Artists Across Borders

Art knows no borders. If only the same were true for artists’ rights. As a recent Italian court case reminds us, American moviemakers are better protected against unauthorized alterations to their films abroad than here on their native soil.

In October, an Italian court ruled that TV Internazionale, an Italian television network, was wrong to have aired a colorized version of legendary American director Fred Zinnemann’s The Seventh Cross (1944). Zinnemann, who won Best Director Oscars for From Here to Eternity (1953) and A Man for All Seasons (1966), denounced the broadcast of the colorized copy of The Seventh Cross when it first aired on Italian TV in 1996. Despite his complaints, TV Internazionale ran the movie a second time in 1997. Sadly, Zinnemann passed away that same year. But in 1999, his son Tim decided to sue TV Internazionale for breach of his father’s moral rights.

Moral rights—as defined by the Berne Convention for the Protection of Literary and Artistic Works, drafted in 1886 and signed by the United States in 1989—are the artistic rights of the author of a work, independent of the financial rights of the copyright holder. In the words of the Berne Convention, even if the author has sold his or her copyright, it is within the artist’s moral rights to “object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

The Italian court found that Fred Zinnemann made a conscious artistic choice to film The Seventh Cross in black and white (Technicolor had been around for decades) and that the colorization of the film clearly harmed his artistic integrity. In addition to banning TV Internazionale from ever showing the colorized version again, the judge ordered the station to destroy all colorized copies of the film and pay damages.

Tim Zinnemann was supported in his case by the Artists Rights Education and Legal Defense Fund Council, the legal advocacy wing of The Film Foundation, an organization founded in 1990 by Martin Scorsese to preserve, restore and protect avant-garde and classic films from being lost, damaged or destroyed.

Elliot Silverstein, a veteran TV and film director who chairs the board of directors of the Artists Rights council, cheers the Zinnemann decision as an important victory for moviemaker rights, but finds it painfully ironic that Zinnemann would have lost the very same case had it involved a U.S. television station. Even though the United States signed the Berne Convention, says Silverstein, America differs from Europe in its understanding and enforcement of moral rights.
“U.S. law defines the copyright owner as the author,” says Silverstein. “Therefore, the copyright owner has the moral rights described in the Berne Convention, not the individual.”

Under U.S. law, only “fine art”—defined as single works of original paintings, drawings, prints, sculptures or works in signed and numbered editions that do not exceed 200 copies—enjoys moral rights protection, explains Los Angeles entertainment lawyer and author Mark Litwak. Litwak says the fine art clause was “included in the Visual Artists Rights Act of 1990… so the U.S. could join the Berne Convention, although it is questionable whether this fulfills all the requirements of Berne.”

The bottom line for American moviemakers, says Silverstein, is that authorship can be bought and sold here like any other commodity. “The entity that claims to be the author may never have seen the work,” he adds. “The true author of the film—the director or the writer—receives no moral rights protection at all. Their words can be changed as much as the copyright owner likes and the name of the director and the writer are still attached.”

Spencer Tracy and Hugh Beaumont in Zinnemann’s The Seventh Cross (1944)

Furthermore, says Silverstein, the Berne Convention compels every member nation to “give to foreigners no less than the rights it gives to its own citizens.” Zinnemann won in Italy because he was afforded the same moral rights as any citizen of Italy. “However, in the U.S., since there is no protection of moral rights for individuals, a foreign director coming here gets no less than the U.S. grants its own citizens, which is zero.”

Litwak thinks moviemaking receives less protection because people view it as a collaborative creative process where no one “author” is responsible for the work, as compared to fine art. “I would be surprised if a producer brought home a Picasso he bought for $100,000 and then announced to his spouse, ‘Honey, Picasso was good, but I think this picture needs some more blue. Where’s the paint?’” says Litwak. “But the same producer who paid $100,000 for a script doesn’t hesitate to take out his pen and make changes to the writer’s work or hire another writer to ‘fix’ the script.”

Silverstein agrees that moviemaking is a collaborative process, “but there’s a guiding force, a signature that is placed on the film by the director, by the writer,” he says. “You see it in the commercials now, ‘From the director of…’ The fact is they attribute true authorship to the director, although legal authorship is denied.”

There have been attempts by the Directors Guild of America to lobby members of Congress to change U.S. laws to meet European standards of moral rights, but so far nothing has worked, says Silverstein, who served on the DGA’s board of directors for over 25 years. Prior to the Zinnemann decision, the most high-profile moral rights case concerned a colorized version of John Huston’s The Asphalt Jungle (1950), which was barred from theatrical distribution in France by a French court.

Silverstein believes the lack of moral rights protection in the U.S. all but invites copyright holders to cut, colorize and otherwise manipulate films for commercial reasons. Moviemakers don’t have a legal leg to stand on, so no cases go to court. “Everybody’s conditioned to accept the egregious,” Silverstein says, “so people don’t expect anything better out of the United States—at the moment.” MM