Digital technology
rearranges the
very molecules

of what
we
know, speak and remember.

ARTISTS' RIGHTS
in the
DIGITAL UNIVERSE

(first published in DIGITAL MEDIA)
Copyright 1996-2004
by Patric Hedlund


Will a future studded with cybervoid boomtowns auction off its cultural legacy to be shredded into digital graffiti?

Gumping the Universe and Digitizing Duck Soup

We laughed and munched movie popcorn as American presidents were reduced to digital puppets pumping the hand of Forest Gump....

It was funny in a way that makes heritage-conscious Europeans wince.

Are we headed toward cybervoid boomtowns smothered in digital graffiti, a world that has cannibalized its own history and culture?


Money Vs Moral Rights: An Indecent Proposal? Article Six of the International Berne Convention Treaty on Copyright. Europeans believe that separate from economic rights, a "moral right" belongs to artists as a guarantee of respect for their name and capacity as authors, and a guarantee to the public of the integrity of the product being distributed.
A Guarantee of Integrity? Trust is Value in the Nonphysical World  
Harmonizing Shockwaves -- The Truth Up For Sale? Countries such as France...are shocked by the United States' reliance on the private sector for cultural preservation...

U.S. corporate lobbyists such as Disney argue that an artist's moral rights are irrelevant, and corporate holders of economic copyright--not the flesh and blood humans that created the work-- should be designated the authors.

In U.S. courts today Time-Warner Books could be considered the author of The Hunchback of Notre Dame, and Ted Turner would be considered the author of Gone With the Wind.
Mutation or Mutilation?

Value-added services are being offered to users, and graphic experiments in a spirit of fun explore the difference between "mutation" and
"mutilation."

 
Leveling the Playing Field Concerned artists believe the creator should maintain copyright title, have artistic consultation rights in the event the publisher wants to make changes, and that authors give up only rights that are being paid for.... * In 2001, these same issues are being discovered and discussed at the Norman Lear Center/ Annenberg School for Communication at the University of Southern California.

The big questions: What have artists accomplished in the intervening five years? And how shall we take action now?

Author's Bio:
Patric Hedlund, M.A., created SoftForce®, an exploration of consciousness states as a computer interface. She is an Applied Media Anthropologist, multimedia artist and systems integrator with extensive television production credits who is currently completing a book and film about the power of augmented reality to alter the human neurosystem. She also designed and supervised construction of a 300-family broadband interactive community cable TV system equipped with house-to-house analog-digital video conferencing. (Learn more about Dendrite Forest, Inc. at http://www.forests.com)


From the Makers of

HOME CONTACT US
SoftForce® and Dendrite Forest® are Registered Trademarks
of Dendrite Forest, Inc.

copyright 1996-2004



Digital imaging and distribution technology
rearrange the very molecules
of what we
know, speak and remember. Documentary
filmmakers concerned about factual accuracy
have cause to be especially concerned as they
lose control of their own copyrights.

ARTISTS' RIGHTS IN THE
DIGITAL UNIVERSE

by Patric Hedlund © 1996-2004

 

 

Are we headed toward cybervoid boomtowns smothered in digital graffiti, a world that has cannibalized its own history and culture?


Author's Bio:

Patric Hedlund, M.A., is an Applied Media Anthropologist, documentary producer and multimedia artist has extensive television production credits. She supervised design and construction of a 300-family broadband interactive community cable TV system equipped with house-to-house video conferencing; created SoftForce®, an exploration of consciousness states as a computer interface; and is currently working on a book and film about the power of augmented reality to alter the human neurosystem. (Learn more about Dendrite Forest, Inc. at http://www.forests.com).


We laughed as the filmed images of American presidents were reduced to digital puppets pumping the hand of Forest Gump, who only wanted to know where to find the bathroom.

But it was funny in a way that makes heritage-conscious Europeans wince.

 

 

 

 

 

 

Countries such as France...are shocked by the United States' reliance on the private sector for cultural preservation...

 

 

 

 

 

 

U.S. corporate lobbyists such as Disney argue that an artist's moral rights are irrelevant, and corporate holders of economic copyright--not the flesh and blood humans that created the work-- should be designated the authors.

 

 

 

 

 

Europeans believe that separate from economic rights, a "moral right" belongs to artists as a guarantee of respect for their name and capacity as authors, and a guarantee to the public of the integrity of the product being distributed.

 

 

 

 

 

"Truth is up for sale," warns the Artists' Rights Foundation.

 

 

 

 

"If the U.S. prevails it will damage the whole world," their lawyer states, "I don't think these companies understand the implications of what they are suggesting."

 

 

In the digital world, authenticity takes on economic value.

 

 

 

 

 

Reputation and integrity are necessary prerequisites for establishing trust online, and trust is vital for business on the web.

 

 

 

 

 

 

 

Web page theft and even"hijacking" of sites by crafty pirates, not to mention wholesale appropriation of data, has become common...

 

 

 

 

Value-added services are being offered to users, and graphic experiments in a spirit of fun explore the difference between
"mutation" and
"mutilation."

 

 

 

 

 

Concerned artists believe the creator should maintain copyright title, have artistic consultation rights in the event the publisher wants to make changes, and that authors give up only rights that are being paid for....

From the Makers of

 

 

 

HOME SEEKERS BOOKS
CONNECTIVITYCONTACT US

SoftForce® and Dendrite Forest® are Registered Trademarks
of Dendrite Forest, Inc

 

Whether your field as a filmmaker happens to be reporting the truth about vital public issues or spinning fanciful tales, our
business models and funding strategies need to consider changing conditions related to ownership and copyright.


Just as technologies and industries are converging, so too are contract standards for artists. Artists from all disciplines now share the need to establish a code of fair treatment
when producing content for today's vertically integrated
media conglomerates.

Writers were hit first. Communication corporations first tried to claim electronic rights to work they'd licensed for print publication without paying additional fees or making new agreements for CD, DVD and Web use. Creators in other media--including documentary producers--are now being confronted with turf challenges such as loss of all ownership rights to their work and even attempts to eliminate credits on telecasts. "All rights contracts" are converting filmmakers to "work for hire" status.

These conditions make finding advance funding--and retaining independence--even more urgent for documentary makers.

While America's communication moguls spin through their mad dance of mergers and acquisitions, Hollywood dreamspinners with names like Spielberg, Zemeckis, and Scorcese see a nightmare looming dead ahead.

They point to cybervoid boomtowns smothered in digital graffiti, a world that has cannibalized its own history.

Perhaps the postmodern pop culture of cyberspace is too irreverent to care, but Net publishers, film artists, WWW content producers and international artists' rights groups must.

Serious international debate, legislative dogfights, and a search for solutions have begun to address the problem of authenticating information and protecting reputations on the Net. The issues are being defined in Hollywood, Washington D.C. and the capitals of Europe.

Gumping the Universe

We all laughed as Robert Zemeckis reduced American presidents to digital puppets pumping the hand of Forest Gump, who only wanted to know where to take a leak.

But it was funny in a way that makes heritage-conscious filmmakers from Europe and Asia wince.

Today Zemeckis has joined the Hollywood-based Artists' Rights Foundation to sound an alarm:"There is an immense power being unleashed. It is serious if it falls into the wrong hands."

He says the tools to make invisible digital alterations to historical images are now at least six times more developed than those used in Gump. Infinitely malleable etch-a-sketch reality offers great opportunity to artists, tremendous profit potential to business, and staggering responsibility to society.

Digitizing Duck Soup

Steven Spielberg, a principal in Dreamworks SKG, glimpsed the future while channel surfing.

He was stunned to see that Universal Pictures had long ago sliced up key segments of his first TV film, The Duel (with Dennis Weaver) into an episode of The Incredible Hulk.

No one had asked what Spielberg thought of that idea. He had long ago waived his right to an opinion by signing a"work-for-hire" contract with Universal.

Today, Hollywood's classic film libraries change hands with every new studio merger or corporate buyout.

Spielberg and members of the Artists' Rights Foundation are concerned. As individual films are distanced from their creators, they can slip into the status of equity assets to be marketed, exploited and then mined for stock footage--even digitized for video game environments.

Michael Backes, founder of Rocket Science Games (and screenwriter with Michael Crichton for Rising Sun), sees endless tempting scenarios for profitable digital mischief beyond remixing digital music and re-editing music videos.

He laughs about casting from Forest Lawn: "We can digitally resurrect dead actors to appear in new films, or even re-release old films in new media, enhanced with today's bankable celebrities," Backes points out, suggesting "you could update the Marx Brothers' Duck Soup with Jim Carrey digitally replacing Groucho."

Organizations from the American Bar Association to the American Association of Publishers (AAP) sense heightened urgency among consumers, artists and publishers alike about authenticity. Both organizations are exploring technological solutions and ways to define legal standards.

As the accelerating pace of Internet commerce pushes distribution of altered products into global markets, countries such as France--which administer copyright issues from a cabinet level Department for Cultural Preservation--are shocked by the United States' Department of Commerce reliance on the private sector for cultural preservation.

Money Vs Moral Rights: An Indecent Proposal?

Article Six of the International Berne Convention Treaty on Copyright.

In Europe, the notion of integrity of artistic expression traditionally links ideals of authenticity and historical preservation--and both are taken very seriously.

For over a hundred years, under the International Berne Convention on Copyright, most of the world has split legal protections for creative works into two equally respected sectors: economic rights and"moral" rights.

Under Article Six of Berne, 102 countries agree to grant to an author of another member country, regardless of the ownership of economic copyright in the works,"the right during his lifetime to claim authorship of the work and to object to any distortion, mutilation or other alteration...to the work which would harm his honor or reputation."

If you drop the politically incorrect pronouns, this clause could have been written today with the digital dilemma in mind.

It was crafted in mid-19th century, when author Victor Hugo (Les Miserables, The Hunchback of Notre Dame) was exiled from France because of political conflicts with descendents of Napoleon Bonaparte. The thoughts Hugo sent home in his books were his virtual persona, cherished by the French, who fiercely defended Hugo's moral right to speak--and their moral right to hear-- his thoughts, unaltered by political authorities.

Because digital imaging and distribution technology can now so rapidly rearrange the very molecules of what we know, speak and remember, it is worthwhile to keep this heritage in mind.

The US finally signed the Berne Treaty in 1989 when studios sought to secure international assistance against piracy, but under the lobbying influence of the Motion Picture Association of America (MPAA), Congress stopped short. They did not enact U.S. laws to extend the Article Six moral rights protection to American artists.

According to Artists' Rights Foundation president Elliot Silverstein,"They were convinced by MPAA lobbyists to perform a legislative acrobatic backflip."

The MPAA, headed by the famously charming Jack Valenti, represents studios owned by the world's largest media conglomerates, including 20th Century Fox, Buena Vista (Disney), Warner Brothers, Paramount, Sony, Turner Entertainment, Universal--all the fellows such as Ted Turner, Rupert Murdoch,and Peter Eisner whom you saw February 29th standing shoulder to shoulder with President Clinton, raking in political favors by supporting his"V" chip proposal to make television safe for family values in an election year.

The Artists' Rights organization is fighting the notion that Ćauthors' are already adequately protected under existing U.S. copyright law. The problem, Silverstein clarifies, is that authorship in the US has only an economic definition. "Once the artist relinquishes economic control, they have surrendered all claim and control to their own creations." Under U.S. copyright law, the "author" is defined as whoever owns the right to benefit from marketing a creative work. So, in U.S. courts today for instance, Time-Warner Books could be considered the author of The Hunchback of Notre Dame, and Ted Turner would be considered the author of"Gone With the Wind."

To European artists such as Joao Correa, chair of a committee that administers European Community intellectual property issues for audiovisual writers and directors, this is inconceivable."The rights of the author to control the integrity of the work are considered by several European countries to be the key rights, and the economic rights are secondary," explains Pamela Samuelson, professor of intellectual property law at Cornell University.

Samuelson and Correa emphasize that it is a matter of cultural values."Some countries," Samuelson adds,"fear that without guarantee of artists' rights, something really important about creativity will be diminished."

The MPAA's Valenti maintains that work-for-hire contracts --commonly used by multimedia producers such as Sierra Online and Disney--"have worked splendidly in the United States for 80 years and we see no reason to change that."

Valenti also claims"it is possible to make large investments in producing, promoting and distributing American film and ancillary products because of the certainty that the [product] will be able to move freely and flexibly throughout the marketplace, without any interruption in the marketing sequence.≤ Correa comes unglued at the notion that honoring artists' rights impedes the value of creative work."It is not historically accurate to imply that moral rights pose an 'interruption' to wide distribution of creative works," he told a gathering of American filmmakers at the Artists' Rights Foundation.

A Guarantee of Integrity?

European artists believe that moral right belongs to the individual as a guarantee of respect for the artist's name in his capacity as author, and a guarantee to the public of the integrity of the producer and distributor.

Spielberg has pledged to make Dreamworks contracts reflect those principals. He agrees that creators want to know in what ways and in what spirit their work is being contextualized and packaged.

European Community artists and the Artists' Rights Foundation believe the public will support that practice. But Dreamworks has no sample contracts to offer yet. Their is still some skepticism among Americans and Europeans that a studio will take that kind of leadership.

Harmonizing Shockwaves -- The Truth Up For Sale?

Through the World Intellectual Property Organization (WIPO) and the General Agreement on Tariffs and Trade treaties (GATT or GII), at least 102 nations are now negotiating to harmonize copyright laws and trade agreements.

Individual Americans are on several sides of the issues.

Lawyers representing film artists, writers, photographers, journalists and other content creators such as Arnold Lutzker, Washington, DC-based counsel for Artists' Rights, charge that the current US government position in international negotiations is guided by the MPAA. The MPAA, he says,"lobbies for the position that an artist's moral rights are irrelevant, and corporate holders of economic copyright, not the flesh and blood humans that created the work, should be designated the authors."

Samuelson notes that the Clinton administration's NII (National Information Infrastructure) White Paper announced an intention to make moral rights waivable by contract on a worldwide scale."Truth is up for sale," warns Keith LaQua, of the Artists' Rights Foundation."If the U.S. prevails it will damage the whole world," he says flatly,"I don't think these companies understand the implications of what they are suggesting."

In response, unions of creative workers have become more active in the last two years than they have been for the past decade. Just as technologies and industries are converging, so too are contract standards for artists. Artists from all disciplines start to share the need to establish a code of fair treatment when producing content for the World Wide Web. Communication corporations have been trying to claim electronic rights to work they've published in another medium, without paying additional fees or making new agreements. Writers have been first hit, but creators in other media are expected to be confronted with the same turf challenges soon.

The NWU hopes to see the best standards emerge for all authors in which the creator would maintain copyright title, have artistic consulation rights in the event the publisher wants to make changes, and that authors give up only rights that are being paid for.* [see 2003 update note below]

Coalitions of European artists are joining with US groups such as the Director's Guild of America, the Writers Guild, American Cinema Editors, the Screen Actors Guild, the Society of Composers and Lyricists, the Artists' Rights Foundation, American Society of Media Photographers, the Author's Guild and the National Writer's Union (NWU) on this issue.

These groups speculate that extension of the Berne Convention's Article Six moral rights to the U.S. could serve as a kind of drag chute to slow the warp-speed digital butchery they fear may befall America's film heritage.

Their first goal is to raise the debate and educate the public. Their second goal is to secure better copyright protection for creators. The third goal is to address security and authenticity liabilities on the Net.

Trust is Value in the Nonphysical World

Economic vs moral issues evolve online into re-emphasis on authenticity, if only because in the digital world, authenticity takes on economic value.

Reputation and integrity are necessary prerequisites for establishing trust online, and trust is vital for business on the web.

But pulling in the opposite direction is demand for online content-driven sites, which increase incentives for digital repackaging entrepreneurs.

Mutation or Mutilation?

Extraordinary value-added services are being offered to users, and graphic experiments in a spirit of fun explore the difference between"mutation" and "mutilation."

Leading developers such as Jim Baumgarden and Mark Jeffrey at The Palace (originally developed under the wing of Warner Brothers Music but recently acquired by Intel), report there are also widespread reports of web page theft and even"hijacking" of sites by crafty pirates, not to mention wholesale appropriation of data.

In this environment, over the last five years, Samuelson believes there has been a subtle shift of opinion among publishers and online businesses. Perhaps what the MPAA has fought so hard to destroy may actually be a benefit to the unique concerns of Web commerce.

AAP's attorney Jon Baumgarten agrees there is a growing "community of interest about authenticity" made up of authors and copyright holders. They are alarmed about the potential for fraud and artistic counterfiet in the wildwest world of digital commerce.

Publishers--as the traditional assurers of accuracy and reliability--are floating a number of initiatives to insure reliable delivery of electronic content. The NWU's proposal for"authentication checksums," (digital watermarks embedded in valid copies) and the Interactive Multimedia Association's Imprimatur, which wraps works in digital envelopes sealed with an encryption algorithm, are techniques being discussed to provide a stamp of authenticity.

But skeptics doubt that the ultimate bulletproof encryption for such purposes are likely without a radical reworking of the architectural underpinnings of the Net itself. Nonetheless, The NII Protection Act is expected to pass through Congress this year, making it a criminal offense to tamper with security devices, to falsify copyright management information or to remove such protections.

National Writers' Union (NWU) counsel Maria Pallante speculates that an eventual compromise on the copyright issue will separate moral rights into two categories: the right of paternity and the right of integrity.

The right of integrity will be waivable if an artist chooses to sell it to a publisher or distributor, but the right of paternity will remain with the artist no matter what the economic history of the creation.

Waivability--now in the work-for-hire contracts used by Microsoft for instance--allow companies"to digitize, modify, translate and create derivative works...."

But NWU is working to promote the concept that the artist retains a "right of paternity," meaning that artists may require that the work bear their name, or "based on" credits, or conversely, that artists should have the right to disclaim an altered work, and to announce to the public that it has been changed from the original.

Observers suggest that the publishers should be glad to keep the artists involved with their work. They propose that keeping as many people as possible invested in net creations creates a wider sweep of self-interest to monitor infringement and alterations.

Extending moral right of paternity may be an effective way to recruit a motivated team that will serve to safeguard a distributors' reputation. A devoted community of users and carefully maintained goodwill between all parties (creative artists, distributor and customers) appears to be the most resilient form of defense in a world filled with digital pirates.

Leveling the Playing Field

The Artists' Rights Foundation's Lutzker hopes that laws governing contractual issues may level the playing field between powerful studios and artists.

The Film Disclosure Act promotes accurate labeling of altered films. Whether the film is distributed by VHS video cassette, broadcast television or on the Internet, artists with serious objections about changes to their original work, who feel the work's integrity has been damaged, would be able to demand that the viewer be informed that changes have been made.

A bill introduced by Rep. John Bryant (D-Tex.), proposes that the U.S. take the first step toward living by the terms of the Berne Treaty. Currently the Bryant Bill covers only film.

When asked if it should be amended to include all media, including multimedia and webworks, Bryant's spokesman Carlton Carl suggested the current bill is a first step to force groups to work out issues that won't necessarily get addressed otherwise.

"We may find something that will intimidate the people involved to come together to agree to something," Carl says. In the absence of such an event, the Artists' Rights Foundation says it is readying test litigation.

Net businesses of all sizes have a stake in the outcome, as do filmmakers, musicians and writers.

* 2002 NOTE: The National Writers' Union (NWU) litigated this principle, taking The New York Times all the way to the Supreme Court. It was a hard-fought contest, but NWU finally won its case,Tasini vs New York Times. The Supreme Court ruled in favor of freelance writers, agreeing that selling print rights to their original freelance work does not mean that they have automatically surrendered their right to be consulted and compensated for digital republication of their work.

The New York Times, grumpy about losing the case, decided they would not negotiate honorable agreements with the freelance writers whose work they had been using without payment for years and which accounted for a substantial percentage of the New York Times' electronic archive. Instead, "the newspaper of record" followed through on their threats to press the "delete" button on tens of thousands of stories by independent writers, thereby ensuring significant gaps now exist in the historical record supplied by the New York Times.

In addition, the New York Times, along with the Los Angeles Times, Boston Globe and several other major newspapers began to tie new writing assignments to their demand that freelancers "voluntarily" sign "all rights" contracts, effectively forcing freelancers to agree to contractually surrender their electronic publication rights to both future--and past--stories used by the New York Times. This coercion is being resisted by members of the National Writers' Union and like-minded freelancers, but the coercive power of those who hold the key to distribution has been demonstrated.

[In the interest of full disclosure, I should mention that after researching and writing this article, I decided to join the NWU to support their Supreme Court case, and am now a member. PH]

Copyright 1996-2004 by Patric Hedlund
(first published in DIGITAL MEDIA)
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