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
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.
conditions make finding advance funding--and retaining
independence--even more urgent for documentary makers.
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.
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
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.
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
Today, Hollywood's classic film libraries
change hands with every new studio merger or corporate
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.
Vs Moral Rights: An Indecent Proposal?
Six of the International Berne Convention Treaty on
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"
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.
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
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."
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'
Guarantee of Integrity?
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.
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
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."
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.
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
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.
Extraordinary value-added services are
being offered to users, and graphic experiments in
a spirit of fun explore the difference between"mutation"
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
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.
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
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
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.
the Playing Field
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
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
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.
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
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)