Wednesday, March 26, 2014

Class 22: Moral Rights


For the last several weeks, we have learned about the exclusive rights granted to copyright owners by 17 U.S.C. § 106: reproduction, adaptation, distribution, performance, and display. The exclusive rights of copyright owners are economic rights, or rights to control the use of a work in order to claim some of its economic value.

In the next two classes, we will learn about the moral rights of attribution and integrity. Moral rights are non-economic rights to control the use of a work in order to protect the reputation of its author. Many countries grant moral rights to all copyright owners, but the United States only grants limited moral rights to certain copyright owners under 17 U.S.C. § 106A.

Moral Rights

Historically, United States copyright law has only granted economic rights to copyright owners. In other words, it has enabled copyright owners to claim some of the economic value of their works by granting them the right to control certain uses of their works. Under United States law, copyright is justified as a quid pro quo or "something for something": the public grants a copyright in exchange for a work of authorship.

By contrast, many countries grant both economic and non-economic or "moral" rights to copyright owners. For example, French law grants authors the droit d'auteur or "right of the author," which includes both the droit patrimoniaux or "patrimonial right" and the droit moral or "moral right." The patrimonial right grants economic rights, and the moral right grants non-economic rights.

While the scope of the moral rights granted to copyright owners differs from country to country, it generally includes the rights of integrity and attribution. The right of integrity is the right to prevent the destruction or alteration of a work. The right of attribution is the right to be identified as the author of a work.

Many countries also grant copyright owners the moral rights of disclosure and withdrawal. The right of disclosure is the right to decide whether, when, and how to publish or publicly present a work. The right of withdrawal is the right to withdraw a work from publication or public presentation, the right to modify a work after publication, and in some cases, the right to prevent excessive criticism of a work.

While United States copyright law does not generally grant moral rights to copyright owners, it does grant some moral rights to some copyright owners in some circumstances. First, elements of the rights of integrity and paternity may be protected by both state and federal law. Second, several states grant certain moral rights to authors. And third, the Visual Artists Rights Act of 1990 grants limited rights of integrity and attribution to some authors in some circumstances.

But United States copyright law may incorporate moral rights implicitly, as well as explicitly. For example, judges and juries tend to punish copyright infringers who offend their moral sensibilities more harshly than those who do not. And beliefs about moral rights may affect how judges interpret the scope of copyright protection.

  1. Which theories of copyright best explain the justification of economic rights?
  2. Which theories of copyright best explain the justification of non-economic rights?
  3. Can you think of any cases we have discussed in which beliefs about moral rights may have affect the outcome?
Gilliam v. American Broadcasting Cos., Inc., 538 F.2d 14 (2d Cir. 1976)
LUMBARD, Circuit Judge: 
Plaintiffs, a group of British writers and performers known as "Monty Python," appeal from a denial by Judge Lasker in the Southern District of a preliminary injunction to restrain the American Broadcasting Company (ABC) from broadcasting edited versions of three separate programs originally written and performed by Monty Python for broadcast by the British Broadcasting Corporation (BBC). We agree with Judge Lasker that the appellants have demonstrated that the excising done for ABC impairs the integrity of the original work. We further find that the countervailing injuries that Judge Lasker found might have accrued to ABC as a result of an injunction at a prior date no longer exist. We therefore direct the issuance of a preliminary injunction by the district court. 
Since its formation in 1969, the Monty Python group has gained popularity primarily through its thirty-minute television programs created for BBC as part of a comedy series entitled "Monty Python's Flying Circus." In accordance with an agreement between Monty Python and BBC, the group writes and delivers to BBC scripts for use in the television series. This scriptwriters' agreement recites in great detail the procedure to be followed when any alterations are to be made in the script prior to recording of the program. The essence of this section of the agreement is that, while BBC retains final authority to make changes, appellants or their representatives exercise optimum control over the scripts consistent with BBC's authority and only minor changes may be made without prior consultation with the writers. Nothing in the scriptwriters' agreement entitles BBC to alter a program once it has been recorded. The agreement further provides that, subject to the terms therein, the group retains all rights in the script. 
Under the agreement, BBC may license the transmission of recordings of the television programs in any overseas territory. The series has been broadcast in this country primarily on non-commercial public broadcasting television stations, although several of the programs have been broadcast on commercial stations in Texas and Nevada. In each instance, the thirty-minute programs have been broadcast as originally recorded and broadcast in England in their entirety and without commercial interruption. 
In October 1973, Time-Life Films acquired the right to distribute in the United States certain BBC television programs, including the Monty Python series. Time- Life was permitted to edit the programs only "for insertion of commercials, applicable censorship or governmental . . . rules and regulations, and National Association of Broadcasters and time segment requirements." No similar clause was included in the scriptwriters' agreement between appellants and BBC. Prior to this time, ABC had sought to acquire the right to broadcast excerpts from various Monty Python programs in the spring of 1975, but the group rejected the proposal for such a disjoined format. Thereafter, in July 1975, ABC agreed with Time-Life to broadcast two ninety- minute specials each comprising three thirty-minute Monty Python programs that had not previously been shown in this country. 
Correspondence between representatives of BBC and Monty Python reveals that these parties assumed that ABC would broadcast each of the Monty Python programs "in its entirety." On September 5, 1975, however, the group's British representative inquired of BBC how ABC planned to show the programs in their entirety if approximately 24 minutes of each 90 minute program were to be devoted to commercials. BBC replied on September 12, "we can only reassure you that ABC have decided to run the programmes 'back to back,' and that there is a firm undertaking not to segment them." 
ABC broadcast the first of the specials on October 3, 1975. Appellants did not see a tape of the program until late November and were allegedly "appalled" at the discontinuity and "mutilation" that had resulted from the editing done by Time-Life for ABC. Twenty-four minutes of the original 90 minutes of recording had been omitted. Some of the editing had been done in order to make time for commercials; other material had been edited, according to ABC, because the original programs contained offensive or obscene matter. 
In early December, Monty Python learned that ABC planned to broadcast the second special on December 26, 1975. The parties began negotiations concerning editing of that program and a delay of the broadcast until Monty Python could view it. These negotiations were futile, however, and on December 15 the group filed this action to enjoin the broadcast and for damages. Following an evidentiary hearing, Judge Lasker found that "the plaintiffs have established an impairment of the integrity of their work" which "caused the film or program . . . to lose its iconoclastic verve." According to Judge Lasker, "the damage that has been caused to the plaintiffs is irreparable by its nature." Nevertheless, the judge denied the motion for the preliminary injunction on the grounds that it was unclear who owned the copyright in the programs produced by BBC from the scripts written by Monty Python; that there was a question of whether Time-Life and BBC were indispensable parties to the litigation; that ABC would suffer significant financial loss if it were enjoined a week before the scheduled broadcast; and that Monty Python had displayed a "somewhat disturbing casualness" in their pursuance of the matter. 
Judge Lasker granted Monty Python's request for more limited relief by requiring ABC to broadcast a disclaimer during the December 26 special to the effect that the group dissociated itself from the program because of the editing. A panel of this court, however, granted a stay of that order until this appeal could be heard and permitted ABC to broadcast, at the beginning of the special, only the legend that the program had been edited by ABC. We heard argument on April 13 and, at that time, enjoined ABC from any further broadcast of edited Monty Python programs pending the decision of the court. 
In determining the availability of injunctive relief at this early stage of the proceedings, Judge Lasker properly considered the harm that would inure to the plaintiffs if the injunction were denied, the harm that defendant would suffer if the injunction were granted, and the likelihood that plaintiffs would ultimately succeed on the merits. See Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953). We direct the issuance of a preliminary injunction because we find that all these factors weigh in favor of appellants. 
There is nothing clearly erroneous in Judge Lasker's conclusion that any injury suffered by appellants as a result of the broadcast of edited versions of their programs was irreparable by its nature. ABC presented the appellants with their first opportunity for broadcast to a nationwide network audience in this country. If ABC adversely misrepresented the quality of Monty Python's work, it is likely that many members of the audience, many of whom, by defendant's admission, were previously unfamiliar with appellants, would not become loyal followers of Monty Python productions. The subsequent injury to appellants' theatrical reputation would imperil their ability to attract the large audience necessary to the success of their venture. Such an injury to professional reputation cannot be measured in monetary terms or recompensed by other relief. See Coca-Cola Co. v. Gemini Rising, Inc., 346 F.Supp. 1183, 1189 (E.D.N.Y.1972); Estee Lauder, Inc. v. Watsky, 323 F.Supp. 1064, 1067 (S.D.N.Y.1970). 
In contrast to the harm that Monty Python would suffer by a denial of the preliminary injunction, Judge Lasker found that ABC's relationship with its affiliates would be impaired by a grant of an injunction within a week of the scheduled December 26 broadcast. The court also found that ABC and its affiliates had advertised the program and had included it in listings of forthcoming television programs that were distributed to the public. Thus a last minute cancellation of the December 26 program, Judge Lasker concluded, would injure defendant financially and in its reputation with the public and its advertisers. 
However valid these considerations may have been when the issue before the court was whether a preliminary injunction should immediately precede the broadcast, any injury to ABC is presently more speculative. No rebroadcast of the edited specials has been scheduled and no advertising costs have been incurred for the immediate future. Thus there is no danger that defendant's relations with affiliates or the public will suffer irreparably if subsequent broadcasts of the programs are enjoined pending a disposition of the issues. 
We then reach the question whether there is a likelihood that appellants will succeed on the merits. In concluding that there is a likelihood of infringement here, we rely especially on the fact that the editing was substantial, i. e., approximately 27 per cent of the original program was omitted, and the editing contravened contractual provisions that limited the right to edit Monty Python material. It should be emphasized that our discussion of these matters refers only to such facts as have been developed upon the hearing for a preliminary injunction. Modified or contrary findings may become appropriate after a plenary trial. 
Judge Lasker denied the preliminary injunction in part because he was unsure of the ownership of the copyright in the recorded program. Appellants first contend that the question of ownership is irrelevant because the recorded program was merely a derivative work taken from the script in which they hold the uncontested copyright. Thus, even if BBC owned the copyright in the recorded program, its use of that work would be limited by the license granted to BBC by Monty Python for use of the underlying script. We agree. 
Section 7 of the Copyright Law, 17 U.S.C. s 7, provides in part that "adaptations, arrangements, dramatizations . . . or other versions of . . . copyrighted works when produced with the consent of the proprietor of the copyright in such works . . . shall be regarded as new works subject to copyright . . . ." Manifestly, the recorded program falls into this category as a dramatization of the script, and thus the program was itself entitled to copyright protection. However, section 7 limits the copyright protection of the derivative work, as works adapted from previously existing scripts have become known, to the novel additions made to the underlying work, Reyher v. Children's Television Workshop, 533 F.2d 87 (2d Cir. 1976), and the derivative work does not affect the "force or validity" of the copyright in the matter from which it is derived. See Grove Press, Inc. v. Greenleaf Publishing Co., 247 F.Supp. 518 (S.D.N.Y.1965). Thus, any ownership by BBC of the copyright in the recorded program would not affect the scope or ownership of the copyright in the underlying script. 
Since the copyright in the underlying script survives intact despite the incorporation of that work into a derivative work, one who uses the script, even with the permission of the proprietor of the derivative work, may infringe the underlying copyright. See Davis v. E. I. DuPont deNemours & Co., 240 F.Supp. 612 (S.D.N.Y.1965) (defendants held to have infringed when they obtained permission to use a screenplay in preparing a television script but did not obtain permission of the author of the play upon which the screenplay was based). 
If the proprietor of the derivative work is licensed by the proprietor of the copyright in the underlying work to vend or distribute the derivative work to third parties, those parties will, of course, suffer no liability for their use of the underlying work consistent with the license to the proprietor of the derivative work. Obviously, it was just this type of arrangement that was contemplated in this instance. The scriptwriters' agreement between Monty Python and BBC specifically permitted the latter to license the transmission of the recordings made by BBC to distributors such as Time-Life for broadcast in overseas territories. 
One who obtains permission to use a copyrighted script in the production of a derivative work, however, may not exceed the specific purpose for which permission was granted. Most of the decisions that have reached this conclusion have dealt with the improper extension of the underlying work into media or time, i. e., duration of the license, not covered by the grant of permission to the derivative work proprietor. See Bartsch v. Metro- Goldwyn-Mayer, Inc., 391 F.2d 150 (2d Cir.), cert. denied, 393 U.S. 826, 89 S.Ct. 86, 21 L.Ed.2d 96 (1968); G. Ricordi & Co. v. Paramount Pictures Inc., 189 F.2d 469 (2d Cir.), cert. denied, 342 U.S. 849, 72 S.Ct. 77, 96 L.Ed. 641 (1951). Cf. Rice v. American Program Bureau, 446 F.2d 685 (2d Cir. 1971). Appellants herein do not claim that the broadcast by ABC violated media or time restrictions contained in the license of the script to BBC. Rather, they claim that revisions in the script, and ultimately in the program, could be made only after consultation with Monty Python, and that ABC's broadcast of a program edited after recording and without consultation with Monty Python exceeded the scope of any license that BBC was entitled to grant. 
The rationale for finding infringement when a licensee exceeds time or media restrictions on his license the need to allow the proprietor of the underlying copyright to control the method in which his work is presented to the public applies equally to the situation in which a licensee makes an unauthorized use of the underlying work by publishing it in a truncated version. Whether intended to allow greater economic exploitation of the work, as in the media and time cases, or to ensure that the copyright proprietor retains a veto power over revisions desired for the derivative work, the ability of the copyright holder to control his work remains paramount in our copyright law. We find, therefore, that unauthorized editing of the underlying work, if proven, would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright. 
If the broadcast of an edited version of the Monty Python program infringed the group's copyright in the script, ABC may obtain no solace from the fact that editing was permitted in the agreements between BBC and Time-Life or Time-Life and ABC. BBC was not entitled to make unilateral changes in the script and was not specifically empowered to alter the recordings once made; Monty Python, moreover, had reserved to itself any rights not granted to BBC. Since a grantor may not convey greater rights than it owns, BBC's permission to allow Time-Life, and hence ABC, to edit appears to have been a nullity. See Hampton v. Paramount Pictures Corp., 279 F.2d 100 (9th Cir.), cert. denied, 364 U.S. 882, 81 S.Ct. 170, 5 L.Ed.2d 103 (1970); Ilyin v. Avon Publications, 144 F.Supp. 368, 372 (S.D.N.Y.1956). 
ABC answers appellants' infringement argument with a series of contentions, none of which seems meritorious at this stage of the litigation. The network asserts that Monty Python's British representative, Jill Foster, knew that ABC planned to exclude much of the original BBC program in the October 3 broadcast. ABC thus contends that by not previously objecting to this procedure, Monty Python ratified BBC's authority to license others to edit the underlying script. 
Although the case of Ilyin v. Avon Publications, Inc., 144 F.Supp. 368, 373 (S.D.N.Y.1956), may be broadly read for the proposition that a holder of a derivative copyright may obtain rights in the underlying work through ratification, the conduct necessary to that conclusion has yet to be demonstrated in this case. It is undisputed that appellants did not have actual notice of the cuts in the October 3 broadcast until late November. Even if they are chargeable with the knowledge of their British representative, it is not clear that she had prior notice of the cuts or ratified the omissions, nor did Judge Lasker make any finding on the question. While Foster, on September 5, did question how ABC was to broadcast the entire program if it was going to interpose 24 minutes of commercials, she received assurances from BBC that the programs would not be "segmented." The fact that she knew precisely the length of material that would have to be omitted to allow for commercials does not prove that she ratified the deletions. This is especially true in light of previous assurances that the program would contain the original shows in their entirety. On the present record, it cannot be said that there was any ratification of BBC's grant of editing rights. ABC, of course, is entitled to attempt to prove otherwise during the trial on the merits. 
ABC next argues that under the "joint work" theory adopted in Shapiro, Bernstein & Co. v. Jerry Vogel Music, Inc., 221 F.2d 569 (2d Cir. 1955), the script produced by Monty Python and the program recorded by BBC are symbiotic elements of a single production. Therefore, according to ABC, each contributor possesses an undivided ownership of all copyrightable elements in the final work and BBC could thus have licensed use of the script, including editing, written by appellants. 
The joint work theory as extended in Shapiro has been criticized as inequitable unless "at the time of creation by the first author, the second author's contribution (is envisaged) as an integrated part of a single work," and the first author intends that the final product be a joint work. See 1 M. Nimmer, Copyright ss 67-73. Furthermore, this court appears to have receded from a broad application of the joint work doctrine where the contract which leads to collaboration between authors indicates that one will retain a superior interest. See Szekely v. Eagle Lion Films, Inc., 242 F.2d 266 (2d Cir.), cert. denied, 354 U.S. 922, 77 S.Ct. 1382, 1 L.Ed.2d 1437 (1957). In the present case, the screenwriters' agreement between Monty Python and BBC provides that the group is to retain all rights in the script not granted in the agreement and that at some future point the group may license the scripts for use on television to parties other than BBC. These provisions suggest that the parties did not consider themselves joint authors of a single work. This matter is subject to further exploration at the trial, but in the present state of the record, it presents no bar to issuance of a preliminary injunction. 
Aside from the question of who owns the relevant copyrights, ABC asserts that the contracts between appellants and BBC permit editing of the programs for commercial television in the United States. ABC argues that the scriptwriters' agreement allows appellants the right to participate in revisions of the script only prior to the recording of the programs, and thus infers that BBC had unrestricted authority to revise after that point. This argument, however, proves too much. A reading of the contract seems to indicate that Monty Python obtained control over editing the script only to ensure control over the program recorded from that script. Since the scriptwriters' agreement explicitly retains for the group all rights not granted by the contract, omission of any terms concerning alterations in the program after recording must be read as reserving to appellants exclusive authority for such revisions. 
Finally, ABC contends that appellants must have expected that deletions would be made in the recordings to conform them for use on commercial television in the United States. ABC argues that licensing in the United States implicitly grants a license to insert commercials in a program and to remove offensive or obscene material prior to broadcast. According to the network, appellants should have anticipated that most of the excised material contained scatological references inappropriate for American television and that these scenes would be replaced with commercials, which presumably are more palatable to the American public. 
The proof adduced up to this point, however, provides no basis for finding any implied consent to edit. Prior to the ABC broadcasts, Monty Python programs had been broadcast on a regular basis by both commercial and public television stations in this country without interruption or deletion. Indeed, there is no evidence of any prior broadcast of edited Monty Python material in the United States. These facts, combined with the persistent requests for assurances by the group and its representatives that the programs would be shown intact belie the argument that the group knew or should have known that deletions and commercial interruptions were inevitable. 
Several of the deletions made for ABC, such as elimination of the words "hell" and "damn," seem inexplicable given today's standard television fare. If, however, ABC honestly determined that the programs were obscene in substantial part, it could have decided not to broadcast the specials at all, or it could have attempted to reconcile its differences with appellants. The network could not, however, free from a claim of infringement, broadcast in a substantially altered form a program incorporating the script over which the group had retained control. 
Our resolution of these technical arguments serves to reinforce our initial inclination that the copyright law should be used to recognize the important role of the artist in our society and the need to encourage production and dissemination of artistic works by providing adequate legal protection for one who submits his work to the public. See Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954). We therefore conclude that there is a substantial likelihood that, after a full trial, appellants will succeed in proving infringement of their copyright by ABC's broadcast of edited versions of Monty Python programs. In reaching this conclusion, however, we need not accept appellants' assertion that any editing whatsoever would constitute infringement. Courts have recognized that licensees are entitled to some small degree of latitude in arranging the licensed work for presentation to the public in a manner consistent with the licensee's style or standards. See Stratchborneo v. Arc. Music Corp., 357 F.Supp. 1393, 1405 (S.D.N.Y.1973); Preminger v. Columbia Pictures Corp., 49 Misc.2d 363, 267 N.Y.S.2d 594 (Sup.Ct.), aff'd 25 App.Div.2d 830, 269 N.Y.S.2d 913 (1st Dept.), aff'd 18 N.Y.2d 659, 273 N.Y.S.2d 80, 219 N.E.2d 431 (1966). That privilege, however, does not extend to the degree of editing that occurred here especially in light of contractual provisions that limited the right to edit Monty Python material. 
It also seems likely that appellants will succeed on the theory that, regardless of the right ABC had to broadcast an edited program, the cuts made constituted an actionable mutilation of Monty Python's work. 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. See 1 M. Nimmer, supra, at s 110.1. 
American copyright law, as presently written, does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors. Nevertheless, the economic incentive for artistic and intellectual creation that serves as the foundation for American copyright law, Goldstein v. California, 412 U.S. 546, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973); Mazer v. Stein, 347 U.S. 201, 74 S.Ct. 460, 98 L.Ed. 630 (1954), cannot be reconciled with the inability of artists to obtain relief for mutilation or misrepresentation of their work to the public on which the artists are financially dependent. Thus courts have long granted relief for misrepresentation of an artist's work by relying on theories outside the statutory law of copyright, such as contract law, Granz v. Harris, 198 F.2d 585 (2d Cir. 1952) (substantial cutting of original work constitutes misrepresentation), or the tort of unfair competition, Prouty v. National Broadcasting Co., 26 F.Supp. 265 (D.Mass.1939). See Strauss, The Moral Right of the Author 128-138, in Studies on Copyright (1963). Although such decisions are clothed in terms of proprietary right in one's creation, they also properly vindicate the author's personal right to prevent the presentation of his work to the public in a distorted form. See Gardella v. Log Cabin Products Co., 89 F.2d 891, 895-96 (2d Cir. 1937); Roeder, The Doctrine of Moral Right, 53 Harv.L.Rev. 554, 568 (1940). 
Here, the appellants claim that the editing done for ABC mutilated the original work and that consequently the broadcast of those programs as the creation of Monty Python violated the Lanham Act s 43(a), 15 U.S.C. s 1125(a). This statute, the federal counterpart to state unfair competition laws, has been invoked to prevent misrepresentations that may injure plaintiff's business or personal reputation, even where no registered trademark is concerned. See Mortellito v. Nina of California, 335 F.Supp. 1288, 1294 (S.D.N.Y.1972). It is sufficient to violate the Act that a representation of a product, although technically true, creates a false impression of the product's origin. See Rich v. RCA Corp., 390 F.Supp. 530 (S.D.N.Y.1975) (recent picture of plaintiff on cover of album containing songs recorded in distant past held to be a false representation that the songs were new); Geisel v. Poynter Products, Inc., 283 F.Supp. 261, 267 (S.D.N.Y.1968). 
These cases cannot be distinguished from the situation in which a television network broadcasts a program properly designated as having been written and performed by a group, but which has been edited, without the writer's consent, into a form that departs substantially from the original work. "To deform his work is to present him to the public as the creator of a work not his own, and thus makes him subject to criticism for work he has not done." Roeder, supra, at 569. In such a case, it is the writer or performer, rather than the network, who suffers the consequences of the mutilation, for the public will have only the final product by which to evaluate the work. Thus, an allegation that a defendant has presented to the public a "garbled," Granz v. Harris, supra (Frank, J., concurring), distorted version of plaintiff's work seeks to redress the very rights sought to be protected by the Lanham Act, 15 U.S.C. s 1125(a), and should be recognized as stating a cause of action under that statute. See Autry v. Republic Productions, Inc., 213 F.2d 667 (9th Cir. 1954); Jaeger v. American Intn'l Pictures, Inc., 330 F.Supp. 274 (S.D.N.Y.1971), which suggest the violation of such a right if mutilation could be proven.
During the hearing on the preliminary injunction, Judge Lasker viewed the edited version of the Monty Python program broadcast on December 26 and the original, unedited version. After hearing argument of this appeal, this panel also viewed and compared the two versions. We find that the truncated version at times omitted the climax of the skits to which appellants' rare brand of humor was leading and at other times deleted essential elements in the schematic development of a story line. We therefore agree with Judge Lasker's conclusion that the edited version broadcast by ABC impaired the integrity of appellants' work and represented to the public as the product of appellants what was actually a mere caricature of their talents. We believe that a valid cause of action for such distortion exists and that therefore a preliminary injunction may issue to prevent repetition of the broadcast prior to final determination of the issues. 
We do not share Judge Lasker's concern about the procedures by which the appellants have pursued this action. The district court indicated agreement with ABC that appellants were guilty of laches in not requesting a preliminary injunction until 11 days prior to the broadcast. Our discussion above, however, suggests that the group did not know and had no reason to believe until late November that editing would take place. Several letters between BBC and Monty Python's representative indicate that appellants believed that the programs would be shown in their entirety. Furthermore, the group did act to prevent offensive editing of the second program immediately after viewing the tape of the first edited program. Thus we find no undue delay in the group's failure to institute this action until they were sufficiently advised regarding the facts necessary to support the action. In any event, ABC has not demonstrated how it was prejudiced by any delay. See Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 574 (2d Cir. 1973). 
Finally, Judge Lasker denied a preliminary injunction because Monty Python had failed to join BBC and Time-Life as indispensable parties. We do not believe that either is an indispensable party. ABC argues that joinder of both was required because it acted in good faith pursuant to its contractual rights with Time-Life in broadcasting edited versions of the programs, and Time-Life, in turn, relied upon its contract with BBC. Furthermore, ABC argues, BBC must be joined since it owns the copyright in the recorded programs. 
Even if BBC owns a copyright relevant to determination of the issues in this case, the formalistic rule that once required all owners of a copyright to be parties to an action for its infringement has given way to equitable considerations. See Jaeger v. American International Pictures, supra, 330 F.Supp. at 279; 7 C. Wright & A. Miller, Federal Practice and Procedure, s 1614. In this case, the equities to be considered under Fed.R.Civ.P. 19(a) strongly favor appellants. Monty Python is relying solely on its copyright in the script and on its rights as an author. No claim is being made that Monty Python has rights derived from the copyright held by another. Compare First Financial Marketing Services Group, Inc. v. Field Promotions, Inc., 286 F.Supp. 295 (S.D.N.Y.1968). One of the parties is an English corporation, and any action that appellants, a group of English writers and performers, might have against that potential defendant would be better considered under English law in an English court. 
Complete relief for the alleged infringement and mutilation complained of may be accorded between Monty Python and ABC, which alone broadcast the programs in dispute. If ABC is ultimately found liable to appellants, a permanent injunction against future broadcasts and a damage award would satisfy all of appellants' claims. ABC's assertion that failure to join BBC and Time-Life may leave it subject to inconsistent verdicts in a later action against its licensors may be resolved through the process of impleader, which ABC has thus far avoided despite a suggestion from the district court to use that procedure. Finally, neither of the parties considered by ABC to be indispensable has claimed any interest in the subject matter of this litigation. See Fed.R.Civ.P. 19(a)(2).
For these reasons we direct that the district court issue the preliminary injunction sought by the appellants. 
GURFEIN, Circuit Judge (concurring): 
I concur in my brother Lumbard's scholarly opinion, but I wish to comment on the application of Section 43(a) of the Lanham Act, 15 U.S.C. s 1125(a). 
I believe that this is the first case in which a federal appellate court has held that there may be a violation of Section 43(a) of the Lanham Act with respect to a common-law copyright. The Lanham Act is a trademark statute, not a copyright statute. Nevertheless, we must recognize that the language of Section 43(a) is broad. It speaks of the affixation or use of false designations of origin or false descriptions or representations, but proscribes such use "in connection with any goods or services." It is easy enough to incorporate trade names as well as trademarks into Section 43(a) and the statute specifically applies to common law trademarks, as well as registered trademarks. Lanham Act s 45, 15 U.S.C. s 1127. 
In the present case, we are holding that the deletion of portions of the recorded tape constitutes a breach of contract, as well as an infringement of a common-law copyright of the original work. There is literally no need to discuss whether plaintiffs also have a claim for relief under the Lanham Act or for unfair competition under New York law. I agree with Judge Lumbard, however, that it may be an exercise of judicial economy to express our view on the Lanham Act claim, and I do not dissent therefrom. I simply wish to leave it open for the District Court to fashion the remedy. 
The Copyright Act provides no recognition of the so-called droit moral, or moral right of authors. Nor are such rights recognized in the field of copyright law in the United States. See 1 Nimmer on Copyright, s 110.2 (1975 ed.). If a distortion or truncation in connection with a use constitutes an infringement of copyright, there is no need for an additional cause of action beyond copyright infringement. Id. at s 110.3. An obligation to mention the name of the author carries the implied duty, however, as a matter of contract, not to make such changes in the work as would render the credit line a false attribution of authorship, Granz v. Harris, 198 F.2d 585 (2 Cir. 1952). 
So far as the Lanham Act is concerned, it is not a substitute for droit moral which authors in Europe enjoy. If the licensee may, by contract, distort the recorded work, the Lanham Act does not come into play. If the licensee has no such right by contract, there will be a violation in breach of contract. The Lanham Act can hardly apply literally when the credit line correctly states the work to be that of the plaintiffs which, indeed it is, so far as it goes. The vice complained of is that the truncated version is not what the plaintiffs wrote. But the Lanham Act does not deal with artistic integrity. It only goes to misdescription of origin and the like. See Societe Comptoir De L'Industrie Cotonniere Etablissements Boussac v. Alexander's Dept. Stores, Inc., 299 F.2d 33, 36 (2 Cir. 1962). 
The misdescription of origin can be dealt with, as Judge Lasker did below, by devising an appropriate legend to indicate that the plaintiffs had not approved the editing of the ABC version. With such a legend, there is no conceivable violation of the Lanham Act. If plaintiffs complain that their artistic integrity is still compromised by the distorted version, their claim does not lie under the Lanham Act, which does not protect the copyrighted work itself but protects only against the misdescription or mislabelling. 
So long as it is made clear that the ABC version is not approved by the Monty Python group, there is no misdescription of origin. So far as the content of the broadcast itself is concerned, that is not within the proscription of the Lanham Act when there is no misdescription of the authorship. 
I add this brief explanation because I do not believe that the Lanham Act claim necessarily requires the drastic remedy of permanent injunction. That form of ultimate relief must be found in some other fountainhead of equity jurisprudence.

Monty Python's Flying Circus, Dead Parrot
(Season 1, Episode 8, July 12, 1969)

  1. Is the court's holding that ABC infringed Monty Python's copyright convincing?
  2. Why did the court rely on the Lanham Act?
  3. Are the court's copyright and Lanham Act holdings consistent with each other?
  4. In Edison v. Viva Int'l, Ltd.70 A.D.2d 379 (1979), the court held that an author could bring a libel action against a publisher for editing the author's work in a way that defamed the author. Is that consistent with the Copyright Act?
  5. In Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), the Supreme Court held that the author of a public domain work could not file a Lanham Act claim against a person who edited, repackaged, and sold the work without attribution. Is Dastar consistent with Gilliam? Is Dastar consistent with moral rights?
State Law Moral Rights

Several states have passed laws granting moral rights to authors. For example, California, New York, Massachusetts, and Louisiana law all grant certain moral rights to authors.  Of course, different states grant different rights. For example, the California Art Preservation Act, Cal. Civ. Code § 987, grants a waivable right of preservation to authors of works of fine art. In other words, painters and sculptors can prevent the destruction or alteration of their works. By contrast, the New York Artists' Authorship Rights Act, N.Y. ACA. LAW § 14.03, grants artists the right to prevent the public display of an altered work, if it would damage their reputation.

  1. Are these state moral rights laws compatible with federal copyright law?
  2. In Wojnarowicz v. Am. Family Ass'n, 745 F. Supp. 130 (S.D.N.Y 1990), the court held that the defendant had violated the New York Artists' Authorship Rights Act by reproducing fragments of the plaintiff's work, in order to criticize it. Is that consistent with copyright law? Is it consistent with the First Amendment?

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Copyright Law Casebook by Brian L. Frye is licensed under a Creative Commons Attribution 4.0 International License.
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