Re: "Bowdlerizing for Columbine" piece

At 11:06 AM 1/21/03 -0500, Clark, Drew wrote:
>Slate just posted my article on the Clean Flicks lawsuit. In it, I show how
>moral rights theories of copyright are in tension with free speech, and
>argue that directors have no moral rights to their movies.

As someone who has published several articles on moral rights I suppose I shouldn't pass up the opportunity to comment. ;-)

Drew is correct that *in the US* the directors have no moral rights in their films (except possibly in Massachusetts, see below), since the only law that confers such a right, VARA, expressly excludes motion pictures from its definition of "work of visual art." The copyright arguments that the studios have in respect of the various technologies employed are, I think, well rehearsed by Drew and his analysis can stand on its own legs.

Drew does I think make a couple of conceptual errors in describing moral rights from the European perspective. France doesn't necessarily have a different conception of copyright-as-property from us; moral rights sit alongside copyright in French and most European legal systems, and that is a strength and weakness in areas of authorship that are as commercially fraught as movie-making. The French author's rights law of 1957 that codifies moral rights (along with copyright) notes that many people have moral rights in films--the producers, the director, the screenwriters, the composer, et al. Each of these theoretically has a veto on any alterations to the final product, but in practice not even the French courts can put up with that kind of chaos, so, oddly and awkwardly in that land of codes, moral rights continues to develop along common-law lines, being adjusted and compromised case by case (remember the old joke: "everything is prohibited, but anything can be arranged"?).

Now, what about Massachusetts? Our state moral rights law, pretty much dormant since 1990, does apply to films (I think it's the only one in the country that does, unless the New York law can be so construed), and this aspect of it seems to have been saved from preemption if the legislative history of VARA can be believed. Therefore, if I were one of those Utah companies, I'd avoid selling the product in Massachusetts. Or, needless to say, in Europe.

Vance R. Koven, Senior Attorney
Comverse, Inc.
100 Quannapowitt Parkway
Wakefield, MA 01880 USA
+1 781-224-8523 (vox humana)
+1 781-224-8144 (fax mechanica) Received on Wed Jan 22 2003 - 17:03:40 GMT