Copyright (c) 1983, The International Trademark Association,
The Trademark Reporter
May, 1983 - June, 1983
73 TMR 251
SECTION 43(a) OF THE LANHAM ACT
AS A DEFENDER OF ARTISTS' "MORAL RIGHTS"
Flore Krigsman *
* LLM, New York University School of Law, 1982. Copyright (C) Flore Krigsman
If the interests of authors, artists and creators were the same as those
of merchants, then upon the sale of their stock in trade, creators and businessmen
alike would deem the transaction completed, and their concern with the further
adventures of their products terminated. General Motors does not seek to
enjoin CHEVROLET owners from driving their automobiles with dented fenders
or painted a color different from that which it wore when it left the distributor's
showroom. Neither General Motors' nor the public's interest is appreciably
injured by such alterations.
For the artist, however, the sale of his work or its submission to the public
does not end his interest in his creation. Art has qualities distinctly
different from those of utilitarian goods destined to be consumed. Were
it not so, museums, galleries, libraries and concert halls would not be
sanctuaries of the world's cultural heritage. These qualities of art, and
the creator's interest in them, are less than fully recognized in American
The Copyright Act of 1976, n1
which is designed to protect original works of authorship, n2
grants owners of copyright the exclusive right to reproduce, prepare derivative
works, and to distribute, perform and display the copyrighted works; n3 it prohibits unauthorized
commercial exploitation of the work, in a sense treating it like a commercial
product such as "a barrel of pork"
n4 or an automobile. The Act's commercial orientation
derives from its ancestral forebear, the Statute of Anne of 1710, which
was designed to protect not authors, but the economic interest of English
printers by granting them a monopoly against their Scottish competitors. n5 Except for Section
115 which protects composers of published non-dramatic musical works against
mutilation by owners of compulsory licenses, our Copyright Act contains
no provision to protect against distortions, or violations of the integrity
of copyrighted works. The statute is equally silent with respect to the
author's right to have his work identified with his name.
Our copyright law is scarcely unique in this respect, but in countries ruled
by civil law, artists also are afforded protection of their continuing interest
in their creations under the doctrine of "droit moral." Distinct
from copyright, the doctrine is based on the concept that the artist, in
placing his work before the public, has a personal interest in his creation
that is inalienable even when the work is sold in the market place. Since
the doctrine also operates to safeguard the cultural interest of the nation
in artistic works, the Constitutional clause aimed at the promotion of "the
Progress of Science and the Useful Arts" n6
would seem to permit American law, indeed encourage it, to give express,
statutory recognition to artists' moral rights.
Moral Right Under the Civil Law
The droit moral statute of France, as analyzed by Raymond Sarraute, n7 is discussed here
to exemplify the protection several continental European nations have afforded
artists, authors and creators. Artistic and literary works there are viewed
as involving two elements: a property right analogous to copyright which
is limited to a term of the artist's life plus fifty years (as in the United
States); and a "moral" right which is intended to protect the
personality as well as the work of the artist. That moral right includes
four separate rights.
(1) The right of disclosure assures that the artist is the sole judge of
when his work is a completed creation, and if and when it should be submitted
to the public. The right is inalienable, n8 and upon the artist's death,
exercisable by his executors, descendants spouse or other heirs. n9 If an artist refuses
to deliver on his contract, he is liable for damages resulting from the
breach, but the court cannot order him to deliver his work unless his refusal
is in bad faith. n10
(2) The right of withdrawal secures to the artist the right to modify or
withdraw his work after he has brought it before the public or transferred
it to another person. Should the artist withdraw his work, he must compensate
the transferee for the resulting losses. The right is applicable only to
publishing contracts -- not to fine arts -- and evidently has not been exercised
since the law was promulgated in 1957. n11
Possibly that reflects the economic state of artists, who usually cannot
afford to withdraw their work on penalty ofcompensating publishers. The
right seems to be of doubtful utility.
(3) The right of paternity comprises three aspects: the author has the right
(1) to have his name attached to his work, (2) to prevent the works of others
from being attributed to him, and (3) to prevent his work from being attributed
to others. Unlike copyright protection which inures only to copyright proprietors,
the moral right protection follows the creator, whether or not he is the
owner of the copyright, and extends to whatever name he assumes as author.
The legal protection is granted "solely for the performance of the
creative act"; n12
the merit of the work is irrelevant.
(4) The right of integrity protects the artist against any distortion or
alteration of his creation once the completed work has been transferred
or made the subject of publication or performance. From this moment on the
author can insist that the integrity of his work be maintained. The right
is transmissible to heirs or assignable by will.
The moral rights are inalienable and perpetual, take precedence over the
enforcement of contracts n13
and are distinct from copyright ownership. Thus, a French artist may part
with his work, may part with his copyright, indeed, may part with his life;
but not with his moral right (though after death, the right is exercised
per force on his presumed behalf by his surviving surrogates).
The Principles of paternity and integrity, the two most critical elements
of moral right, are embraced by the Berne Convention, which in Article 6bis
provides as follows:
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.
Among other reasons, because its laws fail to recognize the non-economic
interest of authors and artists, the United States is not a member of the
Moral Rights in the United States
Moral rights are not usually recognized as such under American law n14 and no court has
ordered relief for artistic injuries where the plaintiff has rested his
claim solely on such a theory. n15
Undoubtedly, the phrase "moral right," viewed by some as "something
arouses in others a justifiable apprehension of legislative or judicial
interference with morality. The phrase, an unfortunately literal translation
of "droit moral," is a barrier to legal recognition of the principles
The Shostakovich n17
court found that the doctrine presented problems outside the competence
of the judiciary to resolve. What was the standard to be used by which to
determine whether a moral right had been violated? "Is the standard
to be good taste, artistic worth, political belief, moral concepts, or what
is it to be?" n18
But that court was raising questions that are irrelevant to the doctrine.
It is not the artistic merit, nor the moral or political worth of a creative
work that is the basis of moral right, any more than any of these is the
basis of copyrightability. n19
Beyond the semantic objection, the greater obstacle to an American reception
of droit moral is rooted in the legal tradition of redressing wrongs only
upon a showing of monetary loss or potential economic harm. But the evolution
of the right of privacy reminds us that even this barrier is not insurmountable.
Prosser tells us that Before 1890 no English or American court ever had
granted relief expressly based upon the invasion of the so-called right
to privacy. . . . The apparent reluctance to recognize such a right was
grounded on the purely mental character of the injury.
Yet today nearly all jurisdictions recognize the right, n21
despite the absence of monetary harm.
American law, therefore, is sufficiently flexible and responsive to embrace
moral rights, by any name more palatable to legislators or to the courts.
Commentators on the subject are unanimous in their support of an American
accommodation to the continental doctrine; n22
they differ only as to the degree to which existing causes of action already
protect such rights.
A variety of legal theories outside the ambit of copyright can afford remedies
for wounds inflicted on the works and reputations of artists, when the factual
circumstances are conformable to a legally cognizable cause of action and
plaintiff can show pecuniary damages.
Getting Around the Moral Right Vacuum in the United States
The wolf dressed in sheep's clothing gets his dinner. The resourceful attorney
who can find a justiciable costume to disguise his client's moral wounds
can enter the courthouse to redress the harm inflicted on the artist. The
wardrobe of causes of action is varied, but limited, and since each costume
must conform to the needs of the occasion, success in court will depend
on a suit well-tailored to the facts.
Not all courts have been indifferent to the unique properties of artistic
Even the matter of fact attitude of the law does not require
us to consider the sale of the rights to a literary production in the same
way we would consider the sale of a barrel of pork. . . . The man who sells
a barrel of pork . . . may pocket the purchase price and retain no further
interest in what becomes of the pork. . . . The author is entitled not only
to be paid for his work but to have it published in the manner in which
he wrote it. The purchaser cannot garble it or put it under another name
than the author's, nor can he omit altogether the name of the author, unless
the contract with the latter permits him so to do.
This (Judge Seabury's) view regarding paternity rights, however, is a minority
position. The general rule is that unless there is a contractual obligation
to give an author credit, there is no legal duty to do so. This legal principle
was consistently observed in Vargas v. Esquire n24
and Granz v. Harris n25
with opposite results for the plaintiffs. When Vargas sold drawings of his
famous pin-up girls to ESQUIRE magazine, his contract did not stipulate
authorship credit and he was thus left with only a moral right ground upon
which to rest his claim for attribution. The Seventh Circuit Court of Appeals
made short shrift of the legal concept:
What plaintiff in reality seeks is a change in the law in this
country to conform to that of certain other countries. We need not stop
to inquire whether such a change, if desirable, is a matter of the legislative
or judicial branch of the government; in any event, we are not disposed
to make any new law in this respect. n26
When Granz sued Harris he was on much firmer legal ground because the contract
stipulated that a master disc of jazz performances was to bear the legend
"Presented by Norman Granz." The defendant recorded the musical
content and affixed the required legend but deleted eight minutes from the
performance. Said the Court,
Disregarding for the moment the terms of the contract, we think
that the purchaser of the master discs could lawfullyuse them to produce
the abbreviated records and could lawfully sell the same provided he did
not describe it as a recording of the music presented by plaintiff. If he
did so describe it, he would commit the tort of unfair competition. But
the contract required the defendant to use the legend "Presented by
Norman Granz". . . . This contractual duty carries by implication,
without necessity of an express prohibition, the duty not to sell records
which make the required legend a false representation. n27
These cases indicate that when there is no contractual duty to attribute
authorship, the purchaser is free to modify the work. The obligation to
present the work intact arises as a result of a contractual duty to attribute
credit, which by implication requires that it accurately reflect the author's
creation lest the label be an actionable misrepresentation. The work's integrity
thus is protected at one and the same time as the paternity right.
The lesson to be drawn from Vargas and Granz is that private contractual
agreement should be drafted to provide what the law may not.
This lesson is emphasized by another New York case which held that, while
American courts sometimes recognize "a right analogous to moral right,'"
when there is a contract of publication, "plaintiff's so-called moral
right' is controlled by the law of contract." n28
Thus a claim for violation of an author's moral right by mutilation of his
manuscript was dismissed for its "failure to allege a breach of a duty
distinct and apart from a breach of contract." n29
Though unquestionably sound, the contractual approach is not failsafe. When
the artistic work is the subject of a contract, as invariably it is when
derivative rights are granted, the private law constituted between the parties,
like the terms of any agreement, ultimately may be subject to a court's
construction of those terms if litigation arises. If the language is ambiguous,
different presumptions may apply with concomitant different results. The
Second Circuit Court of Appeals has favored the grantee, holding in Bartsch
v. Metro-Goldwyn-Mayer Inc., that "the burden of framing and negotiating
an exception should fall on the grantor";
n30 the Ninth Circuit Court has favored the
creator because, according to the view it expressed in Warner Bros. Pictures,
Inc. v. Columbia Broadcasting System, Inc., "[the] clearest language
is necessary to divest the author of the fruits of his labor." n31
In Preminger v. Columbia Pictures Corp., n32
film director Otto Preminger sought an injunction to stop Columbia Pictures
from exhibiting an edited version of "Anatomy of a Murder" on
television, claiming damage to his reputation and to the artistic merit
of the film. Preminger had reserved the right to cut and edit the film in
his contract but the court held the reservation general in application and
superseded by a clause specifically granting Columbia the right to exhibit
the film on television, in which clause Preminger had made no reservation
as to cutting and editing rights. The court ruled that by giving Columbia
the "television rights," he had impliedly granted what by custom
and usage in the industry was understood to be meant by "television
rights," that is, the privilege to cut and edit for commercials and
time constraints. Thus, a contract is subject not only to legal presumptions,
but also to the weight given "the custom prevailing in the trade to
which it refers." n33
The case was decided in New York and though no reference was made to Bartsch,
its principle was followed: "The plaintiffs . . . could have obviated
this problem by specifically prohibiting such cuts or interruptions by contract."
n34 In dictum,
however, the court conceded that had the one hundred sixty one minute film
been cut to fifty three or even a hundred minutes, it would have granted
injunctive relief against such mutilation. Ten years later, the Gilliam
court did just that. In this respect, the two cases are consistent, but
whereas the court in Gilliam interpreted factual issues favorably for the
plaintiff, the Preminger court construed a contract, reasonably susceptible
of another translation, against the plaintiff. At the appellate level, n35 Judge Rabin
severely criticized the court's construction, but his was a dissenting opinion.
For the unknown, commercially-untested artist having little or no bargaining
power, insistence on contractual integrity rights may result in the loss
of the contract and a prolonged stay in obscurity. In the absence of contract,
relief may be available under other theories, provided that the artist's
moral right interest coincides with his economic interest. Success, of course,
depends on the facts of the plaintiff's case being conformable to the requisite
elements of a cause of action.
A cause of action in defamation to protect artistic integrity raises the
factual question of whether the reputation of the artist has been defamed.
A prerequisite is artistic reputation sufficiently established to be defamed.
Under certain circumstances a suit in defamation will require the court
to cast itself in the role of artistic arbiter, a role it understandably
may be reluctant to assume. n36
However, in Clevenger v. Baker, Voorhis & Co. n37
the court was called upon not to pass artistic judgment, but merely to determine
the accuracy of a legal treatise published by the defendant who had attributed
authorship wrongfully to the plaintiff, a highly-respected lawyer and legal
writer. The work in question contained over two hundred errors. The court
held that the plaintiff had been defamed. The case illustrates the vindication
of an aspect of the right of paternity -- the right not to have one's name
attributed to the work of another.
In Seroff v. Simon & Schuster, Inc., n38
the author had transferred translation rights to his work to defendant who
in turn had sold the right to a French publishing house. When the work came
out in the French translation, Seroff sued, alleging that it was a "flagrant
falsification" of his serious, scholarly biography of Rachmaninoff
and that the association of his name with the translation was a defamation.
Judge Geller made the eloquent statement: "The court appreciates that
the failure of the community, years ago, to protect their gifted men of
letters led to tragedies which comprise scars in the history of civilization."
n39 He agreed
that the alterations made in the translation were sufficiently substantial
to warrant relief. Unfortunately, Seroff had not sued the party responsible
for the distortion; the defendant, the court held, had discharged all its
contractual obligations by selecting a reputable French publisher. (It is
assumed that Seroff could not obtain jurisdiction over the French publisher
in an American court.) There seems to be little doubt that he would have
been awarded relief in a French court, if he had taken his case directly
In Geisel v. Poynter Products, Inc., n40
Geisel, better known as Dr. Seuss, claimed that dolls created from his cartoons
were of inferior design and therefore defamatory. The court looked to the
degree of time and care used to execute the derivative work and found no
In defamation cases and those claiming mutilation, the degree in quality
and quantity to which the offending work must depart from the original in
order to warrant relief is problematic. For example, if in the Seroff case,
assuming arguendo that the proper defendant had been brought to court, the
translator had "improved" the underlying biography by making the
French version more scholarly, an action in defamation could not then have
reached such an alteration; yet clearly it would have intruded on the integrity
of the work of the artist as he had conceived and executed it, just as surely
as an offensive translation.
Because of the formal elements required to plead it, the libel form of defamation
has little applicability in the area of moral right and virtually none for
visual, tactile and usical works. While the Clevenger and Seroff cases
were brought on a libel theory, the courts characterized the tort as defamation,
using the terms interchangeably. In the Edison case, involving mutilation
of an article and publication under the author's name, the court required
specification in the pleading of each libelous passage and how it
defamed him or injured his reputation. n41
3. Right of Privacy
In Williams v. Weisser n42
the defendant published and sold the class lectures of a UCLA professor
of anthropology without his permission. The professor sued for infringement
of his common law copyright and invasion of privacy. The court granted injunctive
relief on both grounds. What was protected is analogous to the civil law
right of disclosure.
The privacy right is useful -- but only before the work is published with
the author's consent. Its protection extends only to the author's own name;
unlike droit moral, it has no applicability to pseudonyms. n43
4. Right of Publicity
The interest protected by the right of publicity "is the interest of
the individual in the exclusive use of his own identity, insofar as it is
represented by his name and likeness." n44
Its rationale is the prevention of "unjust enrichment by the theft
of goodwill." n45
Performing artists are the primary beneficiaries of the right of publicity.
If the right turns out to be descendible, which is unclear at this point,
n46 it will provide
some legal recourse to protect paternity rights beyond the lifetime of the
artist, thereby breaching some of the distance between the civil law principle
of moral right and the American so-called analogs.
The extent to which the developing right of publicity ultimately will overlap
the interests protected by moral right is not yet clear; the latter is concerned
with a created product and its author in relationship to it, whereas the
former, at least in theory, focusses on the exploitation value of the name
or likeness of an individual without regard to any particular work. That
there is an overlap already has been shown in the Zacchini v. Scripps-Howard
Broadcasting Co. n47
case in which the court protected a human cannonball's entire performance
-- fifteen seconds in duration -- from being exploited on a televised news
broadcast. The utility of the right of publicity as a means to redress moral
injuries has potential for those with a modicum of fame, but it remains
to be explored and developed.
One commentator n48
has suggested that the doctrine of waste, drawn from property law, might
be available, on the theory that since a transfer of copyright is subject
to a termination right, the future residuary interest of the creator is
legally protectible against waste by the grantee. At best, this remains
a possibility to be explored, possibly as a result of some litigant's desperation.
Underlying one branch of the common law tort of unfair competition is the
equitable principle that one is not "to reap where he has not sown."
n49 Though not
universally accepted, the doctrine is suited to the artist whose work is
or presented to the public under his name but in a distorted version. Although
in Granz v. Harris n51
the plaintiff sued in contract, it was, in effect, on principles against
unfair competition that relief was granted.
Section 43(a) as a Guardian of Moral Rights
Section 43(a) of the Lanham Act, n52
"the federal counterpart of state unfair competition laws," n53 prohibits "false
designation of origin" and "false description or representation"
"in connection with any goods or services . . ." and confers a
private federal cause of action n54
on "any person who believes that he is or is likely to be damaged"
by a false designation, description or representation "in commerce."
Perhaps it is because the Section is housed in a trademark statute that
its potential scope went nearly undiscovered and untested for a considerable
number of years after its enactment in 1946. Walter Derenberg in 1957 wrote
with prophetic insight of the first decade of Section 43(a)'s existence
as mere "prologue." n55
That the congressional intent was not limited to expanding the Act's protection
against trademark infringement, but also included the expansion of federal
protection against acts of unfair competition "even where no registered
trademark is concerned" n56
is now fully recognized by the courts. n57
By 1974, one commentator, in view of the expansive application of the Section,
questioned whether the statutory provision had not "outgrown its proper
But even in 1954 the Section was not entirely overlooked by artists. In
Autry v. Republic Productions, Inc., n59
the plaintiff raised the issue of the possible application of the Lanham
Act in an action for an injunction to restrain cutting and editing which
"could result in emasculating the motion pictures so that they would
no longer contain substantially the same motion and dynamic and dramatic
of the actor's performance. The court, in approving some editing for television,
expressly left open the question whether such extreme mutilation would be
actionable under Section 43(a). The case was heavily relied upon in Stevens
v. National Broadcasting Co. n61
in which the court protected the "mood, effect or continuity"
of the motion picture "A Place in the Sun" from material distortion
resulting from cutting for commercial inserts on television.
Section 43(a) received a more traditional application in Rich v. RCA Corp., n62 when defendant
released and distributed ten year old recordings made by the plaintiff while
under contract with it, under a cover bearing the singer's current photograph.
Rich had since adopted a new appearance and vocal style. The court held
that there was a likelihood of public deception and confusion sufficient
to support a Section 43(a) action and granted injunctive relief against
further irreparable injury to the plaintiff's reputation. In effect, the
holding afforded the singer protection somewhat akin to that which is obtained
by authors under the French doctrine of withdrawal. The songs had not been
altered nor was the name of the artist wrongfully attributed. Though the
work was his, what Rich objected to was having the recording perceived by
the public as his current artistic product. Because what was involved was
the kind of deceptive commercial packaging and labeling Section 43(a) has
remedied repeatedly, the decision conferred upon him a rough equivalent
of a moral right rarely or never sought in French courts. n63
Geisel v. Poynter, n64
demonstrates the relevance of copyright ownership (as distinguished from
authorship) in the context of a Lanham Act action. LIBERTY magazine had
licensed to defendant the right to create and manufacture dolls based on
the drawings by Geisel, also know as "Dr. Seuss," who had sold
his cartoons and his common law copyright thereto to the magazine. The court
had granted an injunction restraining Poynter from using a tag identifying
the dolls as coming "From the Wonderful World of Dr. Seuss" but
held that the revised label which read "Merry Menagerie based on Liberty
Magazine Illustrations by Dr. Seuss" did not warrant further injunctive
relief since "The Lanham Act does not prohibit a commercial rival's
truthfully denominating his goods a copy of a design in the public domain,
though he uses the name of the designer to do so." n65
While the defendant thus was prevented from broadly labeling its creations
as stemming from the "World of Dr. Seuss," in which Geisel held
copyright, nothing prevented Poynter from truthfully narrowing the claim
of the source of his dolls to those cartoons by Dr. Seuss in which the copyright
had been transferred to LIBERTY magazine. Since the name appeared on the
cartoons in the pages of the magazine, the court held that along with the
cartoons and the copyright, the magazine had acquired some claim to the
name "Dr. Seuss" and could, therefore, license its use to the
defendant. Having parted with his ownership of copyright, Geisel had parted
with his personal interest in those cartoons as well. Thus, it would seem,
the Lanham Act cannot confer rights to an author in derogation of the copyright
In Gilliam v. American Broadcasting Companies, Inc.,
n66 the court, in a landmark decision, openly
and explicitly confronted the Lanham Act with the moral right doctrine.
At issue was the right to artistic integrity.
Under an agreement between the British Broadcasting Company (BBC) and MONTY
PYTHON (an ensemble company of comedy writers and performers), the group
retained artistic control over its script; BBC acquired the right to record
the performance of the script by MONTY PYTHON and the right to license television
broadcasts of the program, once recorded, to overseas territories. The American
Broadcasting Company (ABC), a remote licensee in the chain of transfers,
deleted twenty seven percent of the original program in the course of a
television broadcast in the United States. Gilliam, a member of the group,
claimed that the editing contravened contractual provisions which reserved
the right to make alterations in the script to the writers.
According to the appellate court, the Court for the Southern District of
New York denied a preliminary injunction "in part because he [Judge
Lasker] was unsure of the ownership of the copyright in the recorded program." n67 The Court of
Appeals for the Second Circuit, speaking through Judge Lumbard, held that
the recorded program was "a dramatization of the script, and thus the
program was itself entitled to copyright protection" n68
as a derivative work. According to footnote 3 of the opinion, the script
was unpublished, and therefore, protected by common law copyright. n69 The finding that
MONTY PYTHON was the proprietor of the common law copyright in the underlying
script is the lynchpin of the case, for that ownership links the contractual
obligation running to Monty Python from the BBC through the intervening
licensees and finally to the defendant. Absent such ownership, the BBC
would have held the sole copyright in the program and, very possibly, the
right to authorize the program's mutilation.
n70 Once the court determined that the recorded
program was a derivative work authorized by contract, it followed that ABC
could acquire only those limited rights MONTY PYTHON had transferred to
BBC, since BBC could not give more than had been granted to it. Thus ABC
was bound to the reservation contained in the Python-BBC contract; having
violated the editing clause, it was in breach of the agreement.
The Court also stated that excessive cutting of the underlying script might
constitute a copyright infringement since a derivative use "may not
exceed the specific purpose for which permission was granted." n71 That seems to be
a curious mingling of copyright and contract concepts. Contracts for motion
picture adaptations of literary works often result in what only can be regarded
as "mutilation" of the underlying work -- rarely resulting in
claims of copyright infringement because the contracts presumably permit
such "adaptations." n72
Furthermore, Section 103 of the copyright statute is not concerned with
distortions and mutilation but merely with the scope of the grant, which
in this case permitted television broadcasting of the recorded performances
in overseas territories, which grant here was not exceeded.
After disposing of the contract and copyright issues, the Court turned its
attention to the Lanham Act, introducing it in the language of moral rights:
"This cause of action, which seeks redress for deformation of an artist's
work, finds its roots in the continental concept of droit moral, or moral
right, which may generally be summarized as including the right of the artist
to have his work attributed to him in the form in which he created it." n73 Citing Roeder, n74 the seminal
writer on moral rights, and Granz v. Harris,
n75 the Court declared that the Lanham Act
was particularly suited to defend artistic rights:
[A]n allegation that a defendant has presented to the public
"garbled," . . . distorted version of plaintiff's work seeks to
redress the very right sought to be protected by the Lanham Act . . . and
should be recognized as stating a cause of action under that statute. n76
While many Lanham Act cases speak of misleading "labeling" or
"packaging," of "passing off" or "reverse palming
off" and of "trademarks," the Gilliam decision is articulated
in the language of droit moral: "truncated version," "essential
elements in the schematic development of a story line," "impaired
. . . integrity," "a mere caricature," finally culminating
in "We believe that a valid cause of action for such distortions exists."
n77 Some commentators
n78 have hailed
the case as the American defender of droit moral. Others
n79 have counseled caution, pointing out that
the Lanham Act was designed as a trademark statute to combat false advertising
and not the violations of the integrity of artistic work, as was argued
by Judge Gurfein in separate opinion challenging this aspect of the case.
Still others n80
express great reservation regarding the precedential value of the holding
because the concerns of Section 43(a) and of droit moral are not similar
and seldom will the former function to protect the latter as in Gilliam.
One commentator asks,
Is a mutilation any less a mutilation because the author contracted
away his editorial right, as well as the right to exploit the author's name
and reputation, to a cretin? Is the public interest any different than it
was in this case? Should Section 43(a) -- and the protection of the public
interest -- be available only when an artist preserves to himself the right
to edit? n81
The criticism is especially well-taken, first because it underscores the
disparity between the inalienable, unwaivable, perpetual protection available
under the continental doctrine and the limited protection granted to personal
artistic rights in the United States; second, because it correctly recognizes
that the Lanham Act holding in Gilliam is bottomed on -- or at least coincided
with -- a contractual provision which linked the copyrighted underlying
script to the mutilated derivative work. Here Section 43(a) applied where
the work had been both mutilated and misrepresented as the artist's original
creation. A distortion unaccompanied by such a misrepresentation might not
be actionable. Even where actionable, the work might be permitted to continue
its misshapen existence provided that it was properly labeled as "edited."
Perhaps the case asks as many questions as it answers. n82
Whether a lesser degree of editing by ABC would have yeilded the same result
also is questionable, especially in view of Preminger v. Columbia Pictures n83 which found
no actionable mutilation resulting from the defendant's editing of plaintiff's
film to accommodate television commercials. n84
Judge Gurfein, concurring generally in the holding, was severely critical
of the application of a trademark statute in the field of copyright. The
Lanham Act, he states, "is not a substitute for droit moral . . ." n85 His thinking
seems likely to be representative of that of many judges.
Follett v. Arbor House Publishing Co. n86
was tried four years after Gilliam, and reflects some of the influence of
the earlier decision. Three Frenchmen, under the nom de plume Rene Louis
Maurice, wrote an account of a sixty million franc robbery in Nice carried
off by stylish thieves whose exploits captured the imagination of newspaper
readers around the world. Ken Follett, who had written several successful
suspense novels, edited an English translation, and agreed to an attribution
reading "Rene Louis Maurice with Ken Follett." Arbor House, which
acquired the United States publishing rights, proposed authorship attribution
reading "by the author of TRIPLE and EYE OF THE NEEDLE, KEN FOLLET
with Rene Louis Maurice." Only Follett's name would appear on the spine
of the jacket.
Follett sought to restrain Arbor House from using that authorship attribution,
claiming that naming him as the principal author constituted a false representation
and false designation in violation of Section 43(a). The action was sustained
because of the potential harm to Follett's reputation as a writer known
for the intricacy of his plots and characters as well as his "narrative
drive," which, the Court noted, stood in "striking contrast with
the comparatively flat, historical narrative tone"
n87 of the translation that, of necessity,
had been restrained by factual events and the characters of the original
version. The District Court ordered Arbor House to give equal attribution
to Rene Louis Maurice and to Ken Follett, in that chronological order. "The
Lanham Act," it stated, relying on Gilliam, "is designed not only
to vindicate the author's personal right to prevent the presentation of
his work to the public in a distorted form,' . . . but also to protect the
public and the artist from misrepresentations of the artist's contribution
to a finished work." n88
It is of particular interest to note that the Follett court's application
of Section 43(a) is almost entirely free of any residual trademark language,
focussing instead on the artist's personal right protectible under its provisions.
The Court went so far as to assert that "Even if an attribution of
authorship were consistent with industry practices, it would nevertheless
be illegal under the Lanham Act if it misrepresented the contribution of
the person designated as author." n89
That seems contrary to Preminger, which held the director bound to the custom
of the industry despite the authorship attribution of his name to an edited
version of his film on television. It seems likely, particularly in light
of the Gilliam decision, that a contractual grant will not be overriden
by the Lanham Act, despite the likelihood of public deception or confusion. n90
Of additional significance is the fact that unlike the Gilliam decision
which is bottomed on the financial losses which would result from the injury
inflicted on Monty Python's reputation, the Follett opinion does not articulate
any economic argument to justify its holding. In this respect, Follett recognizes
far more nearly the non-commercial, purely personal interest embraced by
the doctrine of droit moral than any other case to date.
Smith v. Montoro n91
was decided after Follett. By contractual agreement with an Italian film
company, plaintiff was to receive star billing for his screen performance
and any subsequent transfer of the film for distribution was to guarantee
the same right. When the film was distributed in the United States, Smith's
screen image and performance were attributed to someone named Spenser. The
Ninth Circuit Court of Appeals held that there had been an "express
reverse palming off" in that the defendant had removed Smith's name
and sold his product, namely his image and performance, under another's
name in violation of the Lanham Act. The reversion to classic trademark
vocabulary seems noteworthy. Perhaps the absence of the new language of
Section 43(a) applicable to artistic rights is explained by the fact that
recovery could be attained most successfully on the reverse palming off
Moral Rights Unprotectible in the United States
The theories reviewed above, even collectively, do not provide the scope
of personal protection that inures to artists under the continental doctrine
of droit moral. Conceding that the right of disclosure may be regarded as
subsumed in the author's exclusive right to reproduce under Section 106
of the Copyright Act, and that the right of withdrawal is of little utility,
and thus reducing the essential artistic protection to only the rights of
integrity and paternity incorporated in the Berne Convention, American law
still fails to provide redress for artistic, as distinguished from monetary,
injury to creators and their products. Three French cases illustrate the
existing gap between the civil law protection and the patchwork quilt of
causes of action available in this country.
The artist Bernard Buffet, in response to a charity drive, painted a refrigerator.
He considered the six sides of the appliance he had painted as constituting
a single work. The purchaser of the refrigerator later offered one of the
six panels for sale and Buffet brought legal action to prevent the work
from being sold in parts. The unitary integrity of the work was upheld by
the court. n92
In 1971 the granddaughter of the painter Henri Rousseau brought an action
against a department store in Paris which had used window displays of reproductions
of Rousseau's work in altered images and colors. The court protected the
integrity of Rousseau's work. n93
Rousseau had died in 1910. n94
Sudre, a sculptor, was commissioned by his native village to create a statue
for a public fountain. In time the statue required restoration, but the
city council decided instead to have it removed and its dismembered parts
ended up filling holes in the road. Sudre brought legal action and the court
awarded him damages. n95
None of these situations appear to be covered by any existing cause of action
in the United States. Property rights being paramount in this country, Buffet
probably could not have prevented the purchaser of the refrigerator from
disposing of it as he saw fit. A cause of action in defamation or misrepresentation
would likely have failed before the superior proprietary interest of the
owner of the painted appliance.
In the Rousseau case, the works in question were in the public domain. Duration
of copyright in France as in the United States is life plus fifty years.
Consequently, Rousseau's copyright protection lapsed in 1960, but his moral
right, being perpetual and descendible, continued in force and in the control
of his heirs. Nothing in American law parallels this kind of protection,
and it appears to be outside the ambit of any actionable theory. Even if
some viable cause of action existed, who would have legal standing to bring
such a suit in court? It is also worthwhile to point out that the injury
complained of was inflicted not on the original canvasses, but on their
reproductions. (In this respect, the reach of the continental protection
seems to go too far and indeed may stifle the creative inventiveness of
In the Sudre case, if the sculpture was a "work made for hire,"
the sculptor would not be the copyright owner and therefore would seem to
have no standing to assert a claim cognizable in an American court under
the given circumstances. If it was not, what legal theory would support
relief? Again, property rights would presumably prevail against the artist's
countervailing but inferior interests.
A Rationale for Protecting Moral Rights Under Current United States Laws
United States law enforces contract rights and property rights. Since moral
rights, as such, are not recognized, it is in contract and property law
that the artist is most apt to find the seeds of legal protection.
Contracts create private laws custom-fitted to the needs of the parties.
The contract, therefore, is the first line of defense for the artist in
two respects: he must examine closely the rights he is yielding by contract,
since they almost surely will be enforced against him; he also must preserve
rights lest his silence result in the loss of paternity right (Vargas),
be construed as acquiescense to trade custom (Preminger), or as a conveyance
of rights not specifically retained (Bartsch).
Failing to protect himself by contract, the artist is most likely to succeed
by framing his claim as one for the protection of property -- the intangible
property of his reputation. To support such a property claim, the picture
of the artist qua artist must be superseded by that of the artist as businessman,
which in part is what he is. The nineteenth century picture of the starving
painter in his Paris garret has persisted to this day and this romantic
notion to some extent probably is responsible for creating a gap between
businessmen and artists that is deeper than is justified by their respective
interests. The artist, like the merchant, wishes to sell his products in
the market place and be well-paid for them. The value of his work usually
increases as his reputation rises and his reputation generally rises by
virtue of the quality or popularity of this work. Thus, the artist's reputation
is often largely determinative of the price his work will command. Indeed,
in our society where labels are worn outwardly as status symbols, examples
of works whose primary apparent value, commercial or otherwise, is their
creator's reputation are not impossible to find. It is this uniquely personal
property -- his reputation -- that the artist is most likely to succeed
in protecting. If reputation can be shown to be endangered, economic damages
virtually can be presumed. In such cases, Section 43(a) may be invoked with
likely success because in these instances the principles underlying unfair
competition and droit moral produce congruent results.
Of the four rights encompassed by the continental doctrine, two are generally
regarded as essential and inadequately protected by United States law: the
three-headed right of paternity and the right of integrity.
The Right of Paternity
(1) The right of the author to have his creation attributed to him (rather
than to no one) is by far the most difficult to fit into existing American
legal theory. Perhaps the best argument is to be found by analogy to Sigmond
v. Goldstone, n96
a personal service case in which the court found that payment of a salary
alone in return for no work at all was not sufficient performance of an
employment contract where the employer did not permit the employee to practice
his trade. Preventing an employee from developing his craft, the court held,
deprived him of earning a reputation as a skilled worker and thereby prevented
him from commanding higher wages in the future. Similarly, if the output
of the artist is circulated anonymously, his reputation suffers, not in
a defamatory sense, of course, but in an economic sense, for he is prevented
from establishing a reputation for skill and a market for his work. Of course,
this argument would not prevail, if it could at all, where the artist has
expressly contracted away his right to credit. (2) The right of the author
to prevent his name from being attached to the work of another is protectible
on a theory of misrepresentation, possibly as a violation of the publicity
right, and under certain factual circumstances, by defamation laws. (3)
The right of the creator to prevent his work from being attributed to others
presents little problem. The false representation can be reached, as it
was in Smith v. Montoro, on a theory of reverse palming off.
The Right of Integrity
It would be inaccurate to think of this branch of droit moral in an immutable
fashion. Art takes many forms, some of which comprise huge collective efforts.
In such instances, to grant supremacy to an individual contributor would
retard the development of the arts -- and undoubtedly bring financial ruin
to producers. Creators of collaborative works must be considered separately
since the protection of a single canvas clearly cannot be identical to that
of cinematographic or theatrical productions that come alive only by dint
of the creative efforts of large numbers of contributors. Contracts delineate
the rights of the members of such enterprises and bind them together.
Licensees of derivative rights also require special accommodations. They
modify or adapt materials for transfer to new media. The amount of alteration
will vary depending on how radically different the proposed use is from
the original. Adapting an opera or a musical from a novel will require major
modifications; editing a film for the home screen very little. If in the
course of a film adaptation a mutilation of the work should result in possible
damage to the artist's reputation, the artist is unlikely to succeed in
court unless his contract expressly reserved to him the exclusive right
of revision, as the Preminger and Monty Python cases illustrate.
The question of artistic integrity presents itself most neatly when the
work of a single artist is dishonored. Once complete ownership of a work
of art is acquired by a purchaser, property rights will prevail over the
author's interest in safeguarding the integrity of his work. So it was when
the noted American sculptor, David Smith, sold one of his metal sculptures
to a buyer who gave the work a few coats of red paint and afterward offered
it for resale. n97
In such circumstances, how does one balance the purchaser's interest in
his property against posterity's right to its cultural heritage? The latter
is beginning to gain some recognition in California and through legislative
enactments of landmark preservation laws (challenged by claims of the taking
To protect only the commercial character of artistic creations is to admit
that there is no legal distinction between MOBY DICK and a can of sardines
worth recognizing. Collectively, the theories presently available upon which
creators may rest their claims for relief form a tattered shield against
violations of artistic products and reputations. The availability and effectiveness
of such theories are further restricted by factual circumstances -- often
a matter of chance (or inability to afford sophisticated legal planning
or insufficient leverage to negotiate favorable contracts) -- which give
rise to the author's complaint.
Ironically, it is not under the Copyright Act, authorized by the Constitutional
mandate to promote the useful arts, but under the trademark law, enacted
to prevent unfair commercial competition, that the courts have given the
broadest effect, and even explicit recognition, to the doctrine of moral
right. Whether articulated in trademark language or formulated in the terminology
of droit moral, Section 43(a) of the Lanham Act has proved itself an elastic
statute, useful in protecting integrity and paternity rights of authors,
artists and other creators. The sweeping concept of unfair competition which
underlies it makes it a vehicle far broader, far more adaptable and comprehensive
than theories such as defamation, libel, privacy, publicity or waste. Because
of its dual regard for both the plaintiff and the consumer, it is especially
adaptable to protect the public interest in the nation's cultural heritage.
Still, the Lanham Act does not furnish the scope of personal protection
of droit moral. It probably cannot reach a mutilation wrought on an artistic
property privately held since no public deception is involved; it perhaps
cannot protect the creator once he has transferred copyright ownership to
another; it seemingly cannot reach a distortion unaccompanied by at least
implicit misrepresentation; it almost surely cannot supersede a contractual
transfer of editing rights. But until and unless the United States enacts
its own version of a moral right bill, Section 43(a), especially as expanded
by Gilliam and carried forward by Follett, is quite possibly the American
artist's strongest, most viable legal armor.
n1 17 USC @@ 101
et seq (1976).
n2 Id @ 102.
n3 Id @ 106.
n4 Clemens v. Press
Publishing Co., 67 Misc 183, 184 (Sup Ct App Tm 1910) (Seabury, J., concurring).
n5 Comment, Toward
Artistic Integrity: Implementing Moral Right Through Extention of Existing
American Legal Doctrines, 60 Geo LJ 1539, 1542 (June 1972) [hereinafter
cited as Toward Artistic Integrity].
n6 United States
Constitution, Art I, Sec 8, Cl 8.
n7 Raymond Sarraute,
Current Theory on the Moral Right of Authors and Artists Under French Law,
16 Am J Comp L 465 (1968).
NOTE 8 NOT AVAILABLE ON LEXIS
n9 R. J. DaSilva,
Droit Moral and the Amoral Copyright: A Comparison of Artists' Rights in
France and the United States, 28 Bull Cr Soc 1, 15 (October, 1980). The
article offers a thorough discussion of the characteristics of droit moral
n10 See Sarraute,
supra note 7 at 468.
n11 Id at 477.
n12 Article I
of the 1957 Statute, Sarraute, supra note 7 at 479.
the doctrine of inalienability conflicts with freedom to contract. Some
French courts do enforce contract clauses in which an artist has renounced
or assigned his droit moral. See DeSilva, supra note 9 at 16. Furthermore,
the French statute creates exceptions to the right of integrity in order
to accommodate collaborative works such as films. In such cases, individual
prerogatives are largely relinquished in exchange for a commonly held right.
See Sarraute, supra note 7 at 473.
n14 See Vargas
v. Esquire, Inc., 164 F2d 522, 75 USPQ 304 (CA 7 1947),
Shostakovich v. Twentieth Century-Fox Film Corp., 196 Misc 67, 80 NYS2d
USPQ 647 (NY Sup Ct NY Cty 1949) and Gilliam v. American Broadcasting Companies,Inc.,
538 F2d 14, 24, 192 USPQ 1 (CA 2 1976).
n15 Though there
appear to be no cases under it yet, Calif Civ Code @ 987 may give rise to
exceptions to this statement. Taking effect January 1, 1980, the statute
specifically recognizes "that the physical alteration or destruction
of fine art [defined as an original painting, sculpture, or drawing of recognized
quality' not prepared under contract for commercial use by its purchaser'],
which is an expression of the artist's personality, is detrimental to the
artist's reputation, and artists therefore have an interest in protecting
their works of fine art against such alteration or destruction; and that
there is also a public interest in preserving the integrity of cultural
and artistic creations." The act sets forth a scheme of prohibitions
and remedies for such alteration or destruction. The act, obviously, is
limited in subject matter and geographic scope. For a discussion of the
possible federal preemption issue with respect to this statute, see G. L.
Francione, California Art Preservation Act and Federal Preemption by the
1978 Copyright Act -- Equivalence and Actual Conflict, 18 Calif Western
L Rev 189 (Winter, 1982).
n16 Granz v.
Harris, 198 F2d 585, 590 (CA 2 1952) (Frank, J., concurring). See also Sidney
A. Diamond, Legal Protection for the "Moral Rights" of Authors
and Other Creators, 68 TMR 244 (1978) and James M. Treece, American Law
Analogues of the Author's "Moral Right," 16 Am J Comp L 487, 505
(1968) (" . . . The phrase moral right' is the wrong phrase for heralding
American law developments.").
n17 See supra
n18 Id 80 NYS2d
at 579, 77 USPQ at 649.
n19 See Mitchell
Brothers Film Group v. Cinema Adult Theater, 604 F2d 852, 203 USPQ 1041
(CA 5 1979) in which the Court held that the copyright statute is "facially
all-inclusive" and that obscenity is not a bar to copyrightability.
n20 W. L. Prosser,
Law of Torts at p 802 (4th ed 1971).
n21 Id at 804.
n22 See DaSilva,
supra note 9; Diamond, supra note 16; John Henry Merryman, The Refrigerator
of Bernard Buffet, 27 Hast LJ 1023 (May 1976); Martin A. Roeder, The Doctrine
of Moral Right: A Study in the Law of Artists, Authors and Creators, 53
Harv L Rev 554 (1940); Susan L. Solomon, Monty Python and the Lanham Act:
In Search of the Moral Right, 30 Rutgers L Rev 452 (Winter, 1977); Treece,
supra note 16; Toward Artistic Integrity, supra note 5; Comments, Moral
Rights for Artists Under the Lanham Act: Gilliam v. American Broadcasting
Cos., 18 Wm & Mary L Rev 595 (Spring, 1977) [hereinafter cited as Moral
Rights]; Comment, Protection of Artistic Integrity: Gilliam v. American
Broadcasting Companies, 90 Harv L Rev 473 (December, 1976) [hereinafter
cited as Protection of Artistic Integrity]; Comment, An Author's Artistic
Reputation Under the Copyright Act of 1976, 92 Harv L Rev 1490 (May, 1979).
n23 See supra
note 4 at 184.
n24 Supra note
n25 Supra note
n26 Supra note
14 at 526, 75 USPQ at 304.
n27 Supra note
16 at 588.
n28 Edison v.
Viva International Ltd., 421 NYS2d 203, 206, 209 USPQ 345, 347 (NY Sup Ct
n30 391 F2d 150,
155, 157 USPQ 65, 68 (CA 2 1968), cert denied 393 US 826, 159 USPQ 798 (1968).
n31 216 F2d 945,
949, 104 USPQ 103, 106 (CA 9 1954), cert denied 348 US 971, 105 USPQ 518
(1955), quoting from Philip v. Jerome H. Remick & Co., unpublished decision,
op no 9,999 (SDNY 1936).
n32 267 NYS2d
594, 148 USPQ 398 (NY Sup Ct 1966), affd 25 app Div2d 830, 269 NYS2d 913,
149 USPQ 872 (NY App Div 1966), affd 18 NY2d 659 USPQ 829 (NY Ct App 1966).
n33 Id at 599,
148 USPQ at 400; see also Edison, supra note 28.
n34 Id at 603,
148 USPQ at 402.
n35 Supra note
n36 See Lahr
v. Adell Chemical Co., Inc., 300 F2d 256, 132 USPQ 662 (CA 1 1962), but
relief was granted on unfair competition grounds in a species of publicity
n37 8 NY2d 187,
168 NE2d 643, 203 NYS2d 812, 126 USPQ 420 (NY Ct App 1960).
n38 162 NYS2d
770, 6 Misc2d 383, 113 USPQ 388 (NY Sup Ct 1957).
n39 Id at 774,
113 USPQ at 390.
n40 259 F Supp
331, 160 USPQ 590 (SDNY 1968).
n41 Supra note
28 at 207, 209 USPQ 345.
n42 18 Cal Rptr
542, 163 USPQ 42 (Calif Dt Ct App 1969).
n43 See Geisel
v. Poynter, supra note 40.
2nd Torts, Section 652(2) (1962).
v. Scripps-Howard Broadcasting Co., 433 US 562, 576, 205 USPQ 741, 748 (1977),
quoting from Harry Kalven, Jr., Privacy in Tort Law -- Were Warren and Brandeis
Wrong?, 31 Law & Contemp Prob 326, 331 (Spring, 1966).
n46 See Gary
M. Ropski, Further Comments on the Development of the Right of Publicity
-- A Matter of Life, Death, and Sometimes the First Amendment, infra
t p 278.
n47 See supra
n48 See Toward
Artistic Integrity, supra note 5 at 1550.
News Service v. Associated Press, 248 US 215 (1918).
n50 See Prouty
v. National Broadcasting Co., 26 F Supp 265, 40 USPQ 331 (D Mass 1939) in
which the court granted relief on unfair competition grounds against defendant's
misappropriation of the title and personality of "Stella Dallas"
created by plaintiff, despite absence of the element of competition between
plaintiff and defendant.
n51 Supra note
n52 15 USC @
n53 Gilliam v.
American Broadcasting Companies, Inc., supra note 14 at 24, 192 USPQ at
n54 See L'Aiglon
Apparel Inc. v. Lana Lobell, Inc., 214 F2d 649, 102 USPQ 94 (CA 3 1954).
n55 Walter J.
Derenberg, Federal Unfair Competition Law at the End of the First Decade
of the Lanham Act: Prologue or Epilogue?, Trademarks in Action Conference,
John Marshall Law School, 1957, reprinted in 32 NYU L Rev 1029, 1031 (1957).
n56 Gilliam v.
ABC, supra note 14 at 24, 192 USPQ 1.
n57 See Alfred
Dunhill Ltd. v. Interstate Cigar Co. Inc., 499 F2d 232, 183 USPQ 193 (CA
n58 Kenneth B.
Germain, Unfair Trade Practices Under Section 43(a) of the Lanham Act: You've
Come a Long Way, Baby -- Too Far, Maybe?, 64 TMR 193 (1974).
n59 213 F2d 667,
101 USPQ 478 (CA 9 1954), cert denied 348 US 858, 103 USPQ 424 (1954).
n60 Id at 669,
101 USPQ at 479.
n61 148 USPQ
755 (Calif Super Ct LA Co 1966).
n62 390 F Supp
530, 185 USPQ 508 (SDNY 1975).
n63 See Sarraute,
supra note 7 at 477. The analogy is rough because no true right of "withdrawal"
was sought; the recordings still could be sold as long as their age was
disclosed to the public.
n64 Supra note
n65 Id at 351,
160 USPQ 606, quoting Societe Comptoir De L'Industrie Etablissements Boussac
v. Alexander's Department Stores, Inc., 299 F2d 33, 36, 132 USPQ 475, 576-77
(CA 2 1962).
n66 Supra note
n67 Id at 19,
192 USPQ at 5.
n68 Id at 19-20,
192 USPQ at 5 (footnote omitted).
n69 Id at 19-20,
192 USPQ at 5.
n70 Neither the
BBC nor Time-Life, from which ABC had acquired the broadcasting rights,
was a party to the action.
n71 Supra note
14 at 20, USPQ at 5.
n72 See Burroughs
v. Metro-Goldwyn-Mayer, Inc., 683 F2d 610, 215 USPQ 495 (CA 2 1982) which
reached such a result when the heirs of the author of Tarzan sought to enjoin
the recent production featuring Bo Derek in the nude; compare with Edgar
Rice Burroughs, Inc. v. Mann's Theatres, 195 USPQ 159 (CD Calif 1976), in
which an unauthorized, "X-rated" motion picture apparently derived
from the same properties was enjoined.
n73 Supra note
14 at 24, 192 USPQ at 8.
n74 See supra
n75 See supra
n76 Supra note
14 at 24-25, 192 USPQ at 9.
n77 Id at 25,
192 USPQ at 9.
n78 See Robert
P. LoBue, The Monty Python Litigation -- of Moral Right and the Lanham Act,
125 U Pa L Rev 611 (January, 1977); Janet Maslow, Droit Moral and Sections
43(a) and 44(i) of the Lanham Act -- A Judicial Shell Game?, 48 Geo Wash
L Rev 377, 387 (1980).
of Artistic Integrity, supra note 22; Dawn R. Duven, The Present Scope of
Recovery for Unfair Competition Violations Under Section 43(a) of the Lanham
Act, 58 Neb L Rev 159, 170 (1978); Moral Rights, supra note 22 at 610.
n80 Annual Review
Committee, The Thirteith Year of Administration of the Lanham Trademark
Act of 1946, 67 TMR 171 (1977); Diamond, supra note 16 at 268.
n81 Id at 567.
n82 For example:
would "edited" be sufficient to disclose the scope of the mutilation?
Would this, under conventional Section 43(a) principles turn on public understanding
of the meaning of the phrase? Would attribution of the mutilated work to
some nom de plume such as the "British Repertory Players" have
saved the day by avoiding the misrepresentation that it was Monty Python's
work? What if instead it had originally been the work of such an instantly
recognizable personality as Bob Hope?
n83 Supra note
n84 See Diamond,
supra note 16.
n85 Gilliam v.
ABC, supra note 14 at 27, 192 USPQ at 11.
n86 497 F Supp
304, 208 USPQ 597 (SDNY 1980).
n87 Id at 309,
208 USPQ at 601.
n88 Id at 313,
208 USPQ at 604.
n89 Id at 311,
208 USPQ at 603.
the licensee may, by contract, distort the recorded work, the Lanham Act
does not come into play." Gilliam v. ABC, supra note 14 at 27, 192
USPQ at 11 (Gurfein, J., concurring).
n91 648 F2d 602,
211 USPQ 775 (CA 9 1981).
n92 Buffet v.
Fersing (France, 1962), Merryman, supra note 22 at 1023 fn 1.
v. Soc. des Galeries Lafayette (France, 1973), Merryman, id at 1030 fn 22.
n94 Petit Larousse
at 1661 (Paris, Librairie Larousse, 1966).
n95 Sudre v.
Commune de Baixas (France, 1936), Merryman, supra note 22 at 1034 fn 34.
n96 101 NYS 934
n97 See Diamond,
supra note 16 at 257.