Copyright (c) 1983, The International Trademark Association, The Trademark Reporter

May, 1983 - June, 1983

73 TMR 251


Flore Krigsman *

* LLM, New York University School of Law, 1982. Copyright (C) Flore Krigsman
1982, 1983.

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 law.

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 Convention.

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 metalegal," n16 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 it encompasses.

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. n20

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.

1. Contracts

Not all courts have been indifferent to the unique properties of artistic creation:

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. n23

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.

2. Defamation

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 to it.

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 defamation.

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.

5. Misappropriation

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 misappropriated n50 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 bounds." n58

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 qualities" n60 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 proprietor.

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 theory.

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 subsequent generations.)

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 of property).


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).


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 in France.

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.

n13 Obviously, 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 575, 77
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 note 14.

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 14.

n25 Supra note 16.

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 1979).

n29 Ibid.

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 32.

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 right.

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.

n44 Restatement 2nd Torts, Section 652(2) (1962).

n45 Zacchini 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 note 45.

n48 See Toward Artistic Integrity, supra note 5 at 1550.

n49 International 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 16.

n52 15 USC @ 1125(a).

n53 Gilliam v. American Broadcasting Companies, Inc., supra note 14 at 24, 192 USPQ at 9.

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 2 1974).

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 40.

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 14.

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 note 22.

n75 See supra note 16.

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).

n79 Protection 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 32.

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.

n90 "If 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.

n93 Bernard-Rousseau 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 (1906).

n97 See Diamond, supra note 16 at 257.