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The Fairness and Morality of French and American Law Compared Jean-Luc Piotraut*

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The Fairness and Morality of French and American Law Compared Jean-Luc Piotraut* AN AUTHORS’ RIGHTS-BASED COPYRIGHT LAW: THE FAIRNESS AND MORALITY OF FRENCH AND AMERICAN LAW COMPARED JEAN-LUC PIOTRAUT* I. INTRODUCTION...................................................................549 II. FAIRNESS AND MORALITY WITH RESPECT TO JUSTIFICATION FOR COPYRIGHT PROTECTION .............................................553 A. The Purposes of Copyright..............................................553 B. The Recognition of Authors............................................557 C. The Nature of Copyright ................................................562 III. FAIRNESS AND MORALITY WITH RESPECT TO ACCESS TO COPYRIGHT PROTECTION ....................................................566 A. The Subject Matter of Copyright .....................................566 B. The Formalities Issue .....................................................573 C. The Ownership of Copyright...........................................576 IV. FAIRNESS AND MORALITY WITH RESPECT TO THE SCOPE OF COPYRIGHT PROTECTION ....................................................580 A. Economic Rights............................................................581 1. Contents of Rights ................................................581 2. Limitations on Rights ...........................................585 B. Moral Rights.................................................................595 1. Types of Rights......................................................596 2. Main Features .......................................................609 V. CONCLUSION ......................................................................615 I. INTRODUCTION In 1982, Patrick McCarthy published an essay about the famous French writer, Albert Camus, entitled Camus: A Critical Study of his Life and Work. It appeared to be so critical of Camus that Camus’ heirs brought a suit against McCarthy’s publisher, * Jean-Luc Piotraut is a Maître de Conférences of Private Law at the Paul Verlaine University of Metz (France). In 2004, he was a Visiting Professor of Law at Chicago-Kent College of Law. Professor Piotraut would like to thank, in particular, Graeme Dinwoodie for his immensely valuable comments and suggestions. He is also deeply grateful to Susan Adams, Sarah Harding, Christian Hoffmann, and Ron Staudt for their kind help and support. This article, however, does not necessarily reflect their views. 549 550 CARDOZO ARTS & ENTERTAINMENT [Vol. 24:549 Hamish Hamilton Ltd. Before publishing McCarthy’s work, Hamish Hamilton had also been Camus’ publisher in the United Kingdom. Although the book contained neither abuse nor libel, the Paris District Court found for Camus’ heirs and ordered damages against Hamish Hamilton on the sole ground that the publisher had infringed upon the prominent author’s intellectual property rights.1 In another case that arose a few years later, the Paris District Court entered a similar judgment in a copyright case against a French publishing company. The Denoël Publishing Company had added, on its own initiative, an unauthorized preface to French version of Michael Moritz’ book, The Little Kingdom: The Private Story of Apple Computer. Defendant Denoël had been licensed to translate the book and sell it in France. The disputed preface contained only neutral additional information furnished by the chairman of Apple’s French subsidiary. Nonetheless, the court held Denoël liable for infringing Moritz’ literary and artistic property rights.2 These two decisions are not unusual under French case law and have not been criticized by French scholars. Both of them illustrate the remarkably broad protection conferred to authors by French copyright law, particularly when compared to the United States jurisprudence in the same area. This is all the more interesting considering that the actual infringement of the plaintiffs’ intellectual property rights was questionable in both cases. The more recent decision, Dastar Corp. v. Twentieth Century Fox Film Corp.,3 illustrates the very different stance that American and French copyright law take. In Dastar, the United States Supreme Court denied a copyright claim made by a film producer, despite clear evidence of original ownership of its work. Twentieth Century Fox Film Corporation, which had been granted exclusive television rights in General Dwight D. Eisenhower’s World War II memoirs, Crusade in Europe, produced a television series based on the book. After the copyright on the television series had expired, Twentieth Century Fox reacquired the television rights in the book, including the exclusive right to distribute the series on video. A few years later, Dastar released a video set, entitled World War II Campaigns in Europe, which was made from Twentieth 1 Tribunal de grande instance [T.G.I.][ordinary court of original jurisdiction], Paris, 1e ch., Feb. 15, 1984, REVUE INTERNATIONALE DU DROIT D’AUTEUR [hereinafter R.I.D.A.] 1984, 120, 178. The case was tried in a French court pursuant to a jurisdictional clause contained in the publishing contract. 2 T.G.I., Paris, 1e ch., Nov. 25, 1987, J.C.P. 1988, I, 21062, note Edelman. 3 Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003). 2006] AUTHORS’ RIGHTS 551 Century’s original television series. Dastar marketed the set as its own product, without mentioning that it had originally been a Twentieth Century Fox product.4 The United States Court of Appeals for the Ninth Circuit ruled for Twentieth Century Fox under the unfair competition provisions of the Lanham Act, concluding that Dastar had committed a “bodily appropriation” of its series and had thus engaged in “reverse passing off.”5 The Supreme Court, however, reversed the Ninth Circuit, holding that no false designation of origin was shown with regard to the producer of tangible goods made from a work whose copyright had expired, as this mere absence of information was hardly prejudicial to consumers’ interests. The Dastar decision denied protection to a typical component of literary and artistic property rights and many American academics such as Professor Jane Ginsburg have criticized the decision severely.6 American and French copyright law scholars share the view that French law is more protective of authors’ rights than American law. American copyright is said to have a more utilitarian focus, and to be more materialistic than French copyright law.7 For instance, Russell J. DaSilva notes that “[t]he French droit d’auteur (author’s right) is a concept far broader than American copyright . While United States copyright seeks to protect primarily the author’s pecuniary and exploitative interests, French law purports to protect the author’s intellectual and moral interests, as well.”8 For DaSilva, on the whole, authors and artists’ rights “receive less respect under the American system than they 9 do in France.” 4 Id. at 25-27. 5 Twentieth Century Fox Film Corp. v. Entm’t Distrib., 34 F. App’x. 312, at *4 (9th Cir. 2002), rev’d, Dastar, 539 U.S. 23 (2003). Reverse passing off may occur when a producer misrepresents someone else’s goods as his own, which engenders consumer confusion as to source. 6 Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law, 41 HOUS. L. REV. 263 (2004) [hereinafter Ginsburg, The Right to Claim Authorship]. See F. Scott Kieff, Contrived Conflicts: The Supreme Court Versus the Basics of Intellectual Property Law, 30 WM. MITCHELL L. REV. 1717, 1725 (2004). Other commentators, however, approved of the Supreme Court’s decision. See, e.g., Ruth L. Okediji, Through the Years: The Supreme Court and the Copyright Clause, 30 WM. MITCHELL L. REV. 1633, 1636 (2004); Kurt M. Saunders, A Crusade in the Public Domain: The Dastar Decision, 30 RUTGERS COMPUTER & TECH. L.J. 161, 171-73 (2004); Lynn McLain, Thoughts On Dastar from a Copyright Perspective: A Welcome Step Toward Respite for the Public Domain, 11 U. BALT. INTELL. PROP. L.J. 71, 72 (2003). 7 See, e.g., Jane C. Ginsburg A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 TUL. L. REV. 991, 996 (1990) [hereinafter Ginsburg, Tale of Two Copyrights]; Roberta R. Kwall, Copyright and the Moral Right: Is an American Marriage Possible?, 38 VAND. L. REV. 1 (1985). 8 Russell J. DaSilva, Droit Moral and the Amoral Copyright: A Comparison of Artists’ Rights in France and the United States, 28 BULL. COPYRIGHT SOC’Y 1, 3 (1980). 9 Id. at 51. 552 CARDOZO ARTS & ENTERTAINMENT [Vol. 24:549 This opinion, that French law is more focused on the protection of authors’ rights than is American law, is widely shared by French academics. For example, Professor Linant de Bellefonds wrote that France’s droit d’auteur protects authors, while “Anglo-Saxon copyright laws . pay more particular attention to the exploitation of the work, pushing man into the background.”10 According to another prominent French scholar, Bernard Edelman, in the U.S. copyright system “the author seems to be only a merchant of his work and he keeps a proprietor relationship with it . The [American] copyright system is therefore a purely economic legislation.”11 In the almost unanimous opinion of the global community of copyright law scholars, therefore, it appears that French law is superior to American law in terms of fairness and morality to authors, given that fair usually means just, legitimate, and in conformity with accepted standards, while moral means based on a sense of right and wrong according to conscience, or adhering to conventionally accepted standards of conduct. Upon examination, it becomes clear that
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