[Community] Tre esempi per capire un poco...

[Nicola A. Grossi]

... cosa può accadere nella "produzione globalizzata".


Saluti,
n.a.g.


*Attribution example*

A German works with a Canadian and a US
citizen on an informational article for an online
German-based European publication. Since the
work is aimed at a broad international audience
(including Americans), the language is English,
and the US author takes the lead in crafting the
final product, which consists of specific sections
from each person. The Canadian writes a small
and essentially factual portion (roughly onesixth).
The German writes twice as much
(roughly one-third), and the US author writes
about half of the total. When the final draft is
ready, the US author assumes sole authorship.
He did most of the work and reasons that the
others were mainly supplying information, for
which he thanks them heartily in the text. The
Canadian agrees. No money is involved. His
work was minimal. Giving up any claim to
authorship seems like a small way of thanking
the person without whom the article would
never have appeared. The German, however,
claims a violation of his moral right of
attribution.
Under German law, the German author has a
reasonable complaint. He sent a section of text,
which was his expression of the information he
was providing. The information had not been
published elsewhere and essentially only made
sense within the context of the whole article (an
important point). German law allows for both
horizontal and vertical co-authorship. (Schulze,
1988, p. 64) That is, a co-author can contribute
to the whole or to particular parts. German law
also protects the moral right of a co-author to
having his name on the work. It does not matter
whether one of the other authors did more of
the work or wrote a larger section of the article.
The right of attribution is clear and inalienable
- it cannot be transferred to someone else,
either by written assignment as economic rights
can be, or by implicit consent. The author need
not assert the right if he decides that future
collaboration would make it better not to. But if
he asserts it, the right is plain.
For the US author, this is not really a
copyright issue at all. US law has no moral
rights statute for moral rights in text-based
materials. The only US moral rights legislation
is the Visual Artists Rights Bill, which can be
found in Title 17 of the United States Code,
section 106A (17 USC 106A), and which limits
moral rights to ''the author of a work of visual
art'' (17 USC 106a). When the US joined
Berne, the Congress claimed that the common
law of misrepresentations and unfair
competition, and the Lanham Act (15 USC
1125 (a)(1)(A)) contained ''rights equivalent to
moral rights of authors'' (Standler, 1998). As a
practical matter, neither seems to apply to this
kind of situation, which is not deliberate
misrepresentation but inadvertent
misunderstanding. US copyright law is silent
about attribution requirements for text-based
materials. Its focus is on the economic issues,
and in this case, there are none.
The Canadian law more resembles the
European, but is distinctly laconic:
14.1 (1) The author of a work has, subject to
section 28.2, the right to the integrity of the work
and, in connection with an act mentioned in
section 3, the right, where reasonable in the
circumstances, to be associated with the work as its
author by name or under a pseudonym and the
right to remain anonymous (Canada, Department
of Justice, 2001).
Although the right of attribution exists, it seems
strongly hedged by the qualifying phrase
''reasonable in the circumstances''. It is not
hard to understand that the Canadian author
might well find this to be case where it is not
reasonable to insist.


*Integrity example*

A German artist cooperates with a digital library
project run from a US university. The artist
accepts a six-month salary (with benefits) in
order to create five digital paintings on special
large, flat-screen monitors. She uses a very
deliberate choice of colors and shades of colors
to create a particular feeling - the specialty on
which she feels her reputation rests. The digital
library project mounts the digital paintings in a
physical gallery but the monitors that it uses
have different color balances than the original.
When the artist sees the works, she is horrified
that the colors are wrong, and claims that these
damage the integrity of her work. She asserts
her moral right to have them withdrawn.
In this case, US moral rights statutes could
apply under two clauses:
Subject to section 107 and independent of the
exclusive rights provided in section 106, the author
of a work of visual art - . . . (2) shall have the right
to prevent the use of his or her name as the author
of the work of visual art in the event of a distortion,
mutilation, or other modification of the work
which would be prejudicial to his or her honor or
reputation; and (3) subject to the limitations set
forth in section 113(d), shall have the right - (A) to
prevent any intentional distortion, mutilation, or
other modification of that work which would be
prejudicial to his or her honor or reputation, and
any intentional distortion, mutilation, or
modification of that work is a violation of that right
. . . 17 USC 106A).
Even though this is a digital work, it seems
reasonable to assume that it is a work of visual
art underUS law. The more difficult question is
whether the color problem represents a
distortion, mutilation, or other modification
that is prejudicial to honor and reputation. It is
important to realize that this is not a question
about whether the color settings on computer
monitors harms economic worth, but whether it
harms reputation. In the event of an actual
lawsuit, a panel of peers might advise the court,
and could well favor their fellow artist. The
legal issue might, however, be whether the
damage were ''result of the passage of time or
the inherent nature of the materials'' (17 USC
106A(c)) In that case, the situation would not
represent a distortion, mutilation, or
modification, and moral rights would not be
affected.
Thus far the artist could win. But a more
uniquely American problem is whether the
digital paintings represent works-for-hire.
Work-for-hire is a well-established part of
Anglo-US copyright law, and is allowed under
the Berne Convention. In the US an artist does
not own the moral rights to a work created in a
work-for-hire arrangement, something which
would be impossible under German law, where
copyrights must belong to ''a natural person, a
human, not a corporation, a society, a state or
other form of legal being'' (Schulze, 1998,
p. 61)
In US case law, the so-called ''Reid Factors''
have been used to determine work-for-hire
status. These include:
. . . the hiring party's right to control the manner
and means by which the work is produced; the skill
required to accomplish the work; the source, or
owner, of the tools and instrumentalities used to
produce the work; the location of the work; the
duration of the relationship between parties; the
right of the hiring party of assign additional
projects to the hired party; the extent of discretion
the hired party has over when and how long she
works; the method of payment, the hired party's
role in hiring and paying assistants; whether the
work is part of regular business of the hiring party;
whether the hiring party is in business; the
provision of employee benefits; and the tax
treatment of the hired party (Fielkow, 1997, p. 6).
While the Reid factors have been applied
irregularly, the weight given to payment
methods, and especially employee benefits and
tax treatment suggests an expectation in the
USA that the work would belong to the
institution that paid the artist's salary. (Feilkow,
1997, p. 13). The German artist might well
discover that she had no moral rights to claim
simply because she accepted a salary
arrangement rather than a benefit-free check,
even though the salary and benefits had nothing
to do with that measure of her own personality
that went into creating the art.

*
Inheritance example*

A young German sculptor works at a US
university, where his main job is create a set of
statues for the outside of new library. The
library director likes the statues so well that,
with the artist's permission, they become an
integral part of the logo that the library uses on
its Web site. Year after year at homecoming the
students paint the statues purple (the school
color). The university always clean the statues
off at the sculptor's insistence, but after he
unexpectedly dies in a traffic accident, they
decide to leave the color, and even change the
color on the library logo. The sculptor's
German parents assert his moral rights and
insist that the original color be restored, both to
the statue and to the logo on the Web site.
Under German law, the moral rights remain
for 70 years after death, the same duration as
for economic protection. (Schultze, 1998,
p. 70). Under US law, they only ''endure for a
term consisting of the life of the author'' (17
USC 106A (d)). In other words, the artist's
moral rights died with him under US law. The
potentially complex questions about whether
the moral rights also apply to the derivative
image of the statue in the logo are irrelevant.

Michael Seadle
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