1998 Jane C. Ginsburg.

Morton L. Janklow, Professor of Literary and Artistic Property Law, Columbia University School of Law. Thanks to Professor Jessica Litman, to Jacqueline Ewenstein, J.D. Columbia Law School class of 1998, and to Andrew Thompson, Columbia Law School class of 1999.

1. See, e.g., U.C.C. Article 2B, Preface at 5 (Aug. 1, 1998 Draft); id. 2B-103, Reporter's Note 1; id. 2B-102(a)(26) and accompanying Reporter's Note 23 (defining informational content and distinguishing "information" not meant to be perceived by human beings from "informational content" that is meant so to be perceived; a database of images offers informational content with respect to the images, and information with respect to the computer program that makes the images accessible).

2. See, e.g., Letter from Allan Adler, Association of American Publishers, to Article 2B Drafting Committee (Feb. 17, 1997), available at <http://www.2Bguide.com/docs/aap.html> (visited Mar. 30, 1998); Letter from Gary L. Griswold, American Intellectual Property Law Association, to Article 2B Drafting Committee (Nov. 18, 1997), available at <http://www.2Bguide.com/docs/sycaipla.html#aipla> (visited Nov. 23, 1998).

3. See, e.g., Memorandum from Stephen Y. Chow on Avoiding Confusion of Information and Intellectual Property Rights (Feb. 12, 1998), available at <http://www.2Bguide.com/docs/chowip.pdf > (visited Nov. 23, 1998).

4. See, e.g., Julie E. Cohen, Copyright and the Jurisprudence of Self-Help, 13 BERKELEY TECH. L.J. * (1998); Mark A. Lemley, Beyond Preemption: The Federal Law and Policy of Intellectual Property Licensing, 87 CALIF. L. REV. 113, 128-31 (forthercoming 1999); David F. McGowan, Free Contracting, Fair Competition, and Article 2B: Some Reflections on Federal Competition Policy, Information Transactions, and "Aggressive Neutrality," 13 BERKELEY TECH. L.J. * (1998).

5. U.C.C. 2B-103(a)(1) (Aug. 1, 1998 Draft); id. at Reporter's Note 1.

6. Id. 2B-102(a)(28).

7. Id. 2B-102(a)(27).

8. Id. 2B-102(a)(24).

9. See 17 U.S.C.A. 102(b) (West 1998); Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348 (1991).

10. See 17 U.S.C.A. 106 (West 1998). See also Pamela Samuelson, Allocating Ownership Rights in Computer Generated Works, 47 U. PITT. L. REV. 1185, 1219 (1986) ("Concerning an exclusive use right, the copyright law differs from the patent law, which does give the owner of the intellectual property interest an exclusive right to use (or authorize use of) the protected work."). Samuelson cites the statement of Dorothy Schrader, general counsel of the U.S. Copyright Office, Hearings on S. 1201 Before the Subcomm. on Patents, Copyright and Trademark of the Senate Comm. of the Judiciary, 98th Cong., 1st Sess. 20 (1983). Id. at 1219 n.141 ("[T]he new use right ... is a right that, as far as we are aware, has absolutely no equivalent in copyright law ...."). Cf. 35 U.S.C.A. 271 (West 1998) (defining patent infringement: as "whoever without authority makes, uses, offers to sell, or sells any patented invention ...") (emphasis added).

11. See 17 U.S.C.A. 202 (West 1998) (distinguishing ownership of copyright from ownership of physical object).

12. See Chow, supra note 3 (distinguishing "information deliverables" from incorporeal copyright).

13. See U.C.C. Article 2B, Preface at 4 (Aug. 1, 1998 Draft).

14. See, e.g., id. 2B-103, id. at Reporter's Note 1; Joseph Verdon, Article 2B: Transactions in Software and 'Information', N.Y. L.J. , Aug. 13, 1997, at 1.

15. U.C.C. 2B-103(a)(1) (Aug. 1, 1998 Draft); id. at Reporter's Note 2b.

16. Id. 2B-102(a)(24).

17. See id. 2B-104(5), id. Reporter's Note 6 ("Subsection (5) deals with services contracts."). The exclusion was clearer in the February draft. See U.C.C. 2B-103(c)(4) (Feb. 1998 Draft) (excluding a "contract of employment of an individual other than as an independent contractor ....").

18. See 17 U.S.C.A. 201(b) (West 1998). In addition, unreserved transfers of all rights under copyright are not within 2B's scope. See U.C.C. 2B-102(a)(28) (Aug. 1, 1998 Draft). This would also exclude work for hire contracts. See discussion infra Part II.

19. The production of the sound recording requires a license from the performers of their rights under 17 U.S.C.A. 1101 to authorize the fixation of their musical performance. The commercialization of the sound recording requires a license or assignment of the performers' reproduction and distribution rights in their fixed performances.

20. U.C.C. 2B-104(8) (Aug. 1, 1998 Draft). This text appears in brackets in the Aug. 1998 draft.

21. See id. 2B-102(a)(24) (defining "information" as including "works of authorship").

22. See 17 U.S.C.A. 115 (West 1998) (subjecting nondramatic musical compositions to compulsory license following first authorized sound recording).

23. See U.C.C. 2B-104(7) (Aug. 1, 1998 Draft) (excluding a license that is "a compulsory license under federal or state law").

24. On the other hand, were the resulting sound recording to be offered to consumers on-line, the contract to deliver the sound recording to the consumer would be governed by Article 2B.

25. U.C.C. 2B-104 (Aug. 1, 1998 Draft); id. at Reporter's Note 7.

26. Id. 2B-102(a)(28).

27. See MELVILLE B. NIMMER & DAVID NIMMER, 3 NIMMER ON COPYRIGHT 10.15[A], n.20 at 10-124 (1997).

28. See 17 U.S.C.A. 203(a)(3) (West 1998).

29. See id. 203(a)(5) ("Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant."). Note that 2B-308's provision for the perpetuity of informational property rights licenses conflicts with the author's inalienable right under copyright to terminate exclusive licenses, and therefore would be preempted. See U.C.C. 2B-105 (Aug. 1, 1998 Draft); id. at Reporter's Note 2. By contrast, since there is no right under copyright to terminate non-exclusive licenses, section 2B-308 is not incompatible to that extent. See discussion infra Part III.A.1.

30. See 17 U.S.C.A. 203(a) (West 1998).

31. See 17 U.S.C.A. 101, 201(b) (West 1998).

32. See also NIMMER & NIMMER, supra note 27, 6.03[c][2][A] at 6A-21 (contending that works made for hire should be considered implied assignments of copyright).

33. Practices in certain of the "copyright industries," however, may call for nuancing that conclusion. For example, the ASCAP membership agreement requires that composers and lyricists receive 50% of the performance right royalties, regardless of the work for hire status of the nondramatic musical composition. See Susan Stager, Musical Performing Rights in the Television Industry: Has the Blanket License Finally Seen Its Demise?, 14 SW. U. L. REV. 569, 585 (1984) (although composers are television producers' employees for hire, the producer's music publishing company distributes the "writer's share" (50%) of the royalties to the composer); ASCAP, ASCAP membership agreement, Art. 7 (visited Mar. 30, 1998) <http://www.ascap.com/membership/agreement/agreement.html>.

34. See U.C.C. 2B-401(a) (Aug. 1, 1998 Draft). Section 2B-404(b)(1) makes it clear, however, that the licensor does not warrant the work's "aesthetics, market appeal, or subjective quality." Id. 2B-404(b)(1).

35. See id. 2B-201(d).

36. Id. 2B-102(a)(33).

37. See id. 2B-106.

38. See U.C.C. 2B-106(6) (Aug. 1, 1998 Draft); id. 2B-201. The rules requiring written derogation concern the scope of a transfer, and transfers of non-exclusive rights. Both of these are of considerable interest to authors. See the discussion, infra Part III.A.1. For a discussion of authenticated records under Article 2B and "signed writings" under the Copyright Act, see infra Part III.A.

39. See U.C.C. 2B-105 (Aug. 1, 1998 Draft).

40. See 17 U.S.C.A. 204(a) (subjecting the validity of a transfer of copyright ownership to execution by the grantor of a written and signed "instrument of conveyance or a note or memorandum of the transfer."); U.C.C. 2B-105 (Aug. 1, 1998 Draft); id. at Reporter's Note 2.

41. For example, setting forth the terms of the "agreement" on the back of the freelance author's payment check, thus purporting to equate endorsement of the check with execution of the contract, appears to be a frequent means of dealing with freelance writers, photographers and artists. See, e.g., Playboy Enters. v. Dumas, 53 F.3d 549, 552 (2d Cir. 1995), cert. denied, 116 S.Ct. 567 (1995), on remand, 960 F. Supp. 710 (S.D.N.Y. 1997); Tasini v. New York Times Co., 981 F. Supp. 841 (S.D.N.Y. 1997).

42. See U.C.C. 2B-106(a)-(b) (Aug. 1, 1998 Draft).

43. Id. 2B-106(b)(6).

44. Id. 2B-201(a)(1)-(2). The August 1998 draft differs significantly from the April 1998 and earlier drafts, in making the dollar value and duration of the agreement cumulative, rather than alternative criteria for application of the authentication requirement. It is not clear that this change is intentional or desirable. The effect of the change is to validate non-authenticated licenses of any dollar amount, so long as its duration is less than a year. Not only does this change seem incompatible with consumer protection concerns; but also it is inconsistent with U.C.C. Article 2's statute of frauds, which requires a writing if the price of the goods sold is $500 or more. See id. 2-201(1) (1996). But see, R ESTATEMENT (SECOND) OF CONTRACTS: CLASSES OF CONTRACTS COVERED 110(1)(e) (1979) (applying the statute of frauds to contracts "not to be performed within one year from the making").

45. U.C.C. 2B-201(d) (Aug. 1, 1998 Draft).

46. See 17 U.S.C.A. 204(a) (West 1998).

47. See U.C.C. 2B-105 and Reporter's Note 2 (Aug. 1, 1998 Draft).

48. See, e.g., I.A.E., Inc. v. Shaver, 74 F.3d 768, 775 (7th Cir. 1996); Avtec Systems, Inc. v. Peiffer, 21 F.3d 568 (4th Cir. 1994); Effects Assocs. v. Cohen, 908 F.2d 555, 556 (9th Cir. 1990), cert. denied, 498 U.S. 1103 (1991) (finding that, absent a written agreement, delivery of a special effects video for inclusion in audiovisual work evidences a grant of non-exclusive rights, but not a transfer of exclusive rights).

49. See 17 U.S.C.A. 101 (West 1998) (defining "transfer of copyright ownership" as explicitly excluding non-exclusive licensees).

50. See, e.g., Grappo v. Alitalia Linee Aeree Italiane, S.p.A., 56 F.3d 427 (2d Cir. 1995); Freedman v. Select Info. Systems, Inc., 1983 U.S. Dist. LEXIS 19664, at *11 (N.D. Cal. Jan. 30, 1983) (applying state statute of frauds to non-exclusive license); Myers v. Waverly Fabrics, 475 N.Y.S.2d 860, 861 (N.Y. App. Div. 1984), aff'd as modified by 489 N.Y.S.2d 891 (1985) (holding a non-exclusive license incapable of performance within one year statute of frauds). But see, N IMMER & NIMMER, supra note 27, 10.03[A][8].

51. However, to the extent state statutes of frauds already apply to non-exclusive grants of copyright, Article 2B will represent a net gain to authors only if its version is more protective than most state versions. To the extent that Article 2B's statute of frauds is less protective than state versions, Article 2B will, by displacing state statutes of frauds, leave authors worse off. See U.C.C. 2B-105 (Aug. 1, 1998 Draft). For example, by making the duration and dollar amount criteria cumulative, the August 1998 draft will not require authentication of a license costing more than $5000 if its duration is less than a year, where an applicable state statute that turned on price, independently of duration, might otherwise have applied.

52. Because the videogame is interactive, it would not seem to be a "linear motion picture;" a contract to include an interactive video sequence within the game thus would not be covered by the 2B-104(8) exclusion. This would be true even though videogames are considered "audiovisual works" under the Copyright Act. See, e.g., Williams Elecs. v. Arctic Int'l, 685 F.2d 870, 872 (3d Cir. 1982); Stern Elecs. v. Kaufman, 669 F.2d 852, 856 (2d Cir. 1982). The category of "audiovisual works" is broader than that of "motion pictures," see 17 U.S.C.A. 101 (defining both terms), and a fortiori is broader than that of "linear motion pictures" (the latter term does not appear in the Copyright Act).

53. See Effects Assocs. v. Cohen, 908 F.2d 555, 556 (9th Cir. 1990).

54. See id.

55. U.C.C. 2B-201(a)(1) (Aug. 1, 1998 Draft).

56. Id. 2B-201(d).

57. Id. 2B-102(a)(39).

58. This construction "favors" authors to the extent that it invalidates the agreement, thus leaving the way open to the author to allege copyright infringement. But if the agreement is unenforceable, the author will not be paid the contract price (unless it becomes the measure of damages in a successful infringement action). On the other hand, an author who can enjoin the exploiter's use is in a stronger bargaining position than one who merely has a claim for contract damages.

59. Id. 2B-201(c)(1)-(2).

60. Id.

61. If the record is not "authenticated," for example, by a digital signature or other form of encryption, then it probably would not be considered a "signed writing" under the Copyright Act; Fred thus will not have transferred exclusive rights.

62. The August draft is more restrictive than the February version, which validated an agreement set forth in a record "to which that party manifested assent." U.C.C. 2B-201(a)(2) (Feb. 1998 Draft).

63. See U.C.C. 2B-201(d) (Aug. 1, 1998 Draft).

64. If the agreement was silent as to whether Fred was representing to MegaROM that the sequence did not violate third parties' copyright or related interests, 2B-401 would supply a warranty from Fred, if Fred is a "merchant," that "the information and informational rights shall be delivered free of the rightful claim of any third person by way of infringement or misappropriation ...." Id. 2B-401(a).

65. Id. 2B-201(e)(1)-(2).

66. See, e.g, Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150 (2d. Cir. 1968), cert. denied, 393 U.S. 826 (1968).

67. U.C.C. 2B-307(b) (Aug. 1, 1998 Draft).

68. Id. 2B-307.

69. See id. 2B-307, at Reporter's Note 1 (citing example of film clip licensed for inclusion in a CD-ROM product; license reasonably includes "right to crop or modify the size of the clip to fit the media ....").

70. See id. at Reporter's Note 2.

71. 17 U.S.C.A. 201(c) (West 1998).

72. See Tasini v. New York Times Co., 972 F. Supp. 804, 820 (S.D.N.Y. 1997).

73. See id.

74. See, e.g., Boosey & Hawkes v. Disney, 145 F.3d 481 (2d Cir. 1998); Cohen v. Paramount, 845 F. 2d 851 (9th Cir. 1988).

75. Compare Cohen, 845 F.2d 851, and Rey v. Lafferty, 990 F.2d 1379 (1st Cir. 1993), cert. denied, 510 U.S. 828 (1993), with Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150 (2d Cir. 1968), cert. denied, 393 U.S. 826 (1968), and Boosey & Hawkes v. Disney, 145 F.3d 481 (2d Cir. 1998).

76. See, e.g., P. Bernt Hugenholtz, Electronic Rights and Wrongs in Germany and the Netherlands, 22 COLUM.-VLA J.L. & ARTS 151 (Winter 1998) (addressing the application of this principle in German and Dutch copyright law).

77. Section 2B-502(1)(A) makes transfers of non-exclusive rights ineffective "if prohibited under other applicable law." See 2B-502(1)(A) (Aug. 1, 1998 Draft); id. at Reporter's Note 1. The Reporter's Notes recognize that under federal copyright policy, the licensee of non-exclusive rights may not sublicense those rights without the licensor's consent. The licensee may pass along her physical copy of a work of authorship, but not together with any copying privileges, unless the licensee effaces or surrenders any additional copies she had made. Cf. 17 U.S.C.A. 117 (West 1998). Section 2B-502(1)(A) does not, however, set forth how the requisite "consent" must be expressed.

For a discussion of non-transferability of non-exclusive copyright licenses, see, for example, In re Patient Educational Media, 210 Bankr. 237, 240 (Bankr. Ct. S.D.N.Y. 1997), and decisions cited therein.

78. Query whether this co-existence is inconsistent with the warranty that author-"merchants" are presumed to extend under section 2B-401(b)(2), that the exclusive rights are indeed exclusive.

79. U.C.C. 2B-308(2)(B) (Aug. 1, 1998 Draft).

80. By contrast, if the license granted exclusive rights, it would be subject to termination, 35 years following execution of the grant, under section 203(a)(3) of the 1976 Copyright Act. Since 2B-308's provision for perpetuity of the license can conflict with the Copyright Act termination right, the federal right must prevail.

81. See id. 2B-502(2).

82. See id. 2B-505(a)(2).

83. See, e.g., Effects Assocs. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990); Eden Toys v. Floralee Undergarments, 697 F.2d 27, 36 (2d Cir. 1982); Pamiloff v. Giant Records, 794 F. Supp. 933, 937 (N.D. Cal. 1992) (The purpose of section 204(a) is "to provide protection for the author and creator of copyrighted material against fraudulent claims of transfer. Thus we understand the policy underlying section 204(a) to be tipped somewhat in favor of the original holder of the copyrighted material.").

84. See U.C.C. 2B-111 (Aug. 1, 1998 Draft). According to Reporter's Note 3, Illustration 1, the contract's terms can be in another, hyperlinked, document that the contractant need not in fact read, so long as the party had the opportunity to review the terms.

85. See U.C.C. 2B-206(a)(1) (Aug. 1, 1998 Draft); id. at Reporter's Note 2. The illustration in the Note concerns participation in a chat room, and the participants' release to the chat-room operator of the right to publish their comments. But if no consideration is offered for the license, then, as a matter of copyright law, the license is revocable.

86. See id. 2B-502.

87. See, e.g., I.A.E. v. Shaver, 74 F.3d 768, 775, 776 n.10 (7th Cir. 1996); PAUL GOLDSTEIN, COPYRIGHT 4.4.1.1 (2d ed. 1998).

88. See 17 U.S.C.A. 501(a) (West 1998) (identifying an infringer as "[a]nyone who violates any of the exclusive rights of the copyright owner ...") (emphasis added). The section 101 definition of "transfer of copyright ownership" excludes non-exclusive licenses. Id. 101.

89. See id. 204(a).

90. U.C.C. 2B-102(a)(3) (Aug. 1, 1998 Draft).

91. Id. 2B-102, at Reporter's Note 3.

92. There may also be a danger that authors, as "merchants," could be bound without authenticating an agreement: 2B-201(d) provides that the authentication requirement may be met, between merchants, if one party sends a record to the other, and the recipient does not timely object to the record's contents. Applied to author contracts, this could mean that the publisher could convert a non-exclusive license into an exclusive license if the publisher sent the author a record characterizing the license as exclusive, and if the author failed to object. Even if that result might be possible under Article 2B, however, it is inconsistent with the Copyright Act's formal requirements: an unresponded-to "confirmation" from the grantee is not a "writing" "signed by the owner of the rights conveyed," 17 U.S.C.A. 204(a) (West 1998).

93. See Konigsberg Int'l., Inc. v. Rice, 16 F.3d 355, 357 (9th Cir. 1993); Pamiloff v. Giant Records, 794 F. Supp. 933, 936 (N.D. Cal. 1992).

94. Under the 1909 Act, one test of whether a contract claim "arose under" the federal copyright law, thereby justifying the development of a "federal common law" of contracts, was whether the controversy "presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim." Harms v. Eliscu, 339 F.2d 823, 828 (2d Cir. 1964) (Friendly, J.). If that analysis still applies to the 1976 Act, the question remains whether section 204(a) implicates distinctive federal policies.

95. 490 U.S. 730, 751-52 (1989).

96. Compare DeSylva v. Ballentine, 351 U.S. 570, 580 (1956) (looking to state law to complete definition of "children" under 1909 Act).

97. 17 U.S.C.A. 102(a) (West 1998) (emphasis added).

98. U.C.C. 205(a) (Aug. 1, 1998 Draft) (emphasis supplied).

99. The photocopied signature may be accepted for recordation, if it is properly certified, but the certification requires that the recorded document be a "true copy of the original, signed document;" that implies that the original document bore an original, not a photocopied, signature. In the Article 2B context, query what would be a "true copy" of the "authenticated record"?

100. See, e.g., Valente-Kritzer Video v. Pickney, 881 F.2d 772 (9th Cir. 1989), cert. denied, 493 U.S. 1062 (1990) (rejecting document executed by author's lawyer; even if lawyer intended to memorialize production agreement, author's own signature or express authorization still required).

101. See U.C.C. 2B-102(a)(3), 2B-113, 2B-116, 2B-119 (Aug. 1, 1998 Draft).

102. Id. 2B-102, at Reporter's Note 34.

103. See id. (explaining that the definition of "record" "broadens the traditional reference to 'writing,' and incorporates electronic records. It does not require permanent storage or anything beyond temporary recordation. Fixation can be fleeting and perception can be either directly or indirectly with the aid of a machine.").

104. 17 U.S.C.A. 101 (West 1998).

105. The contrast in terminology between 201(d)(1), which states "the ownership of copyright may be transferred ... by any means of conveyance" (emphasis supplied), and section 204(a)'s "instrument of conveyance" does not aid resolution of the question whether the memorialization of the transfer need be more stable than a temporary fixation.

106. See U.C.C. 2B-105, Reporter's Note 5 (Aug. 1, 1998 Draft).

107. See discussion, supra Part II .

108. See 17 U.S.C.A. 204(a) (West 1998).

109. See U.C.C. 2B-102(a)(3) (Aug. 1, 1998 Draft).

110. Necessary recourse to oral communications to fill in essential terms of the agreement should not make it vulnerable under 2B-201, since the payment is less than $5,000, and the duration is less than one year (at least, if one understands the license to grant only one-time print publication rights). See U.C.C. 2B-201 (Aug. 1, 1998 Draft).

111. As for whether NEW GREED could obtain its objective by sending a check with language on the back proclaiming that Frances' endorsement constituted an execution of a work made for hire agreement, or an assignment, or an exclusive license, the copyright cases are somewhat inconsistent. Compare Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (7th Cir. 1992) (holding that a work for hire agreement must be executed before the work is completed), with Playboy Enters. v. Dumas, 53 F.3d 549 (2d Cir. 1995), cert. denied, 116 S.Ct. 567 (1995), on remand, 960 F. Supp. 710 (S.D.N.Y. 1997) (holding that a work for hire agreement may be executed after delivery of the work, so long as oral agreement on work for hire status preceded the work's creation.) Note that these standards would not assist NEW GREED, since the work for hire "agreement" was not proposed, orally or otherwise, until after delivery of the work.

112. This example is inspired by U.C.C. 2B-206, Reporter's Note 2, Illustration 1 (Aug. 1, 1998 Draft).

113. U.C.C. 2B-206(a)(1)(A) (Aug. 1, 1998 Draft) (emphasis added). Reporter's Note 1 characterizes a "release" as a "form of a license." Id. at Reporter's Note 1.

114. See 17 U.S.C.A. 106(1)-(3) (West 1998).

115. See, e.g., I.A.E. Inc. v. Shaver, 74 F.3d 768, 772, 776 n.10 (7th Cir. 1996); Avtec-Sys. Inc. v. Peiffer, 21 F.3d 568, 571 n.12 (4th Cir. 1994); MacLean Assocs., Inc. v. Wm. Mercer-Meidinger-Hansen, Inc., 952 F.2d 769, 778-79 (3d Cir. 1991); N IMMER & NIMMER, supra note 27, 10.01[C][5], 10.02[B][5].

116. See, e.g., RICHARD WINCOR, THE ART OF CHARACTER LICENSING, 19-25, 238-48 (1996).

117. Warner Bros. Pictures, Inc. v. Columbia Broad., 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955).

118. See U.C.C. 2B-105(d) (Aug. 1, 1998 Draft).

119. See id. 2B-105(d) (explaining that in case of conflict between Article 2B and state consumer protection measure, the latter prevails).

120. See id. 2B-206(a)(1).

121. See 17 U.S.C.A. 301 (West 1998).

122. This result also suggests that this aspect of the "Maltese Falcon" decision, if it ever was good law, no longer should be.

123. State-based moral rights of integrity may, however, be held preempted under section 301 of the Copyright Act, on the ground that the moral right to preserve the work against alteration or distortion is "equivalent" to the exclusive right under copyright to derivative works. The moral right to attribution, by contrast, has no copyright law analogue, aside from the specific provisions of 17 U.S.C. 106A, the Visual Artist's Rights Act, which protects only "works of visual art" (physical originals, or limited editions signed and numbered up to 200, of the art works).

124. See, e.g., JANE C. GINSBURG, JESSICA LITMAN ET AL., TRADEMARK AND UNFAIR COMPETITION LAW Chapter 9A, "Authors' and Performers' Rights of Attribution" (2d ed. 1996) (discussing the extent to which section 43(a) of the Lanham Federal Trademarks Act protects authors' attribution interests). Query whether a 2B-206 "release" is consistent with that protection.

125. See Interview with Jonathan Tasini, President, the National Writer's Union (Mar. 6, 1998).

126. See, e.g., Letter from Gary L. Griswold, American Intellectual Property Law Association, to Article 2B Drafting Committee (Nov. 18, 1997), available at <http://www.2Bguide.com/docs/sycaipla.html#aipla> (visited Nov. 23, 1998).

127. The document can be found on the software industry web site, but appears to have no credited author. See Article 2B-More than Software (visited Nov. 4, 1998) <http://www.2BGuide.com/docs/eIposition.pdf>.