>> From the Library of Congress in Washington, D.C. ^M00:00:04 [ Silence ] ^M00:00:23 >> Brad A. Greenberg: Okay. Great. This is the fifth session of the day as the board tells me. This is the intersection of moral rights and other laws. As you heard earlier today, the U.S. adapted the patchwork model to providing moral rights upon joining the Berne Convention. In the U.S. our mechanisms for recognizing moral rights come not just from the Copyright Act itself but also from a variety of other federal and state laws, as well as supplementation from private ordering. The patchwork, though, isn't just the source of moral rights, it's also the scope of the rights we have and that's what we're going to discuss on this panel. Not just where those right come from but how they're defined and how their definition is shaped by other laws. We'll look at the interactions and instantiations within the Copyright Act itself such as the fair use doctrine and VARA, the boundaries of VARA, at free speech considerations that exist outside of fair use and the traditional contour of copyright law, and at business and contractual arrangements that guarantee proxies for moral rights such as you heard earlier the creative commons created by license. We have some amazing panelists here to discuss these issues. On my left is professor Sonya Bonneau of Georgetown University Law Center, to her left is Paul Alan  did we say earlier it was Leevy? Yeah, not Leavy. Paul Alan Levy, an attorney with the Public Citizen Litigation Group, to his left is Eugene Mopsik, a retired professional photographer and a longtime advocate for visual artists, then Nancy E. Wolf a partner at the IP media entertainment law firm Cowan, DeBaets, and on the far end is Kate Spelman, who is here from Seattle where she's a shareholder at the law firm Lane Powell. So I'm going to turn this over to the panelists for brief remarks to discuss various aspects of these intersections and then we'll have a number of questions to discuss among ourselves and then at the end as you've seen we'll have about five minutes hopefully for audience questions. So Sonya? >> Sonya Bonneau: Okay. Well, I hate to bring up VARA again but it is one of the few moral rights legislative acts that we have and I just wanted to talk about an intersection from a policy standpoint of VARA's place in the Copyright Act and its -- the multiplicitous goals that it -- under which it was enacted. And even though it's this tiny tiny narrowly circumscribed statute, it purported to do a lot. A lot of the legislative history talked about different things. One was a sense that copyright law doesn't help the visual artist who produces unique objects. Everyone else works on a system of number of copies sold whereas for the visual artist you sell its over. The other was what you can think of as the true moral rights perspective where it's about the individual's connection with their work although that to the extent that's what it's supposed to do there was really no reason to limit it to visual artists but again that's part of it. You see that in the  there's a lot of flowery rhetoric romantic artist type rhetoric whenever courts talk about it regardless of whether they are actually thinking that's important. And then there was the cultural preservation side to it which is what I'm going to focus on. As Peter, you discussed earlier, that is the one the VARA's right against complete destruction of a work of recognized stature is actually the one aspect of VARA that is not required by Berne. So the U.S., despite its hundred year resistance to Berne went ahead and enacted something that goes a little bit beyond what was required but not beyond in a moral rights way. I think it was part of their idea that this could benefit the public because it assumes that the artist's interest, the artist who is enforcing this right is directly aligned with the public interest. So art preservation is good, we can get moral rights and we can also serve the public interest by saving great art. The problem is within the Copyright Act, copyright law is based on a progress model in which, as I'm sure you all know, the author gets a temporary monopoly on their work so that they can profit from the number of copies sold and then that's the incentive for creativity and then it goes away and the public gets access to the work. Whereas the preservation idea is a completely different notion of -- it preserves. It rewards the status quo and it's animated by an artist when someone wants to destroy their work, and I'm only talking about the destruction provision. So you've got a very different dynamic set up, and I think that's partly why it hasn't worked well and these combinations and intersections become even more problematic when you look at VARA and the fact that that's the main provision that is invoked. I mean very little of it the case law's attribution because the circumscribed set of artifacts of unique objects is just -- it's limited to that kind of production and reproduction. >> Brad A. Greenberg: Thank you, Sonya. ^M00:06:33 [ Laughter ] ^M00:06:35 Paul do you want to jump in and talk about free speech? >> Paul Alan Levy: Sure. So it's awfully hard to come out against moral rights; the catch phrase sounds so good. And there are certainly compelling stories told about abuses directed at works by certain offbeat individuals who are authors. But if moral rights are legislated they'll be enjoyed equally by the mainstream commercial titans. From a copyleft perspective, which is mine I worry about the impact of legislating new rights on the public domain and more broadly on what might be described as fair uses and downstream uses. Because even and even if the newly adopted moral rights have fair use exceptions, you worry about the transaction costs of having to defend lawsuits in which fair use rights or first amendment rights are raised as a defense not to speak of the intimidating impact of demand letters. To the extent that the moral rights debate really represents a struggle between individual authors and what might be called the corporate copyright exploiting industries, my sympathies are certainly with the individuals, but it's hard to see moral rights be legislated that give rights only against those exploiters. And moreover it seems to me that advocates of moral rights for individual creators want to have it both ways. They want to make it easy to make money from expression using the incentives that copyright law fosters by licensing works through a system that facilitates the use for monetary rewards and taking advantage of the ever-increasing remedies that are available to copyright owners. The ridiculous extension of copyrighted terms whenever Disney's rights are about to expire. The terrifying levels of statutory damages, advocacy, criminal enforcement programs when federal prosecutors so that rights owners don't have to have the bother of enforcing for themselves, and of course ready awards of attorney fees. At the same time some creators want to use moral rights as a club to stop downstream uses that they don't like even though they could have prevented many of those uses through licensing making the kinds of choices that Melvin talked about but that most creators don't want to insert into their contracts either because it would make their works much less marketable or because they lack the economic clout to enforce them or to insist on them. So ultimately despite my sympathies it seems to me that before we give new rights to creators we ought to think about cutting back on the rights that they already have. Rather than talking about moral rights as a bundle moreover we ought to be thinking about specific moral rights. And it seems to me the proponents need to justify the need for a particular moral right to the extent -- this goes to the question that I asked Jane at the end of her talk. I mean most of what she said about the right to attribution was, well we agreed to it and there was a long answer about why we agreed to it and we can debate whether we agreed to and exactly what we agreed to. At the very tail end of her answer we heard something about the incentive to create and so what I want to know is: do we not have sufficient creation? Do we need to have more rights, moral rights in order to create an incentive to create? We also talked about the interests of consumers but what evidence is there that consumers care about attribution? Yes, I mean in trademark law the reason why attribution rights are important is because in certain circumstances consumers care about source. And when you're in a circumstance where the consumers don't care about source, you have relatively little trademark rights. So what's the evidence that we need a right of attribution to serve real interests of consumers who care about source? >> Brad A. Greenberg: So Paul talked about negotiations and licensing agreements. That sets up nicely. Gene, do you want to talk about how creators guarantee themselves at least attribution rights, sometimes integrity rights, through guild agreements, contracts and how it's maybe a poor fit for some types of creators? >> Eugene Mopsik: Well, I'm going to start out -- I have to make an observation first, which is a rather strange irony that here we are at an event about authors attribution and integrity and only one of the images in the program has an actual credit for a creator. We'll go on from there. And I'm going to make some general comments and then I'll actually make some comments that are on topic. >> Brad A. Greenberg: To be fair, I think some of the credits are actually at the end of the bios. >> Eugene Mopsik: All right. It appears to me that moral right for all practical purposes are not on the radar of visual artists and photographers. It's not something that they think about in negotiations. They have enough trouble trying to figure out whether their work is published versus unpublished, and moral rights just don't exist for all practical purposes, and under VARA commercial artists are excluded from any real protection. I would say that VARA and Berne are both examples of an analogue solution to what's now become a digital problem. The works that are protected by VARA are in fact the works that need the least amount of protection today and the commercial works are much more easily separated from their identifying information than the limited numbers of works of fine art. The preservation of identifying information such as rights holder, contact information and licensing history needs to be easily associated and maintained with images. Ultimately its attribution is the holy grail for photographers. Without that everything really falls apart, there's no end, there's no means to get to creating an ongoing income stream from works. While it's trade practice for editorial work to customarily have a creator credit, the truth of the matter is that it's very difficult enforce. And as Alan pointed out, yeah, the contracts are there but  and the terms are there but the enforcement is the issue. And in some cases it's not enforcement it's just the lack of having any leverage in negotiating. And frequently when a photographer goes to a publisher be it for textbook or consumer publication, the contracts that are handed -- they're told take it or leave it. This is the contract. You don't like it, you don't work, you can go somewhere else. And unless you happen to be one of those very rare photographers like an Annie Leibovitz or, you know, one of the top of the food chain, you're out of luck. You don't have any leverage. It's move on and you either accept those terms or not. So another example I had a discussion with Yoko at lunch; in Getty Images contracts they generally call for a credit that reads the photographer's name, Getty Images. If you watch CNN or almost any other television media and you look for the credit for images that appear, it's almost always simply Getty Images without the photographer's name. And why that happens I, you know, can be any number of reasons. It's either it's too difficult for the station or they can't follow it or it's simply that Getty doesn't want to enforce that portion of the agreement. >> Brad A. Greenberg: Thanks, Gene. Nancy, do you want to jump in there? >> Nancy E. Wolf: All right. Well, great. I'm here today with my hat for representing a trade association, Digital Media Licensing Association which is the trade association of stock for the libraries and we had Yoko Miyashita here who is a leading member so now I don't need to explain what we do. That's very helpful. And it's good to follow up with Gene, yes. There's lots of trade practices and in print editorial you generally always got the credit, the photographer name and then the source because that's the payment and that was fairly standard. You know, digital revolution has made it so there's more images being used ever, yet unfortunately as even Yoko mentioned often many of them are just because someone has chosen to right click. And it's interesting because I do a lot of education and copyright education as part of my role and most people are amazed that there really is no attribution and yes, you know, obviously if we're in the business of licensing none of these works are subject to any kind of moral rights. So I -- but I think attribution goes well beyond moral rights and if you're going to look at a world where images can be licensed and has a future with technology, it's going to be very important that there is attribution and it exists in the form of a persistent identifier that can live with an image and that that information can be always attainable. ^M00:16:19 Metadata, unfortunately, is not robust. It gets stripped, half the software purposely strips it because the internet wants to have small files and that means a lot of information gets lost. Orphan works is a bigger problem with visual images than anything else because they're orphaned from birth. It isn't as if, you know, that photo libraries and photographers want the works out there without information, it's just that the way they get published online that seems to happen. The industry looked at this and that for the last probably since the orphan works act and probably that was around 2006 or 2008 has started to consider technology options which would include image registries, as Yoko mentioned, there's already reverse image search. But to really make that happen there needs to be enforcement, whether it's through what the Copyright Office could possibly do through CMI that that information can stay with the image and be there. And even I think if we're looking at the other laws, I think because image licensing had been one to one and perhaps maybe overwhelming and seemed to be too difficult to find ownership that unfortunately laws in other areas have broadened. For example it seems like fair use particularly with, you know, art attribution expanded to make it easier to use images versus other works. And then if you look at image search which a number of years ago you'd do an image search you'd get a little thumbnail and it would drive you to the source so you could actually go and have an image license. Now if you look at image search, you get a beautiful large display of an image because the money in the internet now is keeping you sticky on a page. That's where the advertisers are. So there's no incentive to drive you back to the original creator, there's, you know, you can see a small line that says do you want to just look at the image or do you want to see the web site. Well you have the image, that's all you need so you're not driven back to the web site. So I think if there was a way to have persistent identifiers that stuck and you can then introduce licensing models where it would be easier to license and maybe you wouldn't have so much of the overexpansion of fair use like in Google Books because it's easier, you know, not to get permission and not to have some kind of licensing mechanism and you won't have technologies being built for the narrow takedown notices. >> Brad A. Greenberg: Great. Thank you. Kate? >> Katherine C. Spelman: My part in the choir here is the intersection of moral rights and real estate, physical property. I was a student of VARA, I thought VARA was something I understood, I was also a regular volunteer at California Lawyers For the Arts. And if you can imagine on a foggy February of 1993, I alone arrived as the lawyer volunteer in a very abandoned pier warehouse where we welcomed anyone to come and ask copyright questions. And you can imagine that I was a little terrified when the door opened and in walked three giants really looking pretty rough with tattoos up their neck and I had never seen that before, and I thought the end is near. But indeed they walked over and they held up magazines and travel guides to tell me that they were indignant that their murals which they had carefully painted on Balmy Alley in San Francisco's Mission District had been reproduced without permission and most of all without payment to be cover articles and to be indeed covers of some of the most famous travel magazines travel guides for the city of San Francisco. And they were indignant in the sense that they didn't think it was fair and I had the pleasure of telling them that indeed they were well within something called the Visual Artists Rights Act the VARA and we then began working together. I had Scott Turow had the experience of his publisher saying, oh that doesn't apply to you. I had a very similar experience in that when I contacted the relevant publishers in 1993, their first answer was what? What's VARA? And their second answer was when I showed them what it was I was at issue, they said that's not art. That's vandalism. That's not art that's graffiti. That's not art I don't have to talk to you, good bye. And I had to explain that the people of Balmy Alley had made their alley, the walls of their alley -- and many of you I'm sure have been to Balmy Alley and seen how fantastic these colorful vibrant magnificent murals are -- that indeed there was consent and the real estate people were all in cahoots with this and we pursued what was several very very productive settlements for the community that had painted these, painted these  excuse me. Fast forward to 2013 and I get a call from people in Detroit who tell me they have a mural issue and by now I think I've pretty much got the rhythm of murals. I think I've figured out VARA and murals and I've got this square dance and I kind of know the dosido and I think I'm doing all right at which point we learn that what happened -- the facts are so spectacular I have to share them with you. Dan Gilbert, a Cleveland fellow who owns the Cleveland Cavaliers and is also revitalizing Detroit. He has, you may know, has brought lots of street artists to come to Detroit and in one instance he brought six famous street artists to come to Detroit to paint for each of the parking levels of the new parking building he had. He brought fabulous street artists including Banksy to Detroit to take a floor so you'd always remember where you parked your car. Well, Banksy finished his day of work for Dan Gilbert, who is very generous as a patron in commissioning this, and they partied all night and it ended up that he ended up in Hamtramck, a little town inside of the town of Detroit, and at the Packard, the old Packard automotive plant which as many of you know has been abandoned -- literally abandoned -- for 26 years. Abandoned to the point that no one has paid taxes, no one has done anything, it's just no man's land. And Banksy and his team stenciled a giant of one of his favorite stencils on it and a gallery owner in Detroit noticed this happening sent an armed guard down after Banksy and his team was done about dawn they sent down armed guards until a 16 wheeler could be arranged to come down and they cut the Banksy stencil out of the wall of this building, put it on the 16 wheeler and then welded a frame around it, enjoyed for a period of time and then put it up for sale. The auction was going forward, all was going well until the owner of the Packard plant thought, hey that's my plant. You took my wall. And so they raised their hands and said you can't do that, that's our wall. And it will amuse you to know that the judge in the city and county of Detroit said, yes it is your wall and you haven't paid any taxes for 26 years. [Laughter] If you would like standing to bring this dispute in Detroit you will need to pay back taxes, penalties and interest and that comes to X which was almost three quarters of a million dollars. And he quickly said, oh I guess I don't have a problem. And the work then was sold at auction by the gallery company for about $325,000, this big piece. And when Banksy was contacted he was like, yeah I had a good time. I knew what I was doing, okay by me. >> Brad A. Greenberg: So, Kate, that --  >> Katherine C. Spelman: So my intersection is that of an area of law that you don't think of colliding with VARA  excuse me. >> Brad A. Greenberg: Well, yeah, I know. So that this is a good way for us to sort of close the book on the VARA discussion at least for our panel. And that is that VARA tries to strike a balance between property rights and moral rights. So here we're really talking about personality right, property versus personality. But pretty quickly after VARA was enacted we had the Helmsley-Spear case which, of course, the court says well these weren't absolute rights for for creators and we have to assume that traditional property values have been left, property right values have been left in place. And I think of the Five Points case something similar with this in recent years, so I'm wondering the balance that VARA strikes between property and personality rights and who are the winners with losers in that balance? >> Nancy E. Wolf: Well, I would say it's pretty obvious that real estate wins over VARA in most situations. It just seems that no matter what the courts seem to favor property owners. I remember when I was a baby lawyer and first going to federal court I loved this arch down in New York this magnificent arch and no one else seemed to like it but me. So it was taken down. >> Brad A. Greenberg: Not recognized -- work of recognized stature. >> Nancy E. Wolf: It wasn't a work of recognized stature. It was fabulous but, yeah, it's there's so many ways to wiggle out of VARA and artists can waive it so it seems that property owners and the value of their property and if it's inconvenient to have the art in the lobby or in the front the property owners win. >> Katherine C. Spelman: That's assuming someone owns it. >> Nancy E. Wolf: Yes. Other than Banksy. ^M00:25:46 [ Laughter ] ^M00:25:49 >> Sonya Bonneau: I just have a quick point >> Brad A. Greenberg: Absolutely. >> Sonya Bonneau: Which is that it's not surprising because American law is based on property rights and so you have that dissonance whereas attribution as is has been obvious throughout the day is a powerful social norm that most people do believe is the right thing to do. So just as a moving forward thing I think attribution has a lot more grounding at least in our --  >> Brad A. Greenberg: So good segue. Jane Ginsburg in her keynote talked about maybe attribution should be in some of these cases sort of part of the first factor in fair use. And that courts are looking at, you know, was the work attributed and so we get to the issue of fair use and attribution in appropriation art. Should Richard Prince have to credit Cariou somewhere on that photograph or photographs? Can appropriation artists, can they still do their art and be expected to attribute the source of the work? >> Eugene Mopsik: You would think that, at the least, when Richard Prince took Jim Krantz's Marlboro Man -- one of these iconic photographs -- and basically performed copy work on it, enlarged it, it was then part of a significant exhibition at the Whitney, used on a poster, I think to advertise the show at the Whitney, sold for substantial amounts of money, and he makes no identification at all of the underlying work? Nothing? I mean not a handshake, not a -- I've contacted Jim Krantz because he was a member of our association and spoke with him. He unfortunately he did not own the rights to the image because he'd shot for a tobacco company who insisted on work for hire. So he didn't have the rights to the work and the tobacco company really didn't care what Prince did with it as long as they spelled Marlboro correctly. So there was no issue there so Prince couldn't bring any action, I mean Krantz couldn't bring any action. But you would think there would at least be some acknowledgment of the underlying work at the minimum. >> Brad A. Greenberg: I mean that goes to when Paul was talking he talked about how he didn't really see how this would benefit authors and I think that raises a question about whether or not the moral rights would be transferrable. If they're transferrable, I think you run into maybe the same sort of problem we had with the reversion rights before the '76 act. If they're not transferrable maybe it looks more like the -- but they are waivable so you don't get the termination value. But the question there the sort of by what Gene was saying is if the owner of the copyright doesn't have the interest in making sure the work is attributed to who did it, who can step in if not the artist? >> Eugene Mopsik: Go ahead. >> Brad A. Greenberg: You don't care ^M00:29:06 [ Laughter ] ^M00:29:10 >> Paul Alan Levy: This goes to the question of whose interests are served by the moral rights? If they're freely waivable, then all you're doing you're not providing any real right against the people whose use is based on permission. You know traditional copyright exploiting industries, you're only getting rights against downstream users and so then the question is -- is the benefit that's secured by creating the right worth the imposition on the later users? I think you need to -- you have to make an argument for why the benefit is needed. >> Brad A. Greenberg: I think Nancy has the argument. >> Paul Alan Levy: What? >> Nancy E. Wolf: I'm thinking you're putting it in a category where there's again winners and losers and us and them, but I think the impetus for moral right it's a personal right that doesn't attach to a personal work, but it's a right of an artist to always say, you know, that's my work. It belongs to me. I mean I still remember doing contracts where an illustrator worked for like a large animation company and they were told they weren't even allowed to put the work in their portfolio. And I said you know you have a right to say you did that. But if there was a persistent attribution, you wouldn't worry about the downstream users and that right of the artist to always feel attached to say I created it. That when you -- an artist creates a piece of work -- and I tried Art Students League so I know the difference between what I can do and my clients. It's a part of them. They are so attached. I mean I have clients it's almost like they're children. I had one of the artists from when Prince did the Instagram one who contacted me and his work was shown on art galleries as well. So I think if we look at benefit  I think the benefit to the artist is a benefit to the public as well. It isn't that there's a sharp divide that somehow if you benefit an artist you've hurt the public because we're all artists. In this community of internet we're users, we're creators, we're a little bit of both, and I think making those bright lines, we miss having a dialogue. >> Paul Alan Levy: I think that's great but you know when you create a right that's enforceable in the courts, that means you have the potential for litigation against an individual who doesn't have regular contact with lawyers, for whom if they have to spend $15, $20,000 to defend themselves for something they put on their Facebook page, they've already lost. So if you -- I come back to --  >> Nancy E. Wolf: But most artists have never gone to court. They can't. The only one who goes to court is Prince. He sells his work for a million dollars. I mean, what the artists are really looking for now is the copyright small claims court where something could be resolved for the actual value of the license where it wouldn't be so burdensome. >> Eugene Mopsik: The right holders are primarily disenfranchised right now. They can't bring $150, $200,000 federal copyright case. You know the average photographer is just unable to do that. >> Paul Alan Levy: You're saying the right holder or the creator? >> Eugene Mopsik: Well for me most of my photographer friends are still the rights holder. And the creator. >> Brad A. Greenberg: So if I can turn the direction a little to where contract law seems to be doing more work there are well, there's at least two areas. One is and we can start with well, there's the director who can retain final cut authority because they have the bargaining position or you have the editor who gets credited because it's part of the guild agreements. The question here isn't what is the source of the right but how important are those rights as provided for by contracts and guild agreements? How important are they to authors? >> Eugene Mopsik: Well, I mean I'll speak as creator and author and not as an advocate that from my standpoint and what we you heard earlier from creators, I think you know creators do want to be recognized for the fruits of their labor and they want to see their name, you know, associated with their good works and it's just part of the creative process I think. >> Nancy E. Wolf: I'll speak for the film lawyers in my office who I get to do all their fair use reviews but I can tell you that credit is significant and I think as one of those terms that gets it's importantly negotiated and where it is and the placement and the size it matters because that's your that's your career that's your portfolio. You're going to make your next movie based on the success of the one before and again having the acknowledgment for the fruit of your labor is I think a significant moral attribute but also financial ends up being. >> Eugene Mopsik: Yeah. Let me just say, so I don't know how many of you watch television in December, you know at the end of the year I always seem to have the TV on when the Today -- I think it's the Today Show -- they do this year in photos on the morning and they show 10, 15 of what they say are the most fabulous images from the past year. Invariably those images have no attribution. They don't tell you who the photographer was who took these fabulous images. And as my mother would say they all sit there and kvell and this and that and what a beautiful photograph how great it is and this and that but they don't tell you who took the picture. I mean it's incredible. I mean how hard is that? >> Brad A. Greenberg: Well, what role then, to add to that question, does private ordering play for these authors? I mean do they look at copyright law and say copyright law doesn't have an attribution right but I know I can get it from contact or do they just not even think in terms of copyright law when it comes to attribution or placement and they're really thinking in terms of deals? >> Nancy E. Wolf: I think it's bargaining power and yeah if you're at a certain level you can require attribution. I mean if we were just talking about photography, typically if it's something in advertising it's never been the norm and you're no, you know -- even I think Annie Leibovitz won't get credit in an ad. She'll get it for the cover of a Conde Nast magazine but not for an ad. >> Katherine C. Spelman: I would say it's an enfranchisement tool. I would say that particularly for those who work on murals that they get it and they really understand it and it became a civics class now in the Mission District of San Francisco. It's actually in their curriculum. These kids really care about it. This is, they think it's just, so they're really enfranchised because of it. >> Brad A. Greenberg: So that's really interesting because in '96 this Office did a study looking at VARA and the first I think five years of it and one of the things I remember from the study was that something like half of or I think half of visual artists didn't know that your right could be waived -- rights could be waived and something like a third or another half had said that when they -- when they had blanched at the waiver provision it killed the whole deal. Has the climate then changed for visual artists? Do they feel like they have more bargaining power to insist on certain terms or is it are we in the same place? >> Eugene Mopsik: I'd say they have less leverage now than they've ever had in the marketplace because the publishers are scrambling for every dollar they can get out of the proposition and the rights package that photographers have been asked to sign is significantly expanded now because  you're asked to give rights not only -- I mean it used to be 20, 30 years ago, you know, it was a North American, one time, first publication prints. Now it's you know on any platform now known or envisioned or what's the term they use? >> Brad A. Greenberg: Later developed. >> Nancy E. Wolf: Later created. >> Eugene Mopsik: Later created, you know it's all forward thinking and --  >> Brad A. Greenberg: Throughout the universe. >> Eugene Mopsik: Right, throughout the universe. And you've got -- it leaves you, it leaves the creator with nothing. It leaves you with no ancillary rights. >> Brad A. Greenberg: Kate, is the same true for muralists and sculptors? >> Katherine C. Spelman: No. What I'm seeing is there's this break here that seems pretty clear that those people who are dealing with photography which is digital ab initio is it's a much more volatile problematic area than what people are doing when they are as a community group painting on walls or as an individual painting on walls or perhaps in sculpture as well. But I'm seeing is schism and I'm wondering what the other speakers think about this. Nancy? >> Nancy E. Wolf: Well, I think with sculpture in fact I was helping a UK lawyer look at a commission for a large sculpture agreement for a real property owner in Philadelphia and I was like so surprised. I didn't see any moral rights clause or any waiver because I think a real estate lawyer did that contract and had no idea. I could just tell the way it's written. But I think if you're doing something for a large museum, they've read all the cases that deal with moral rights and they know how to write contracts that, you know, protects the interests if something needs to be moved or it's not finished or altered. >> Sonya Bonneau: MASS MoCA did not have a contract with Buchel. That was -- that, the judge was incredulous. >> Nancy E. Wolf: Right. So I think they've learned from the MASS MoCA that museums need contracts and they learned that they should ask for waiver and I think if you don't agree, you might not get a commission. ^M00:38:51 >> Brad A. Greenberg: So it's not just the type of artist but also the type of contracting party, where the schisms are. I think our last question that I'll ask before we open it up to the audience is that we typically think of these probably because Berne requires attribution and integrity rights but there are other moral rights. And I think there's an analogue maybe in the digital age to the right of withdrawal, which is something like a right to opt out or a right to insist on non-use. The direction though the fair use doctrine has moved and the Google Books search denial of cert today I think really hammers this home that this is a question for authors is, how do I opt out of these systems? Does that seem like that should be part of a moral rights suite? Is this something authors are thinking of or wish could think of? >> Paul Allen Levy: A right to be forgotten. >> Brad A. Greenberg: I don't want to use that term because it's not. It's not, right? This isn't like fully removing your work from the marketplace but it's a right to say I don't want to be part of that that new distribution system. >> Eugene Mopsik: Well, I mean the problem as Yoko pointed out, you know, a company like Getty is able to put certain limitations on works and the most common ones have to do with liquor and smoking. But beyond that, you know, once once the work is out there and the identifying information is no longer with it, you have no control. And that's when I've listened to people talk about contracts all day but yeah contracts are great but it ultimately it means you've got to be able to control the distribution of the work. >> Brad A. Greenberg: And that's a clear threshold problem but assume that wasn't an issue. Just assume in a utopian universe that you could  you always knew where your work ended up and you knew if somebody was using it. >> Eugene Mopsik: Go ahead. >> Eugene Mopsik: Yeah. Well, one thing I see one sort of bump in the road which is I think once something is considered or would be considered a fair use, then it's considered an authorized use and I don't know there there might be a conflict between the right to have a work removed particularly if someone has added a lot of substantial creativity to it, to the new work. I think that might be difficult if it was the work unaltered, you know, it's always going to be cash somewhere. I think in that way you can compare it a little bit to the right to be forgotten. In Europe where the original article will never disappear but the links to it go down. I think it's very hard to wipe clean the web. >> Paul Alan Levy: It's awfully hard to think of enforcing anything like the right to be forgotten in a country that has a first amendment. >> Brad A. Greenberg: Uhhuh. >> Paul Alan Levy: And I think that's the problem with the right to be withdrawn to the extent that it's a fair use. >> Brad A. Greenberg: Yeah. >> Paul Alan Levy: Or maybe you don't have a fair use provision but then you're just going to be litigating the first amendment issues when you're asking a court to order the removal of something. >> Brad A. Greenberg: Yeah. I guess we have time for one last follow up to that. So Paul just to follow up on your first amendment discussion, some of the a lot of the patchwork comes from outside of copyright law where the fair use doctrine doesn't necessarily or doesn't apply. What role there does the first amendment do? >> Paul Alan Levy: Well, you're -- certainly in the right of publicity area you end up applying the right of fair use by analogy and to the extent that you don't have the right of fair use or even backing up what there is, the first amendment has very broad application in right of publicity cases certainly outside the purely commercial exploitation situations. But there is a first amendment right to engage in commercial speech and then there's the distinction between having it in an advertisement or having it in a product that's sold, and yet then you have protection for what's considered to be noncommercial speech in a commercially sold work like the advertisement in the New York Times for which the New York Times was held not liable. In New York Times v. Sullivan, this was treated as noncommercial speech even though it was ad, so the first amendment has ample role to play in these sorts of situations. >> Sonya Bonneau: Although I think that's why Michael Jordan was successful and he had several lawsuits and it -- because commercial speech gets less protection under the first amendment. That's a big question of is it commercial speech or not and if courts get into this classification system where they have to say what a given work is. Is it art, is it advertising? >> Paul Alan Levy: Right. >> Brad A. Greenberg: Great. Well I think now we're going to open it up to the floor so if you have questions just give me a little hand and I can tell Donald or someone else to bring you a mic. Yeah, Michael Wolfe  ^M00:43:56 >> Michael Wolfe: Thanks very much for that. I greatly enjoyed the panel. I'm going to preface this by saying that my organization, Authors Alliance, is in many ways is also sympathetic to copyleft ideas, but we also endorse the idea of an attribution right. But all the same I do find Paul's earlier point an important one and I think Danielle made the point before him regarding the real source of attribution controversies being from downstream licensed uses, so I wanted to sharpen that a little bit for the panel and see if we can't all address it and find out whether there's something else there. But is there -- assuming a waivable right, is there, is there a practical value for authors from a waivable attribution right if it's only downstream licensed uses that is the problem? And if it's not and if there's more than downstream licensed uses that are the problem, let's say Richard Prince for example, although I think he is the exception rather than the rule, where will there been an instance of an attribution controversy that is not also an infringement of the rights of copyright and remediable from that avenue? >> Brad A. Greenberg: Any takers? >> Paul Alan Levy: I mean certainly to the extent particularly when you're dealing outside the range of form contracts with a huge commercial enterprises with which a creator is dealing, a writings requirement and an explicit writings requirement at least provides a point of discussion and sort of conscious giving up or conscious taking and I think requirements of clear and unmistakable waiver, for example, play a large role in many areas of law and I think they're valuable. >> Eugene Mopsik: Just one brief comment. What you commented on the difference between or the ability to remedy through if something were a copyright infringement that you could in fact bring a case. And I go back to my earlier comment that by and large that's not a remedy. At least not a remedy for a photographer who makes 30 to $50,000 a year who most probably didn't register his work to begin with, there's no remedy for those myriad of uses that are being made of his work. >> Michael Wolfe: That's a fair point from a procedural stand point but would this would the moral right be more accessible to the author in that instance? I suppose there will be follow-up. >> Nancy E. Wolf: Well, I guess it depends what you mean by accessible. If an individual author has to try to locate all these downstream users, most of the problem is it's the impossibility of it. They could be anywhere in the world. How do you go after them? I think that's been a lot of the problem with anything that goes viral. I mean if you, you know, take something so you've made another copy rather than do what Getty Images does and allow you to embed where you go back to the source, it's really, you know, an impossibility to whether it's under moral rights or copyright infringement really to enforce most of those downstream uses. >> Eugene Mopsik: And I'll just say about if in fact the moral right is waivable, I would venture to guess that when it comes down to a negotiation with a photographer who's faced with what I call the 30 day horizon which is the next billing cycle and he's got to pay his bills and worried about rent and everything else, he's going to give up that right. No question. >> Sonya Bonneau: But if the law gets too complicated then it can have the chilling effect on for lack of a better word amateur users who are using the web just like the big commercial players. And so we have to think about how accessible the legislation would be to use. >> Eugene Mopsik: Yeah, we're not chasing the amateurs. >> Jane Ginsburg: If it's not inappropriate, I'd like to venture an answer to the question, which is one big difference is between an infringement action and a moral rights action is if the authors doesn't have the economic rights any more, the author doesn't have an infringement action but the author could is still have a moral rights action. >> Nancy E. Wolf: Good point. ^M00:48:33 >> Jane Ginsburg: And I'd like to make another suggestion regarding downstream uses which may require legislation but I have to think about if you could do it without legislation which is, as Nancy says, nobody wants to go after downstream users. But what about the platforms? Could there been a 512 type claim based on attribution? So in other words if there's no attribution on the content that has been placed on the platform, that would be the basis to either have it taken down or attribution added. So that might be a way of rendering enforceable and attribution right which is distinct from the economic right. >> Nancy E. Wolf: And if there were persistent identifiers that readily identified the owner of a work, then maybe the issue of all this red flag knowledge would raise its head again. I mean if you knew what was getting uploaded on your platform was not by the same name as who was uploading it -- >> Jane Ginsburg: It would be interesting to --  >> Nancy E. Wolf: Interesting. >> Jane Ginsburg: To construct all of this, also I'll point out however that the, at least under CMI, it's the rightsholder. And again the rightsholder is not necessarily the author, so you would have to have a basis for the author to protect that robust information. >> Eugene Mopsik: The plus system does that. >> Nancy E. Wolf: Yeah, the plus system is trying to do that right now. >> Eugene Mopsik: It recognizes both the rights holder and the creator and licensors, licensees. >> Jane Ginsburg: Right. But I mean in addition to the technical basis, the legal basis. >> Eugene Mopsik: Right. >> Brad A. Greenberg: Mickey, you've got the mic? >> Mickey Osterriecher: Yeah. Just we've been talking about attribution rights versus economic rights but what we're seeing especially with photography is people see your name and then they contact you and say well, we don't have a budget but we'll give you a credit. Do want to talk about that kind of reverse problem? >> Eugene Mopsik: Yeah, that's, you know, the attribution on the one level helps build the brand and so it you know helps the photographer become identified. At the same time it certainly doesn't pay the bills directly and there are as Mickey points out, numerous cases I had -- I mean many years ago I did photographs of the lighted Ben Franklin bridge in Philadelphia and the architect calls me up and he had the opportunity to license these images to use for his purposes and when he found, you know, I give him the fees for it and he didn't want to pay. He didn't want to do anything. Well, then two years later I get a call from AIA they're giving this man some life achievement award and they want to use my photographs as part of the presentation thanking him. And so I said you know he had the opportunity to license these images and he turned it down. I said what do you have in your budget to use this image in your presentation? And they said well we don't have any money but we'll give you a credit. And I said to them look I have to tell you I make my money through licensing images and through creating photography and quite frankly I'm not an architectural photographer. I did these images of the bridge just because it was something that I happened to like, so I did them on spec and then sold them to a magazine, and I said that that credit has no value to me. I said I'm sorry we can't eat the portfolio piece. It doesn't work. >> Brad A. Greenberg: We've got time for one more question I think. Yeah. Yeah. >> I just wondered, given how the CMI information is stripped from images, do we really want to put an affirmative duty on fair users to be able to have, to then find out who the author is in order to give them attribution? >> Paul Alan Levy: Certainly from a litigation standpoint, as somebody who represents individuals I would worry about that. Also wondering what are the remedies for having failed to do that -- if it's simply injunctive that's one thing. If it's damages and attorney fees it's very different, and yet if you don't have the monetary remedies what's the disincentive to do it? >> Brad A. Greenberg: You know if I could ask to follow-up to just sharpen that question, what though is the real harm to a user and if they're going to use somebody else's photo or someone else's music or someone else's whatever that they either use something that they know they can identify the author and credit that author or they don't use the work. Like I guess I don't -- >> Paul Alan Levy: So I'm putting up a photograph on my Facebook of course Facebook requires me to sort of verify that I've got the authority, but I think for the small user knowing actually how to stick that stuff in --  >> Brad A. Greenberg: Sure. Well so we -- but that can be the reasonableness a requirement, right? Similar to with broadcast where it's not reasonable to include the attribution maybe there it's, you know, for the user who it couldn't make sense or there's nowhere to put it or what not. >> Nancy E. Wolf: There is a free web site called TinEye and you can put the URL with an image in and it will find you all the matches. You may not get the one that actually is the owner, but it is really fast and really easy. So I think this question now it might not be reasonable but I can see a future where this could be much easier. >> Sonya Bonneau: There would also be a question of how the secondary user used it and how much of it, all the questions that come up in fair use might complicate, well when is the right of attribution triggered? Is it with Blanch v. Koons, like how much of that photograph you know can and so when can you demand an attribution right? Could be complicated with remix. >> Brad A. Greenberg: Sure. >> Nancy E. Wolf: Creative Commons has an attribution right on almost all their licenses which are noneconomic. >> Brad A. Greenberg: The default used to be no rights reserved but they found that, I don't know, 97 percent of people opted for the credit created by. Yeah, so I guess on that note I think we have a ten-minute break now. If I'm wrong on that someone correct me. But 15 minute break and then we're back in here I guess at 3:30. >> This has been a presentation of the Library of Congress. Visit us at loc.gov.