Shostakovich v. Twentieth Century-Fox Film Corp.

Soviet composer Dmitri Shostakovich, a plaintiff in Shostakovich v. Twentieth Century-Fox Corp.

The Iron Curtain, a spy film based on the defection of Igor Gouzenko from the Soviet Union to Canada, premiered on May 12, 1948, in New York City, to the protests of left-wing organizations, mostly positive reviews, and modest box office returns.[4][5] The film, distributed by Twentieth Century-Fox Film Corporation, was the first Cold War production of the United States film industry.[6]

The film's soundtrack was conducted by Alfred Newman and featured the works of several famous Soviet composers: Dmitri Shostakovich, Aram Khachaturian, Sergei Prokofiev, and Nikolai Myaskovsky.[7][8] The soundtrack included excerpts from the third and fourth movements of Shostakovich's Symphony No. 5; the first movement of his Symphony No. 6; the "Lullaby" from Khachaturian's Gayane; the third movements from Prokofiev's Symphonies Nos. 1 and 5; and Myaskovsky's Symphony No. 21.[9]

The film used the composers' music in approximately 45 of the film's 87 minutes and showed a character placing one of the composers' records on a phonograph.[10][lower-alpha 1] The opening credits also contained the following statement: "Music from selected works of the Soviet Composers, Dmitry Shostakovich, Serge Prokofieff, Aram Katchaturian [sic], Nicolai Miashovsky [sic], conducted by Alfred Newman."[11]

In advance of The Iron Curtain's release, the Soviet government and their allies, as well as the composers, opposed the film. From 1947 to 1948, pro-Soviet organizations attempted to persuade Fox president Spyros Skouras and the Motion Picture Association of America to pull the film. Upon the film's release, pro-Soviet organizations organized protests, accusing the film of being pro-war.[12][13] On April 1, 1948, in a letter to the editors of Izvestia, the composers wrote that the filmmakers, whom they called "American reactionaries", had stolen their music.[14][15][16] That month, Helen Black—head of Preslit, the Soviet Union's arts distribution and copyright agency in the United States which was associated with VOKS, the Soviet Union's international cultural exchange organization—attempted to stop the filmmakers from using the composers' music.[17] When Black learned that Fox had sought a license to use the music from publisher Leeds Music, she advised Leeds that the composers would object. Leeds asked Black to send a telegram from the composers formalizing their objections; Black asked Soviet officials to organize a telegram, but did not receive a response.[18] During the month of April, Black and Fox also consulted attorneys; Black's lawyer advised her that Fox could likely use the music, notwithstanding whether they obtained a license, while Fox's counsel determined that although the law supported their position, there was a limited chance that they would not prevail in court.[19] Black was unable to obtain a telegram from Soviet officials, Leeds declined to issue the license, and Fox proceeded with publishing the film.[18]

Charles Recht, attorney for the plaintiffs

In May 1948, attorney Charles Recht—who had previously served as the Soviet Union's representative to the United States—filed suit against Fox on behalf of Shostakovich, Khachaturian, Prokofiev, and Myaskovsky, seeking both a temporary and permanent injunction prohibiting distribution of The Iron Curtain.[11][20][lower-alpha 1] Law professor Mira T. Sundara Rajan has suggested that the composers were nominal plaintiffs and that the suit was brought at the behest of the Soviet government, which wanted to censor the film outright.[21] Historian Kiril Tomoff traced Black's papers through the Soviet bureaucracy and concluded that the Soviet government directed Recht to bring suit;[22][23] he described the Soviet's legal strategy as "a hubristic willingness to engage the West in the West’s own terms".[24] Legal scholar André Bertrand and attorney Alexander Gigante also noted that the composers likely feared the consequences of being associated with the film.[25][26]

In May 1948, attorney Philip Adler argued the composers' motion before Justice Edward R. Koch of the Supreme Court (the state's trial court) in New York County, with Edwin P. Kilroe representing Fox.[13][23][27][lower-alpha 1] Justice Koch also watched The Iron Curtain with counsel present.[lower-alpha 2]

At argument and in their motion, the composers conceded that the compositions at issue were in the public domain in the United States because the Soviet Union and the United States had not entered into a copyright agreement.[11][28][20] They also did not argue that the filmmakers had improperly modified the compositions.[29] Instead, they asserted four grounds for issuance of an injunction:[30][31][lower-alpha 3]

1. violation of the right to privacy under Section 51 of the New York Civil Rights Law;
2. defamation of the composers by associating their work with an anti-Soviet stance, implying their disloyalty;
3. deliberate infliction of an injury without just cause; and
4. violation of the composers' moral rights.

According to law professor Justin Hughes, the privacy claim rested on a right to anonymity and the contention that use of the music constituted a public "distortion" of the composers' beliefs.[32] Likewise, the defamation claim turned on the composers' protest that the music was being used for a political use that they did not agree with.[6]

The composers also asserted a legal theory that was novel in 1940s United States jurisprudence: the moral rights of authors. As of 1948, no United States court had recognized the legal doctrine of moral rights in authorship. European legal systems, by contrast, had recognized the moral right of an author to enjoin deformation of their works.[3][33] In their briefing, the composers relied on a 1940 Harvard Law Review article,[34] which argued that moral rights had a grounding in United States case law,[35] and contended that the composers' moral rights were harmed by the political use of their music.[11][lower-alpha 2]

On June 7, 1948, Justice Koch denied the injunction, rejecting each of the composers' theories.[lower-alpha 1] First, the court held that the composers did not have a right of privacy under New York law because those who use public domain works may publish them along with the names of their authors.[32][lower-alpha 3] Second, assuming that it had the authority to issue an injunction for libel under New York law, the court rejected the defamation claim because the composers had failed to prove that the use of their music implied that they supported the message of the film. Specifically, the court held that, unlike copyrighted works—for which the public expects that their authors will be paid and consent to their use—there cannot be an implication of support when a work is in the public domain and available for use by all.[36][lower-alpha 2]

The court addressed the composers' third and fourth claims together, concluding that their theory of injury "leads inescapably to the Doctrine of Moral Right".[lower-alpha 2] The court held, assuming moral rights existed in United States law, that the composers had not shown such a violation because there was no clear standard of adjudication.[37][38] The court wrote:

[T]here arises the question of the norm by which the use of such work is to be tested to determine whether or not the author's moral right as an author has been violated. Is the standard to be good taste, artistic worth, political beliefs, moral concepts or what is it to be? In the present state of our law the very existence of the right is not clear, the relative position of the rights thereunder with reference to the rights of others is not defined nor has the nature of the proper remedy been determined.[lower-alpha 4]

The court also held that the public's right to use non-copyrighted works outweighs any moral rights that an author may have.[36][lower-alpha 2]

The court's decision in Shostakovich received widespread media coverage, including a front-page story in the Los Angeles Times; according to documents from the Fox archives, one radio columnist said that "the studio couldn't have bought the kind of publicity the Reds handed out on a silver platter".[9] On appeal, the First Department of the Appellate Division of the New York Supreme Court affirmed in a brief memorandum opinion.[36][lower-alpha 5] In Société Le Chant du Monde v. Société Fox Europe and Société Fox Americaine Twentieth Century, a French court reached the opposite conclusion of the Shostakovich court, finding in favor of the composers' moral rights, prohibiting distribution of the film, and awarding damages.[6][39][40]

Legal commenters have described the Shostakovich decision as a landmark case[1][2][3] that typifies the rejection of moral rights claims by United States courts.[10][41][42] However, commenters have been divided on whether the court properly answered "the question of whether a composer's integrity can be impaired by a faithful rendition of his song in an objectionable context".[43] Law professors Arthur Katz, Sidney Post Simpson, and Bernard Schwartz criticized the court for failing to articulate a standard for evaluating moral rights and not recognizing that the composers had a valid claim that their works were being misappropriated to support a political stance that they disagreed with.[37][44] In a 1953 paper, Arthur L. Stevenson Jr. contested those arguments, stating that moral rights protect author's rights in individual works, rather than the interpretation of those works.[45] Likewise, William Strauss stated that the court correctly concluded that use of a public domain work does not imply support on behalf of its author and that composers should not be allowed to censor the use of their music based on their political views.[46] Law professor Mira T. Sundara Rajan stated that the court properly weighed the interest in a free public domain against authors' moral rights.[47]

• Culture during the Cold War
• Music of the Soviet Union
• Soviet espionage in the United States
• Dastar Corp. v. Twentieth Century Fox Film Corp. – United States Supreme Court decision rejecting moral rights in authorship