1. Preserving Creativity from Endless Digital Exploitation: Has the Time Come for the New Concept of Copyright Dilution? 6th Annual Works in Progress Intellectual Property Colloquium Tulane University Law School - October 3-4, 2008 Lucille M. Ponte Associate Professor Florida Coastal School of Law lponte@fcsl.edu

2. PROTECTING & PROMOTING CREATIVITY  MORAL RIGHTS  DISTINCT FROM COPYRIGHT Creative Work as Both Commodity & Embodiment of Author’s Personality/Identity Protected as Personal Civil Right & Economic/Property Right Rights Derived from Natural Rights/Personhood Self-Expression/Personal Fulfillment as Incentive to Create

3. MORAL RIGHTS AS PREVAILING INTERNATIONAL TREND RIGHT OF ATTRIBUTION/PATERNITY  Right to receive credit/designation as creator  Right to prevent misattribution RIGHT OF INTEGRITY  Right to stop alteration, distortion, or destruction of work  Right to prohibit presentation of work in derogatory manner

4. WHY PROTECT MORAL RIGHTS  Promoting Future Creativity & Expanded Consumer Choice  Technology as Breaking Down Nat’l Borders/Ease of Manipulation & Copying  Fulfilling Long-Ignored Int’l Obligations  Infringement Alone Insufficient to Prevent Harm to Creators/Creative Works

5. LIMITED MORAL RIGHTS PROTECTION VISUAL ARTISTS RIGHTS ACT (1990) Restricted to Limited Edition Fine Art; Not Books, Movies, Music, Electronic Publications, Works Made for Hire Moral Rights Waivable Rights End at Death of Creator Artists Normally Lose Under VARA/ Common Law Theories

6. OBSTACLES TO MORAL RIGHTS IN U.S.  Chilling Effect on Investments in Creative Works  Increased Censorship through “Aesthetic Veto”  Disruption of Pre-Existing Contractual Rights  Lobbying by Media/Entertainment Interests  Congressional Inactivity on Moral Rights

7. EVOLUTION OF TRADEMARK DILUTION  State Anti-Dilution Statutes  Federal Trademark Dilution Act  Trademark Dilution Revision Act  Protecting Business Brand/Goodwill  Trademark Blurring  Famous ® Will Be Weakened in Marketplace Over Period of Time  Trademark Tarnishment  Famous ® Will Be Reduced in Value Over Time Due to Shoddy Quality or Unwholesome Use

8. PROPOSED THEORY OF COPYRIGHT DILUTION  DISTINCTIVE CREATIVE WORKS  © BLURRING ≈ RIGHT OF PATERNITY  Right to receive credit/designation as creator  Avoid weakening reputation of creator/work in marketplace  © TARNISHMENT ≈ RIGHT OF INTEGRITY  Right to stop alteration, distortion, or destruction of work (physical)  Right to prohibit presentation of work in derogatory manner (contextual)  APPLY TO SAME CREATIVE WORKS FOR SAME TIME PERIOD AS COPYRIGHT

9. REASONABLE LIMITATIONS ON COPYRIGHT DILUTION  Apply Proposed Theory Prospectively  Retain Fair Use and Public Domain as well as “Works Made for Hire” Exceptions  Limit Individual’s Exercise of Rights Based on Reasonableness Standard  Provide Post-Mortem Rights in accord with Length of Existing Copyright Protections  Allow for Limited Waivers based on Specific Uses of Work – No Blanket Waivers  Like TM Dilution, Remedy of Injunctive Relief/ Monetary Damages Only if Dilution is Willful