“Authors and Auteurs: The Case for Moral Rights in Film,” Los Angeles Copyright Society (LACS), May 11, 2011

Authors and Auteurs: The Case for Moral Rights in Film.

“It has been two decades since the American film industry last confronted a serious demand for moral rights. These non-commercial rights protect the personal interests of creative authors, including attribution and the preservation of the integrity of one’s work. In most countries of the world, including common-law countries such as the UK and Canada which were historically suspicious of moral rights, they have now become an automatic component of the bundle of rights included within copyright law. The United States remains a notable exception to this rule. The confusion that moral rights might bring to film production is a major reason for American reluctance to accept them.

“The famous debate over film colorization in the late 1980s and early 1990s saw a bitter debate around the issue of whether the studios who owned films had the right to convert black and white films into color movies to expand their audiences. This new technology of the time was strongly opposed by a number of prominent American film directors. In an editorial in the New York Times, Woody Allen argued – presciently – that the rise of MTV suggested a strong market for black and white video among the younger generation.

“Among the most interesting aspects of the controversy was its international dimension. The United States did not recognize moral rights, but many other countries did. Accordingly, US directors were able to argue in foreign courts for the prevention of colorization, leading to the Huston case – a famous French precedent that ruled against the broadcast of colorized versions of John Huston’s films on French television. Huston, the court said, was an artist; and the law must uphold his artistic judgments. The case illustrated a strange anomaly: American film directors enjoyed better recognition abroad than they did in their own country.

“The fad of colorization has now dissipated – Ted Turner, the nemesis of the film directors at the time, now offers classic films in original versions on his own specialty network, Turner Classic Movies. Nevertheless, for new reasons, the issue of moral rights has become interesting again. A number of countries in the world have adopted moral rights for the first time – the United Kingdom, Australia, New Zealand – while others have continued to amend and adapt their laws to reflect the environment of digital technology – France, Germany, Russia, India, and Canada, where copyright reform is in progress, offer some examples. In the meantime, the United States

has yet to adopt a comprehensive scheme for the protection of moral rights, and the Dastar case of 2003 seems to have closed off existing legal options for their protection.

“This presentation will explore the question of whether moral rights in film have become

important in the digital environment. New technology allows new methods of manipulating film; it makes new images and sounds available, and it offers new methods of distribution that are likely to develop in much the way that music has, over the past decade, through downloading, streaming, and even file-sharing possibilities. At the same time, the international distribution of films makes it difficult to contain American movies within the confines of domestic law. There is every possibility that US producers will increasingly find themselves confronted by different legal expectations about moral rights in foreign jurisdictions, potentially opening them up to liability.

“How will the American film industry cope? This presentation will suggest that the best way of adjusting to the future of film might be to seize leadership in this area. What could an American moral right in films look like? Would the American public accept it, and how could it assist the United States in promoting its digital agenda abroad?”