[author: James P. Flynn of Epstein Becker Green]
I don’t care what you say anymore this is my life
Go ahead with your own life leave me alone.
—Billy Joel, My Life
People often do quite well financially selling their life story. But stop and think for a minute what that statement means — “selling their life story.” The complex personal investment each writer makes in his/her craft and the further psychological dynamic of autobiography have each seen repeated comment and exploration. See Calvin D. Peeler, From The Providence Of Kings To Copyrighted Things (And French Moral Rights), 9 Ind. Int’l & Comp. L. Rev. 423, 426 (1999)(authors’ moral rights “evolved from a societal concern about individual author’s and artist’s personality and reputation investments as they are exhibited through their creative work”); C. R. Romiţan, The Right Of Authorship On A Work, 1 AGORA International Journal of Juridical Sciences 155, 158 (2014) (“The authorship of a work belongs only to individuals, because only they have the specific qualities of the creator, namely: intelligence, personality, sensibility, faculty to create, to think, to formulate ideas and also to expose them in an original and personally form. In order to recognize the authorship of a work, the law does not require any condition because it arises from the mere fact of creating the work”); see also Livingston, P. (2016). “Authorship.” In N. Carroll & J. Gibson (Eds.), The Routledge companion to philosophy of literature (pp.173-183). New York: Routledge, at 14 (autobiographies convey perspectives beyond what is “manifested in the texts alone”); Burke, P., “Representations of the Self from Petrarch to Descartes,” pp. 17-28 in Porter, R., (1997) Rewriting the self: histories from the Renaissance to the present, London: Routledge, at 17 (“‘man became a spiritual individual and recognized him- self as such’. The rise of self-awareness or subjectivity was reflected by the rise of autobiographies”). Does a life story sold cease to be one’s own life? Is it no longer an individual’s personal history? Does it become someone else’s life? When I remember and describe my own history in my own language and way, has not my history somehow merged with my expression of it? While one might ask if I can get it back, is it not just as natural for me to say why should I have to do that, as my story has never left me? I mean, it is mine, isn’t it?
Such questions have been raised in real life courts (including a recent one in a New Jersey court and those on which basketball is played) as well as in fiction ranging from Disney to a Seinfeld episode or two. Given this blogger’s penchant for pop culture conduits into intellectual property law issues, a reader could reasonable anticipate that I have given up the formality of examining real cases. Perhaps I have done so in favor of an extended riff on what could have been Kramer v. J Peterman, et al. That would have been a possible fictional detour open to Seinfeld after the Van Buren Boys episode (in which Kramer sold all the stories he had accumulated over a life time for just $750) instead of the fictional course actually taken, the Peterman reality tour in the Muffin Tops episode.
But I have not given up on real cases. I am instead writing about a case now winding its way through the United States Court Of Appeals for Third Circuit, TD Bank NA v. Vernon W. Hill, II. In that case, Vernon Hill, a former banking executive, was found by a federal district court to have infringed plaintiff’s copyright and breached his contract with plaintiff by using in his own autobiographical tract material that he had written for any earlier, ultimately unpublished autobiography. The rub, naturally, is that the earlier manuscript was done as a work for hire for Commerce Bancorp, his then employer.
Why write about this case? I mean, frankly, as a matter of US law the result seems pretty straightforward, and largely compelled by contract law regardless of copyright law or other intellectual property principles. But just as frankly, the case presents other interesting questions. It presents questions about the nature of personality (legal and philosophical), about what legal systems outside the United States enforce as moral rights (or droit moral), about what the United States’ belated acceptance of the Berne Convention has meant and should mean, and about whether Vernon Hill might have had greater leverage if he were in court in, say, France.
TD Bank NA v. Vernon W. Hill, II:
Vernon Hill founded, and acted as CEO of, Commerce Bancorp. From 2006-2007, during his time as CEO of Commerce Bank, Mr. Hill worked on a manuscript entitled “Fans, Not Customers: Creating Super Growth in a No-Growth Industry,” also known as “The Power of Wow” (the “2007 Manuscript”). Commerce Bank also engaged Robert Andelman, a professional business book writer, to write the 2007 Manuscript. Mr. Hill separated from Commerce Bank in 2007, at which time the 2007 Manuscript remained unpublished. After leaving Commerce Bank, Mr. Hill founded Metro Bank in the United Kingdom. Mr. Hill thereafter engaged Mr. Andelman to serve as co-author, alongside Mr. Hill, of a book entitled “Fans! Not Customers: How to Create Growth Companies in a No Growth World” (the “2012 Book”). In the fall of 2012, the 2012 Book was published by Profile Books Ltd., listing as co-authors Mr. Hill and Mr. Andelman. TD Bank contended that 16 percent of the material in the 2012 Book infringes on its copyright in the 2007 Manuscript. The content of the alleged infringing text includes business ideas and philosophies, terms that Mr. Hill used at Metro Bank, biographical facts from Mr. Hill’s life, facts regarding other successful companies, descriptions of appreciative customers, feedback about the banks, and factual stories involving Commerce Bank. The parties agree that Mr. Hill did not attempt to paraphrase the allegedly infringing language, and in fact copied it verbatim.
The parties did not agree as to whether the 2007 Manuscript was in essence about Commerce Bank or about Mr. Hill’s life and business experience and ideas. The 2007 Manuscript described the business model used by Commerce Bank that Mr. Hill had advocated throughout his career. Mr. Hill had previously discussed in public speeches and interviews many of the ideas, business concepts, and Commerce Bank anecdotes contained in the 2007 Manuscript. In addition, some of the content contained in the 2007 Manuscript was also provided to Harvard Business School for use in a case study on Commerce Bank. Further, the parties agreed that Mr. Hill was a co-author of the 2007 Manuscript, but disputed whether he was a co-owner. This dispute existed notwithstanding at least one document Hill signed with the would-be publisher of the 2007 Manuscript stated that Hill as “The Author is the sole and exclusive owner of all rights granted to the Publisher in this Agreement and has not assigned, pledged, or otherwise encumbered the same.”
Ultimately, Hill lost on summary judgment in a July 27, 2015 opinion, and later on June 14, 2016 had a permanent injunction entered against him. Hill appealed to Third Circuit, and oral argument was held on October 22, 2018. An opinion is not expected for several months.
Hill’s Claims Implicate A Number Of Potential Rights
As an amicus brief put it (at page 13), “Mr. Hill wrote the language that he borrowed. As such, an injunction not only effectively chills Mr. Hill from speaking on matters of his area of expertise, but also prevents him from using his own expression.” While that statement could set the stage for arguments ranging from First Amendment ones to an appropriate understanding of the integrated documents underlying this specific case, the intent here is accept as the district court found that Mr. Hill is an author and not an owner of the 2007 Manuscript. Even if that were the case, however, Hill’s claims implicate the concept of the moral rights of authors.
What are the moral rights of an author?
What does it mean to be an “Author”? In the United States, it means something somewhat less than it does in many other countries because the moral rights of authors are not recognized in the United States to the extent that they are elsewhere. So let us look at the broadest statement of what those moral rights may be.
In France, there are four basic moral rights for an author:
The four separate and independent rights … are (1) the French droit de divulgation, which is the right of the author to decide whether or not the work is to be published; (2) the droit de retrait (ou de repentir), which is the author’s right to withdraw the work from publication or to modify it even after it has been made public; (3) the droit a la paternite, or the right of the author to have his name always associated with the work and to be acknowledged as its creator, as well as to disclaim authorship of works falsely attributed to him; and (4) the droit a l’integrite, which provides the author with the right to protect the author’s work from alteration, mutilation, and excessive criticism without permission.
[Calvin D. Peeler, From The Providence Of Kings To Copyrighted Things (And French Moral Rights), 9 Ind. Int’l & Comp. L. Rev. 423, 427 (1999)]
Though he may not have been consciously invoking such rights, basketball star Charles Barkley once seemingly relied in a very common sense manner on each of these when he sought to stop sales of his own autobiography. Barkley said the book—his own autobiography–incorrectly recorded his views, probably because, as he admitted, he had not read it completely, much less written it all. And, of course, Kramer on Seinfeld would have had much easier time of things under French system where his rights would have been inalienable, which would have given him great leverage when Peterman tried to blow off Kramer’s claims at the book signing by announcing “All right, playtime’s over.”
Indeed, while it has been stated expressly that inalienable moral rights are separate from and separated from an author’s assignable economic rights, the former’s continued existence leverages the latter’s value to the assignee. In fact, moral rights go to the very ideas expressed in the opening paragraph of this post. While economic rights in copyright focus on the connection to work (from which an author can naturally divorce himself or herself), moral rights are inalienable precisely because they connect with the author. An author can alienate a work, but not the author’s self. See Jonathan Griffiths, Lives and Works—Biography and The Law Of Copyright, 20 Legal Studies 485, 491 (2006) (“Breaches of moral rights are wrongs committed against the author of a work rather than wrongs committed against the work in its own right”) (emphasis in original).
Had these rights been available to Vernon Hill, he would have retained right as to when the work would be disclosed, and as to how and when to modify it thereafter. While not themselves economic rights per se, they certainly could influence the exercise and value of economic rights. As one Romanian lawyer put it, moral rights “precede, survive and exert a permanent influence on the economic rights.” But, alas, as we know, or at least have all been taught, “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.” Gilliam v. American Broadcasting Companies, Inc., 538 F. 2d 14, 24 (2nd Cir. 1976).
American Law Is Supposed to Recognize At Least Some Moral Rights
Whatever the accuracy of Gilliam’s statement in 1976, it is not supposed to have ongoing validity today. That is because in 1988 the United States ratified the Berne Convention. That convention in Article 6bis requires participating countries to honor at least some moral rights:
Article 6bis
Moral Rights:
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To claim authorship; to object to certain modifications and other derogatory actions;
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After the author’s death;
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Means of redress
(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and 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.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
[Berne Convention, Article 6bis]
But the United States Congress, however, has never passed true implementing legislation as far as moral rights are concerned, contenting itself with the conclusory non sequitur that common law or statutory rights to bring defamation or unfair competition claims is somehow a replacement for the recognition of an author’s moral rights. See Ronald Stadler, Moral Rights of Authors in the USA (2012), at page 5 (“During the passage of the Berne Convention Implementation Act, the US Congress specially stated in 1988 that rights equivalent to moral rights of authors were already recognized in the USA.”).
As we know from our quotable friend, Sir Charles (Barkley), the added elements that one must prove to sustain a defamation claim can deter bringing such claims: “My initial response was to sue her for defamation of character. Then I realized that I had no character.” Dealing With Defamation: Everyone Has The Right To Reputation in So You Want To Be A Journalist?: Unplugged (2d Ed. 2012) at 230. Both cases, like Muzikowski v. Paramount and Geisel v. Poynter, and commentators, like Becca Davis, also recognize the limits of defamation as a substitute for moral rights. Indeed, as Davis noted as to creators of music:
while there are several aspects of U.S. law that could, in theory, cover the right of attribution, they are too tenuous to provide the blanket protection original creators deserve. To hold attribution under copyright law sufficient implies only the copyright owner is worthy of protection, and to hold misappropriation sufficient implies only authors who create news are deserving of protection. To hold the right of publicity or defamation sufficient implies only artists who are sufficiently popular and well-known in their industry are worthy of protection, and to hold trademark law sufficient implies only artists who are the manufacturers of their works, e.g. artists who distribute the actual records their music is contained in, are deserving of protection. Moral rights are meant to protect the creative soul, and must be legislated as such.
[Davis, Moral Rights for Musical Compositions in the United States: It’s Not Just Fair, It’s an Obligation, 40 HASTINGS COMM/ENT L.J. 69, 92 (2018)]
The moral rights applicable to authors share the same grounding. And leaving them only to the protection of defamation sans independent moral rights has long been seen as “inadequate,” as a defamation cause of action depends on special damages and an author’s fame. See Comments: Moral Rights for Artists under the Lanham Act: Gilliam v. American Broadcasting Cos., 18 Wm. & Mary L. Rev. 595, 596, 601 (1977). Moral rights protect the unknown and unpublished author without such limitation—indeed, they respect the right not to publish and not to endure fame, right that Salinger and Dickinson would likely have enjoyed having in addition to their copyright rights (which may not have always protected privacy in as straightforward a manner as moral rights could. See Jonathan Griffiths, Lives and Works—Biography and The Law Of Copyright, 20 Legal Studies 485, 495-496 (2006)).
A treaty requiring express recognition of moral rights of authors as part of copyright law is not honored by pointing to pre-existing tort doctrines long existing in the absence of droit moral. One writers’ group suggested abject failure on the part of the United States:
As a party to the Berne Convention and the WIPO Copyright Treaty, the United States is obligated to guarantee the inalienable moral rights of authors with respect to attribution of authorship and protection of the integrity of their work, independently of authors’ economic rights and even after any transfer of those rights; to enact laws providing adequate and effective means of redress for violations of these rights, without requiring any formalities or evidence of pecuniary damages as a prerequisite to adequate and effective redress; and to require mention of the source and name of the author whenever “fair use” is made of a written work .
The U.S. has failed to enact laws protecting these rights at all, …Defenders of the U.S. failure to effectuate its treaty obligation to protect the moral rights of authors have pointed to a variety of U.S. statutes and largely untested (because prohibitively expensive to test) legal theories which might, in certain limited circumstances (but not in most circumstances), provide some (but not all) writers with some (but not all) theoretical (but in practice typically unavailable) means of enforcing some (but not all) of these rights….
… Situations in which it is feasible for an author to enforce any of her moral rights in the U.S. are the rare exceptions. …. Most of these laws are, in most cases, irrelevant, ineffective, unavailable, and/or prohibitively expensive for writers to use to provide redress for typical violations of writers’ moral rights. To fulfill U.S. treaty commitments, and to protect the human rights of writers, new U.S. legislation is needed to recognize the inalienable moral rights of writers, even when economic rights have been transferred and in cases of “fair use” or other exceptions to economic rights, and to establish effective means of enforcing these rights that do not depend on formalities.
[COMMENTS OF THE NATIONAL WRITERS UNION AND SCIENCE FICTION AND FANTASY WRITERS OF AMERICA (March 30, 2017), pp. 3-4]
Journalists in the United States are also taking issue with demands that moral rights be waived, as seen in a recent article in the Columbia Journalism Review, where one journalist objecting to such “rights’ grabs” was quoted as saying “’We should make them feel ashamed about what they do and expose them; that’s what we’re about, writing about abusive practices,”’ she says. ‘We should speak out because that’s our tool, we’re not lawyers but we’re journalists, so we can write about it.’” Well, this lawyer is writing about it too.
Indeed, as Professor Yu has noted, the differences among various countries’ approach to moral rights may not be as significant as the commonality that may allow for growth of respect for such rights more generally:
As of this writing, more than 160 countries have introduced some form of moral rights.” Notwithstanding the United States’s obligations under the Berne Convention and its role as a vocal global champion of intellectual property rights, the country has yet to protect moral rights to the same extent as its counterparts in continental Europe….Thus, the differences between the United States and continental Europe over the protection of moral rights are likely to persist into the future.
Interestingly, as wide as they are, these differences are unlikely to present significant challenges to the future development of moral rights.
[Peter K. Yu, Moral Rights 2.0, 1 Tex. A&M L. Rev. 873, 875-876 (2014)]
So perhaps there is hope.
Despite the writers’ group observations noted above, the same group concluded that, while “We’re still a long way from federal legislation to protect our moral rights as writers[,…] we’re moving in the right direction.” Perhaps that has to do with the recognized need to speed up the process of truly honoring the commitments in the Berne Convention. For instance, in the Register of Copyrights led a discussion of moral rights issues (linked here in video and print formats) and in 2017, the “US Copyright Office conduct[ed] a study to determine whether the US has done enough to live up to its commitments to both international treaty partners and to domestic and foreign writers,” as one writers’ advocacy group noted. Or perhaps it has to do with the notion that there are some bases in United States law on which build. See Ronald Stadler, Moral Rights of Authors in the USA (2012), at pages 7-22 (discussing cases ranging over time from a 1888 case involving Samuel Clemens to cases in recent past that recognized in US rights equivalent to moral rights). Or maybe it is a recognition, as Yu suggests (at 876), that “differences continue to exist among the different author’s rights regimes in Europe-droit d’auteur in France, Urheberrecht in Germany, diritto d’autore in Italy, and derecho de autor in Spain” or, as Griffiths notes (at 5), “there is considerable evidence of continuing resistance to the extension of moral rights protection in copyright countries” other than the United States. So the United States is, perhaps, not as far behind as one might think “an appropriate or ideal form of moral rights protection – represented by the end of the journey or the state of full maturity” of moral rights on a French model. Griffiths, supra (at 5). Indeed, in addition to watching the Hill appeal, we can also watch these issues play out in a New Jersey state court case, recently filed, that includes the allegations concerning a Life Story Rights Agreement (LSRA) such as that the LSRA conveyed “sweeping rights” to the artist’s life story, purported to waive the artist’s droit moral, or moral rights,” and that the “going rate under similar life story rights agreements measures hundreds of thousands of dollars.” (Complaint at paragraphs 56-61). The very fact that they are being litigated may show an American softening on moral rights.
As Billy Joel noted in another song, “We didn’t start the fire…We didn’t light it. We tried to fight it.” At least as far as moral rights go, that fire did start outside the United States, and we in the US have tried to fight it for some time. But it continues to Berne (pun intended). Whether the discussion of moral rights in USA now heats up further or flames out, this will likely remain an interesting area to follow.
