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APPENDIX
Other intellectual property and allied rights
The transfer and use of film materials can involve intellectual property issues other than just copyright. These issues include moral rights, the right of publicity, privacy law, trademarks, and collective bargaining agreements with craftspeople, actors, writers, and directors. While these concerns do not generally have an impact on the ternis of deposit agreements, the issues that they pose should be kept in mind by both parties.
1. Moral rights laws
Moral rights are inherent rights of artists, authors, or other creators of copyrightable works that remain with the creator even if she no longer owns the work or the copyright to the work." The U.S. has generally not followed other countries in granting statutory moral rights protection. With the Visual Artist Rights Act of 1990, however, U.S. federal law for the first time granted the creator of artworits a statutory right of paternity (the right to claim or disclaim authorship of a particular wori<), and right of integrity (the author's right to object to modification of her work)." The statute excludes all wori^s-for-hire, motion pictures, and still photographs (other than those "produced for exhibition purposes"). Therefore, moral rights are not likely to be an issue in film deposit agreements in the U.S."
2. Right of publicity laws
Most states now have either a statutory or case law right of publicity which prohibits, to varying degrees, the unauthorized commercial exploitation of a person's name, likeness, or voice. In virtually all cases, these laws either do not apply to motion pictures or are waived by the fact that the performer's appeared in the film with the implicit knowledge that the resulting film would be shown to the public.
The right of publicity might, however, have an impact on archival activities involving sale of merchandise based on the deposit materials. For example, the sale of frame enlargements of a performer, absent the consent of the performer, might give rise to a right of publicity claim. Licensing a still from a picture (or a publicity still) for use in a commercial advertisement is even more likely to give rise to such a claim.
3. Privacy laws
Claims under state law for invasion of privacy are extremely unlikely against commercial motion pictures (either studio-produced or independent). In such films, the actors were aware that their filmed perfonnances would be publicly shown. However, for some home movies, actuality footage (including documentaries), and avant-garde works, the individuals appearing on-screen may not have signed employment or consent forms and may never have expected the footage to be shown in public.
Supporting Document D: Depositing Films in Archives 69