tag:blogger.com,1999:blog-5574479.post8864994875056009021..comments2024-03-29T06:53:23.405+00:00Comments on The IPKat: Erasing Kevin Spacey: performers' rights to the rescue? Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger7125tag:blogger.com,1999:blog-5574479.post-38499112986399916452017-11-14T13:50:48.066+00:002017-11-14T13:50:48.066+00:00Adrian - Oh that's a good question and twist o...Adrian - Oh that's a good question and twist on the argument! So you think that the allegations would damage the reputation of the performer to the extent that he would have no reputation to protect (with moral rights) in the first place? Do I understand your comment correctly?<br /><br />I dont know if you could say Spacey has lost all reputation quite just yet. If the trend carries on like this, and allegations keep coming up, for sure Spacey's reputation will soon only become all about the sexual abuse, very little will remain of this acting reputation or 'Hollywood sweetheart' status. The argument that he has no reputation to defend... might be tenable then. Do you think we are there yet? In any case, I am not sure we should link the moral right doctrine to 'tabloid'/public opinion reputation that closely. I think we risk mixing IP law with questions that is outside the subject-matter it applies to. Then, what's the solution? Adopting a definition of 'reputation' specific to IP? Is that desirable? I am not sure. We need a case on this! Mathilde Pavishttps://www.blogger.com/profile/02600303164071061072noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42071638082714600752017-11-14T12:33:54.661+00:002017-11-14T12:33:54.661+00:00Thanks Mathilde, it is an interesting post. What d...Thanks Mathilde, it is an interesting post. What do you think of an argument that after recent allegations Kevin Spacey now lacks sufficient reputation to succeed in the UK in an action to object to the right of derogatory treatment? This type of approach seemed to be floated as a possibility at the end of the Confetti Records judgment at paras 159 and 160.Adrian Aronsson-Storriernoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-2124518050113003602017-11-14T11:10:40.048+00:002017-11-14T11:10:40.048+00:00Thanks, Mathilde.
I forgot to check the Beijing T...Thanks, Mathilde.<br /><br />I forgot to check the Beijing Treaty, mainly because it isn't in force yet, but your point is well made.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-86008659339000483502017-11-14T10:30:01.770+00:002017-11-14T10:30:01.770+00:00Very interesting points. I am not all that sure th...Very interesting points. I am not all that sure that Article 19 include moral rights. Article 7 only outlines economic right. I read Article 19 as implying consent for the record of the performance and its release once the performance is incorporated in the film. <br /><br />The more recent Beijing Treaty provides for moral rights and does specify that even if economic rights are transferred, moral rights are still applicable. (Article 5 [Moral Rights] (1) Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live performances or performances fixed in audiovisual fixations, have the right: ...(ii) to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations). <br /><br />The same does mention that editing (and dubbing) which is part of the normal course of the making process of a film will not class as 'distortion' (footnote 5, page 6), which I think is a welcome clarification and supports your argument as well. <br /><br />In relation to dubbing, obviously we have the Garcia case in US (though it is was not a case of mere translation into a foreign language) which did not go very for from the actress's point of view. In France we did have a very early case, where dubbing had been added to a actor's performance as an after thought after the shooting of the film. The performer sued at a time when performers' had not yet been introduced in France (end 1930s) and won in the first instance (no appeal lodged after that). I think the dubbing was in French language, so it was not a case of foreign language here either. The tribunal found that authors' and performers' should receive the same level of protection, especially with regards to moral rights. Of course, one case does not carry a lot of a weight in a jurisdiction not based on precedent but I thought the facts made it worth raising. (Case in question: Trib Seine, 23 avril 1937, Rigault dit Marnay c. Chaperot et Copelier : Le Droit d’Auteur, No 11 p 129, 130). <br /><br />I understand that editing is routine, and even when it involves putting one's face on another's body, but here the motivation of the director are quite different, which is why I wonder whether a case would be at all possible. Hence the posting.Mathilde Pavishttps://www.blogger.com/profile/02600303164071061072noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-17112564657128680972017-11-14T09:09:39.014+00:002017-11-14T09:09:39.014+00:00I think it is implicit in the whole process of how...I think it is implicit in the whole process of how films are made that the director has the absolute right to decide what performance(s) goes into the finished film. Take, for example, the shooting of a single scene: the director shouts action and the actors act out the scene: the director shouts cut. The director then asks an actor to go again but altering his delivery or facial movements or some other feature of his performance. This could perhaps be repeated several times with a pernickety director. Which of these takes (if any) goes into the final edit is the decision of the director (perhaps on the advice of his editor). That is the performance which might possibly attract moral rights; the others are destined for the cutting room floor (metaphorically speaking, since most films are shoot digitally these days). I would argue that this author's right of the director exists right up to the time of the film's release and even beyond in some cases. It is well known that studio executives also have a say in how the final work will look, often against the director's wishes, and sometimes resulting in the director demanding his name is removed from the credits (google <a href="https://en.wikipedia.org/wiki/Alan_Smithee" rel="nofollow">Alan Smithee</a>). This intervention sometimes results in the subsequent release of a director's cut version of the film. All of this serves to strengthen the position of the director in the editorial process, and minimise the actor's performance rights, and by extension. his/her moral rights.<br />As for the possibility of a French court hearing a claim, surely this would have the effect of ensuring that the film would not be released in France.<br />The posting fails to mention one prevalent form of altering a film actor's performance: that of dubbing his/her words into a foreign language. This could result in some quite atrocious detrimental treatment of the original performance. Has anyone ever sued over that, I wonder.<br /><br />And finally I believe that Article 19 of the WIPO Treaty on Performances and Phonograms effctively prevents any national court in a signatory country such as France from finding for a performer in circumstances such as described in Mathilde's posting: "Article 19 [Performers’ Rights in Films] Notwithstanding anything in this Convention, once a performer has consented to the incorporation of his performance in a visual or audio–visual fixation, Article 7 [Protection for Performers] shall have no further application." Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-19175007227233846942017-11-13T19:02:14.145+00:002017-11-13T19:02:14.145+00:00@Perplexed, I hear your point but discussions on s...@Perplexed, I hear your point but discussions on social media (and also sometimes in the news) have confused the two on more than one occasions. I felt it was worth stressing this to avoid going into this debate. So I do wish it is/was useless to insert that comment. Mathilde Pavishttps://www.blogger.com/profile/02600303164071061072noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-42211472726165739192017-11-13T15:36:28.499+00:002017-11-13T15:36:28.499+00:00“NB: This post is not to be read as undermining th...“NB: This post is not to be read as undermining the very serious allegations raised against Kevin Spacey. It merely aims to explore the implications of editing decisions made in reaction to such allegations from the perspective of intellectual property law.”<br /><br />Sorry, but since when discussing someone’s rights equals endorsing that person ethically?! I find this disclaimer not only useless but also dangerous: self-censorship or restraint when neither is necessary.Perplexednoreply@blogger.com