OKLA. STAT

tit. 12 § 1449

1985

See above

Oregon

N/A

Right of Publicity

Right of Privacy —

Misappropriation

U.S. Copyright Office Authors, Attribution, and Integrity

Legend: ü Yes ¢ Unclear/Mixed

State

Statute

Year

Covers

Post-Mortem

(Years)

Registration System

Famous / Commercial

Value Required

Common Law Rights

Recognized

Name

Image

Signature

Voice

Likeness

Other

Pennsylvania

42 PA. CONS. STAT. §

8316

2002

(30)

Unclear

Rhode Island

9 R.I. GEN. LAWS §

9-1-28

1972

N/A

Rhode Island

9 R.I. GEN. LAWS

§ 9-1-28.1

1980

N/A

South Carolina

N/A

Right of Publicity

Right of Privacy —

Misappropriation

South Dakota

S.D. CODIFIED LAWS

§ 21-64-1 et seq.

2015

(70)

N/A

Tennessee

TENN. CODE

§ 47-25-1101 et

seq.

1984

Right of Publicity

Right of Privacy ―

Misappropriation

Texas

TEX. PROP. CODE

§ 26.001 et seq.

1987

(50)

Right of Publicity

Right of Privacy ―

Misappropriation

Utah

UTAH CODE

§ 45-3-1 et seq.

1981

Right of Privacy ―

Misappropriation

Vermont

N/A

Right of Privacy ―

Misappropriation

Virginia

VA. CODE § 8.01-40

1950

(20)

N/A

Washington

WASH. REV. CODE

§ 63.60.010 et

seq.

1998

(10 /

75)

Right of Publicity

Right of Privacy ―

Misappropriation

West Virginia

N/A

Right of Publicity

Right of Privacy —

Misappropriation

U.S. Copyright Office Authors, Attribution, and Integrity

Legend: ü Yes ¢ Unclear/Mixed

State

Statute

Year

Covers

Post-Mortem

(Years)

Registration System

Famous / Commercial

Value Required

Common Law Rights

Recognized

Name

Image

Signature

Voice

Likeness

Other

Wisconsin

WIS. STAT. §

995.50

1977

Right of Publicity

Right of Privacy —

Misappropriation

Wyoming

N/A

Unclear

U.S. Copyright Office Authors, Attribution, and Integrity

Endnotes

"Much"of"the"information"herein"is"adapted"from"Prof."Jennifer"E."Rothman’s"work.""See#Jennifer"E."Rothman,"Rothman’s#

Roadmap#to#the#Right#of#Publicity,"https://www.rightofpublicityroadmap.com"(last"visited"Mar."4,"2019).""

"Includes"such"things"as"gestures,"mannerisms,"distinctiv e"appearance,"etc.""

"While"nothing"in"the"statute"requires"the"plaintiff"to"be"famous"or"to"have"commercially"exploited"their"name"or"image,"case"

law"from"before"adoption"of"th e"statute"required"a"demonstration"of"a"“unique"quality"o r"value"in"the"[plaintiff’s]"likeness[]"."."."

that"would"result"in"commercial"profit"to"[the"defendant].”""Sc hifano#v.#Greene#Ct y.#Greyhound#Park,#Inc.,"624"So."2d"178,"181"

(Ala."1993)."

"Alabama"recognized"a"right"of"privacy"and"the"tort"of "misappropriation"prior"to"passage"of"the"statutory"right"of"publicity.""

There"has"not"yet"been"any"case"law"on"whether"these"continue"to"be"available"in"light"of"the"statutory"regime.""See# Jennifer"E."

Rothman,"Rothman’s#Roadmap#to#the#Right#of#Publicity,"https://www.rightofpublicityroadmap.com/law/alabama"(last"visited"

Mar."4,"2019).#"

"At"least"one"federal"district"court"has"held"that"Alaska"would"likely"recognize"this"tort.""Se e#Doyle#v.#Harper#Collin s#Publishers,#

Inc.,"No."3:05-cv-0300,"2006"WL"8438639,"at"*3"(D."Alaska"May"31,"2006)"(order"on"motion"to"dismiss)."""

"Arizona’s"statutory"right"of"publicity"law"protects"only"soldiers.""

"Enforceable"down"to"grandchildren."

#See,#e.g.,#In#re#Estate#of# Reynolds,"327"P.3d"213,"216"(Ariz."Ct."App.""2014).""

"See#Reed#v.#Real#Detective#Pub.#Co.,"162"P.2d"133,"137–38"(Ariz."1945)"(adopting"Restatement"version"of"right"of"privacy)."

"Prior"to"passage"of"the"statute,"Arkansas"recognized"the"tort"of"misappropriation"under"its"right"of"privacy"doctrine.""See,#e.g.,#

Olan#Mills,#Inc.#of#Tex.#v.#Dodd,"353"S.W.2d"22,"24"(Ark."1962);"Stanley#v.#Gen.#Media"Commc’ns,#Inc.,"149"F."Supp."2d"701,"706"

(W.D."Ark."2001).""The"statute"is"silent"on"whether"or"not"such"common"law"causes"of"action"are"preempted,"and"there"is"not"

yet"any"case"law"on" the" matter.""

"See,#e.g.,#White#v.#Samsung#Elecs.#Am.,#Inc.,"971"F.2d"1395,"1397–99"(9th"Cir."1992)."

"See#KNB#Enters.#v.#Matthews,"78"Cal."App."4th"362,"366–67"(Cal."Ct."App."2000)"(noting"that"Section"3344"“complements"the"

common"law"tort"of"appropriation”)."

"Requires"that"the"personality’s"name,"voice,"signature,"photograph,"or"likeness"have"commercial"value"as"measured"at"the"

time"of "his"or"her"death,"regardless"of"exploitation"during"life."

"See,#e.g.,#Joe#Dicke rson#&#A ssocs.,#LLC#v.#Dittmar,"34"P.3d"995,"1001"(Colo."2001)."""

#See#Goodrich#v.#Waterbury#Republican-Am.,#Inc.,"448"A.2d"1317,"1328"(Conn."1982).""One"federal"court"has"indicated"that"

Connecticut" might"recognize"a"common"law"right"of"publicity,"as "well.""See#Jim#Henson#Prods.,#Inc.#v.#John#T.#Brad y#&#Assocs.,"867"

F."Supp."175,"189" (S.D.N.Y."1994)."

"See#Barbieri#v.#News-Journal#Co.,"189"A.2d"773,"774"(Del."1963)."""

"See#Vassiliades#v.#Garfinckel’s,#B rooks#Bro s.,"492"A.2d"580,"587"(D.C."1985)."""

"The"statute"expressly"states"that"it"does"not"preempt"claims"under"the"common"law"right"of"privacy.""FLA."STAT."§"540.08(7)"

(1967).""Florida"has"long"recognized"the"tort"of"misappropriation"under"the"right"of"privacy.""See,#e.g.,#Cason#v.#Baskin,"20"So."2d"

243"(Fla."1944)."

"See#Martin#Luther#King,#Jr.,#Ctr.#for#Soc.#Change,#Inc.#v.#Am.#Heritage#Prods.,#Inc.,"296"S.E.2d"697,"700–03"(Ga."1982).""

"See#Bullard#v.#MRA#Holding,#LLC,"740"S.E.2d"622,"625–26"(Ga."2013)."

"Claims"to"apply"to" all"individuals,"regardless"of"whether"or"not"they"ever"resided"o r"were"dom iciled"in"Hawaii.""See#HAW."REV."

STAT."§"482P-2"(2009)."

"Registration"of"a"license"or"assignment"interest"can"rebut"presumption"that"a"living"person"has"the"right"to"license"or"assign"

their"publicity"rights.""See#HAW."REV."STAT."§"482P-8"(2009)."

"Hawaii"provides"broader"protection"for"“person alities”"than"for"average"individuals.""A"claim"for"violation"of"a"“deceased"

personality”"must"have"demonstrated"commercial"value"at"the"time"of "death.""See#HAW."REV."STAT."§"482P-1"(2009)."

"See#Fergerstrom#v.#Hawaiian#Ocean#View#Estates,"441"P.2d"141,"143"(Haw."1968)."

"See,#e.g.,#Hoskins#v.#Howa rd,"971"P.2d"1135,"1140"(Ida ho"1998)."

"Illinois"previously"recognized"a"common"law"right"of"privacy—misappropriation.""The"statutory"language"explicitly"

preempts"a"common"law"right"of"publicity,"and"several"appellate"courts"have"held"that"such"preemption"likely"extends"to"the"

common"law"right"of"privacy—misappropriation.""See,#e.g .,"Trannel#v.#Praire#Ridge#Media,#Inc.,"987"N.E.2d"923,"928"(Ill."App."Ct."

2013);"Blair#v.#Nev.#Landing#P’ship,"859"N.E.2d"1188,"1192"(Ill."App."Ct."2006);"Maremont#v.#Susan#Fredman#Design#Grp.,#Ltd.,"

772"F."Supp.2d"967,"972"(N.D."Ill."2011).""But#see#Petty#v.#Chrysler #Corp.,"799"N.E.2d"432,"441–42"(Ill."App."Ct."2003)."

"Indian a’s"first"right"of"publicity"law"was"passed"in"1994"and"codified"at"IND."CODE"§"32-13-1-8.""In"2002,"Indiana"repealed"the"

statue"and"recodified"it"at"IND."CODE"§"32-36-1-1"et#seq.""See"2002"Ind."Acts"595,"672."

"See,#e.g.,#Felsher#v.#Univ.#of#Evansville,"755"N.E.2d"589,"593"(Ind."2001)."

"See,#e.g.,#Bremmer#v.#Journal-Tribune#Pub.#Co.,"76"N.W.2d"762,"765"(Iowa"1956).""At"least"one"federal"court"has"held"that"Iowa"

would"likely"recog nize"a"common"law"right"of"publicity.""See#Sharp-Richardson#v.#Boyds#Collection,#Ltd.,"No."C"96-0334,"1999"WL"

33656875,"at"*15"(N.D."Iowa"Sept."30,"1999)."

"See#Kunz#v.#Allen,"172"P."532"(Kan."1918)."

"The"Kentucky"statute"requires"that"the"person"whose"right"of"publicity"is"being"asserted"be"a"“public"figure.”"

U.S. Copyright Office Authors, Attribution, and Integrity

"The"Kentucky"Supreme"Court"has"implied"that"the"common"law"right"of"publicity"and"common"law"right"of"privacy—

misappropriation"may"not"be"preempted"by"the"statute.""See# Montgomery#v.#Montgomery,"60"S.W.3d"524"(Ky."2001).""One"

federal"court"has"found"that"common"law"rights"remain.""See#Thornton#v.#W.#&#S.#Fin.#Grp.#Beneflex#Plan,"797"F."Supp."2d"796,"

813-14"(W.D."Ky."2011)."

"Louisiana’s"statutory"right"of"publicity"p rotects"only"soldiers.""A"bill"to"provide"a"post-mortem"right"of"publicity"for"

commercial"use s"of"an"individual’s"name,"voice,"signature,"photograph"or"likeness"was"introduced"in"the"Louisiana"legislature"

in"2017,"but"did"not"pass"both"houses.""Se e#Allen"Toussaint"Legacy"Act,"H.B."415,"2017"Reg."Sess."(La."2017).""

"The"Louisiana"statute"is"silent"as"to"duration."

"See,#e.g.,#Tatum#v.#New#Or leans#Aviation#Bd.,"102"So."3d"144"(La."Ct."App."2012)."

"See,#e.g.,#Nelson#v.#Me.#Times,"373"A.2d"1221,"1223"(Me."1977)."

"See#Carr#v.#Watkins,"177"A.2d"841"(Md."1962) .""Several"Maryland"cases"reject"claims"for"violation"of"the"right"of"pri vacy"when"

the"pla i ntiff"cannot"demonstrate"possession"of"a"commercially"va luable"identity.""See,#e.g.,#Lawrence#v.#A.S.#Abell#Co.,"475"A.2d"

448,"453"(Md."1984)."

"A"bill"was"introduced"most"recently"in"2014"to"add"explicit"post-mortem"rights.""See#S."2022,"188th"General"Court"(Mass."

2014)."

"While"nothing"in"the"statute"requires"the"plaintiff"to"be"famous"or"to"have"commercially"exploited"their"name"or"image,"the"

Massachusetts"Supreme"Judicial"Court"has"read"such"a"requirement"into"the"statute.""See#Tropeano#v.#Atl.#Monthly,#Co.,"400"

N.E.2d,"847,"850"(Mass."1980)."

"No"court"has"ruled"on"whether"Massachusetts"recognizes"either"a"common"law"right"of"publicity"nor"a"common"law"right"of"

privacy—misappropriation"in"addition"to"the"statutory"protections."

"See#Rosa#and#Raymond#Parks#Inst.#for#Self-Dev.#v.#Target#Corp.,"812"F.3d"824,"830"(11th"Cir."2016).""

"See#Pallas#v.#Crowley-Milner#&#Co.,"54"N.W.2d"595,"596"(Mich."1952)."

"Bills"were"introduced"in"the"89th"Legisl ature"after"the"passin g" of"Princ e"in"2016,"but"did"no t"clear"either"cha mber"o f"the"

legislature.""See#Personal"Rights"in"Names"Can"Endure"(PRINCE)"Act,"SF"3609,"89th"Leg."(Minn."2016)."

"See#Ventura#v.#Titan#Sports,#Inc.,"65"F.3d"725,"730"(8th"Cir."1995)"(“We"believe"that"the"Minnesota"Supreme"Court"would"

recognize"the"tort"of"violation"of"publicity"rights.”)."

"See#Lake#v.#Wal-Mart#Stores,#Inc.,"582"N.W.2d"231,"233–35"(Minn."1998)."

"See#Candebat#v.#Flan agan,"487"So."2d"207,"209"(Miss."1986)."

"See,#e.g.,#Doe#v.#TCI#Cablevision,"110"S.W.3d"363,"368"(Mo."2003)."

"See#id."at"368."

"See#Welsh#v.#Pritchard,"241"P.2d"816,"819"(Mont."1952).""

"Note"that"Nebraska’s"statute"is"styled"as"a"statutory"right"of"privacy,"which"includ es"a"cause"of"action"for"exploitation"of"a"

person"for"advertising"or"commercial"purpos es."

"Only"the"right"of"publicity"( e xploitation"of"a"person’s"name"or"likeness)"is"posthumous.""The "statute"does"not"specify"the "

duration"of"the"posthumous"right,"but"states"that"the"right"can"be"asserted"by"the"deceased’s"“surviving"spouse,"if"any,"or"by"the"

personal"representative.”""See#NEB."REV."STAT.§"20-208"(1989).""

"Prior"to"enactment"of"the"statute,"Nebraska"recogniz ed"neither"a"co m mon"law"right"of"publicity"nor"a"common"law"right"of"

privacy—misappropriation.""See,#e.g.,#Carson#v.#Nat'l#Bank#of#Commerce#Trust#&#Sav.,"501"F.2d"1082,"1084"(8th"Cir."1974);"

Schoneweis#v.#Dando,"435"N.W.2d"666,"669"(Neb."1989)."

"See#PETA#v.#Bobby#Berosini,#Ltd.,"895"P.2d"1269,"1283"(Nev."1995),"overruled#on#other#grounds#by#City#of#Las#Vegas#Downtown#

Redevelopment#Agency# v.#Hecht,#940"P.2d"134,"138"(Nev."1997).#

"See,#e.g.,#Remsburg# v.#Docusearch,#Inc.,"816"A.2d"1001,"1009"(N.H."2003).""At"least"one"federal"court"ha s"styled" New"

Hampsh ire’s"appropriation"tort"under"the"right"o f"privacy"as"a"“right"of"publ icity.”""Doe#v.#Friendfinder#Network,#Inc.,"540"F."

Supp."2d"288,"303"(D.N.H."2008)."

"See#Palme r#v.#Schonhorn#Enters.,#Inc.,"232"A.2d"458,"459"( N.J."Super."Ct."Ch."Div."1967).""Federal"courts"have"held"that"New"

Jersey"would"recognize"a"right"of"publicity.""See ,#e.g.,#Hart#v.# Elec.#Arts.#Inc.,"717"F.3d"141,"150–51"(3d"Cir."2013);"Estate#of#

Presley#v.#Russen,"513"F."Supp."1339,"1354"(D.N.J."1981)."

"See,#e.g.,"Moore#v.#Sun#Publ’g#Corp.,"881"P.2d"735,"743"(N.M."1994)."

"See,#e.g.,#Hubbard# v.#Journal#Publ’g#Co.,"368"P.2d"147,"148"(N.M."1964)."

"New"York"also"has"a "criminal"right"of"privacy"statute.""See"N.Y."CIV."RIGHTS"LAW"§"50"(1909).""Bills"were"introduced"in"the"

2017–18"session"to"provide"a"posthumous"right"of"publicity.""See"A."08155,"2017–18"Leg."Sess."(N.Y."2017)"and"S."05857,"2017–

18"Leg."Sess."(N.Y."2017 )."

"The"New"York"statute"is"styled"as"a"right"of"privacy"statute."

"New"York"courts"have"held"that"§§"50"and"51"provide"the"sole"remedy"for"right"of"misappropriation"cases,"and"that"claims"

under"the"common"law"rights"of"privacy"and"publicity"are"preempted.""See,#e.g.,#Stephano#v.#News#Grp.#Publ’ns,"Inc.,"474"N.E.2d"

580,"584"(N.Y."1984);#Messenger#ex#rel.#Messenger#v.#Gruner#&#Jahr#Printing#and#Publ’g,"727"N.E.2d"549,"551"(N.Y."2000)."

"See,#e.g.,#Hall#v.#Post,"372"S.E.2d"711,"718"(N.C."1988)."

"The"North"Dakota"Supreme"Court"has"declined"to"rule"on"whether"North"Dakota"recognizes"a"common"law"right"to"privacy.""

See#Am.#Mut.#Life#Ins.#Co.#v.#Jordan,"315"N.W.2d"290"( N.D."1982)."

"The"statute"protects"“an"individual’s"name,"voice,"signature,"photograph,"image,"likeness,"or"distinctive"appearance,"if"any"of"

these"aspects"have"commercial"value.”""OHIO"REV."CODE"§"2741.01(A)"(1999)."""

U.S. Copyright Office Authors, Attribution, and Integrity

"See"Zacchini#v.#Scripps-Howard#Broadcasting#Co.,"351"N.E.2d"454"(Ohio"1976),"rev'd#on#other#grounds,"433"U.S."562"(1977).""

The"statute"explicitly"does"not"preempt"common"law"claims.""See"OHIO"REV. "CODE"§"2741.08"(1999)."""

"See#Zacchini#v.#Scripps-Howard#Broad.# Co.,"351"N.E.2d"454"(Ohio"1976)#rev'd#on#other#grounds,"433"U.S."562"(1977)."

"Oklahoma"has"separate"statutes"providing"criminal"penalties"for"certain"violations"of"the"right"of"publicity.""See"OKLA."STAT."

tit."21"§§"839.1,"839.1A"(1985)."

"Rights"are"limited"to"“any"natural"person"whose"name,"voice,"signature,"photograph,"or"likeness"has"commercial"value"at"the "

time"of "his"or"her"death,"whether"or"not"during"the"lifetime"of"that"natural"pe r son"the"person"used"his"or"her"name,"voice,"

sign ature,"photograph,"or"likeness"on"or"in"products,"merchandise"or"goods,"or"for"purposes"of"advertising"or"selling,"or"

solicitatio n"of"purchase"of,"products ,"merchandise,"goods,"or"services.”"OKLA."STAT."tit."12"§"1448(H)"(1985)."

"See#Anderson#v.#Fisher#Broad.#Cos.,"712"P.2d"803,"808–09(Ore."1986)."""

"See#id."at"806–07."""

"See#Henry#v.#Cherry#&#Webb,"73"A."97,"109"(R.I."1909)."

"Section"9-1-28.1"is"styled"as"a"codification"of"the"right"of"privacy,"and"includes"the"tort"of"misappropriation.""

"See#Henry#v.#Cherry#&#Webb,"73"A."97,"109"(R.I."1909)."

"See#Gignilliat#v.#Gignilliat,#Savitz#&#Bettis#L.L.P.,"684"S.E.2d"756,"759"(S.C."2009)."""

"See#id."at"759.""

"The"initial"term"of"protection"is"10"years"after"death,"and"an"exclusive"right"to"commercial"exploitation"su rvives"thereafter"

until"terminated"upon"proof"of"two"years"of"non-use.""See#TENN."CODE"§"47-25-1104"(1984)."

"See#State#ex#rel.#Elvi s#Presley#Intern.#Mem’l#Found.#v.#Cro well,"733"S.W.2d"89,"97"(Tenn."Ct."App."1987).""At"least"one"fede ral"

court"has"found"common"law"right"of"publicity"claims"preempted,"although"the"court"did"not"address"the"effect"of"TENN."CODE"§"

47-25-1106(e),"which"states"that"the"statute’s"remedies"are"cumulative"to"other"remedies"available"by"law.""See#Marshall#v.#

ESPN,"668"Fed."Appx."155,"157"(6th"Cir."2016)."

"See#West#v.#Media#Gen.#Convergence,#Inc.,"53"S.W.3d"640,"645"(Tenn."2001).""

"A"claim"is"available"where"the"deceased’s"“name,"voice,"signature,"photograph,"or"likeness"has"commercial"value"at"the"time"

of"his"or"her"death"or"comes"to"have"commercial"value"after"that"time.”""TEX."PROP."CODE"§"26.003(2)"(1987).""

"See#Kimbrough# v.#Coca-Cola/USA,"521"S.W.2d"719,"722"(Tex."Civ."App."1975)."

"See#Express#One#Intern.,#Inc.#v.#Steinbeck,"53"S.W.3d"895,"900"(Tex."App."2001)."

"Utah"also"has"a"criminal"right"of"publicity"statute.""See"UTAH"COD E"§"76-9-407"(1981)."

"See#Cox#v.#Hatch,"761"P.2d"556,"563"(Utah"1988).""At"least"one"federal"court"ha s"held"that"Utah"would"recognize" a"common"

law"right"of"publicity,"as"well.""See#Nature’s#Way#Prods.#v.#Nature-Pharma,#Inc.,"736"F."Supp."245,"251"(D."Utah"1990)."

"See#Staruski#v.#Cont’l#Tel.#Co.#of#Vt.,"581"A.2d"266,"268"(Vt."1990).""The"court"speculated"that"there"might"be"a"separate"cause"

of"action"under"the"right"of"publicity"where"t he"plaintiff"is"famous"and"h as"a"nam e"or"likeness"with"commercial"value.""Id.#at"

269.""

"Virginia"also"has"a"criminal"right"of"publicity"statute.""See"VA."CODE"§"18.2-216.1"(1950)."

"While"the"statute"does"not"expressly"preempt"common"law"claims,"the"Supreme"Court"of"Virginia"has"found"that"the"statute"

had"the"effect"of"preempting"such"claims.""See#WLJA-TV#v.#Levin,"564"S.E.2d"383,"395"(Va."2002)."

"See#State#ex#rel.#La#Follette#v.#Hinkle,"229"P."317,"319"(Wash."1924);"Lewis#v. #Physicians#and#Dentists#Credit#Bureau,"177"P .2d"

896,"899"(Wash."1947)."

"See,#e.g.,#Reid# v.#Pierce#Co.,"961"P.2d"333,"339"(Wa sh."1998).""

"See#Curran#v.#Amazon.com,#Inc.,"No."2:07–0354,"2008"WL"472433,"at"*4"(S.D.W."Va."2008)."

"See#Crump#v.#Beckley#Newspapers,#Inc.,"320"S.E.2d"70,"84"(W."Va."1983)."

"The"Wisconsin"statute"is"styled"as"a"codification"of"the"right"of"privacy,"and"includes"the"tort"of"misappropriation."

#See"Hirsch#v.#S.C.#Johnson#&#Son,#Inc.,"280"N.W.2d"129,"137–38"(Wis."1979)." "

"See#id."at"133.""

"A"recent"decision"of"the"Supreme"Court"of"Wyoming"adopted"the"right"of"privacy"as"set"out"in"the"Restatement"(Second)"of"

Torts,"but"the"tort"at"issue"was"intrusion"upon"seclusion.""See"Howard#v.#Aspen#Way#Ente rs.#Inc.,"406"P.3d"1271,"1273"(Wyo."

2017)."

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