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VISUAL ARTISTS' RIGHTS IN A DIGITAL AGE*
"[I]t is almost obligatory... to begin by invoking the 'communications
revolution' of our time, then to pronounce upon the inadequacies of
the present copyright act ... "
BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT'
Over twenty-five years ago, Professor Benjamin Kaplan alluded
to the steady stream of commentary critical of the copyright system's
ability to respond to a constant progression of technological advances. 2
That stream of criticism continues today. 3 Modern commentators,
however, whether critical or laudatory of American copyright law,
often do not explicitly acknowledge the recent changes in American
copyright that attempt to harmonize the American system with that
of other countries. The globalization of the entertainment industry
has brought an increased interest in the various legal systems used to
protect intellectual property around the world, 4 and the changing
contours of entertainment-product marketing have placed a premium
on attempts to harmonize intellectual property protection internationally.
As one commentator notes:
Suddenly, or so it appears, copyrights have been promoted from
pawns to queens on the global chessboard. Originally the province of
artists and their patrons, then growing into major industries, copyright
and [like doctrines] now preoccupy those conducting affairs of
state. . . . In short, transmedia communications are a new empire,
and all of us are its subjects. 5
* A revised version of this Note is currently under consideration in the 1994 Nathan Burkan
Memorial Competition, which is sponsored by the American Society of Composers and Publishers
(ASCAP).
I BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT I (1967).
2 See also Leo J. Raskind, The Continuing Process of Refining and Adapting Copyright
Principles, 14 COLuM.-VLA J.L. & ARTS 125, 128 (i9go) ("A cursory review of the critical
literature discloses a repetitive theme of dissatisfaction with the case law extension of traditional
copyright principles to new works."); cf. LYNN SPIGEL, MAKE ROOM FOR TV: TELEVISION AND
THE FAMILY IDEAL IN POSTWAR AMERICA 182 (1992) (describing America's profound ambivalence
about technological change).
3 See, e.g., Pamela Samuelson, Modifying Copyrighted Software: Adjusting Copyright Doctrine
to Accommodate a Technology, 28 JURIMETRICS J. 179, 188-92 (1988); see also Jason S.
Berman, The Music Industry and Technological Development: Are We Winning the War, in
WORLD INTELLECTUAL PROPERTY ORG., WIPO WORLDWIDE SYMPOSIUM ON THE IMPACT OF
DIGITAL TECHNOLOGY ON COPYRIGHT AND NEIGHBORING RIGHTS 93, 94-95 (1993) [hereinafter
WIPO DIGITAL SYMPOSIUM] (indicating that these commentators often speak in terms of impending
disaster).
4 See 133 CONG. REC. S1o275 (daily ed. July 21, 1987) (statement of Sen. Lloyd Bentsen).
S Alan J. Hartnick, Aid for Copyright Lawyers in International Transactions, N.Y.L.J., Dec.
7, 199 o , at 5 (quoting RICHARD WINCOR, COPYRIGHTS IN THE WORLD MARKETPLACE (1990)).
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