Sociology Index

Moral Rights And Copyrights

Intellectual Property Rights, Copyright Law

The right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity (retain the originality) of the work are some examples of moral rights. Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyright, thus even if an artist has assigned their rights to a work to a third party they still maintain the moral rights to the work. Some jurisdictions allow for the waiver of moral rights. In the United States, the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but only applies to works of visual art.

Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. Jurisdictions that include moral rights in their copyright statutes are called droit d'auteur states, which literally means "right of the author".

France recognizes four categories of “moral rights” that differ from U.S. law. The first is the “right of disclosure” – the right to decide whether or not to publish. Under French law, even a paraphrase of an unpublished writing could violate le droit moral. See Sheri Falco, “The Moral Rights of Droit Moral: France’s Example of Art as the Physical Manifestation of the Artist,” Archive, Vol. 2, No. 206 (n.d.).

United States became a signatory to the convention in 1988, but it still does not completely recognize moral rights as part of copyright law It recognizes moral rights as part of other bodies of law, such as defamation or unfair competition.

Article 6bis of the Berne Convention protects attribution and integrity, stating:
Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. -- Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986).

The actual author or co-author (usually a hired employee) may not want to be associated with a personally disliked work. However, if the work must be credited and published to recover its costs, the actual author may decide to hide behind a pseudonym as a way to practically "abandon" the moral rights.

In Dastar v. Twentieth Century Fox, the Supreme Court quashed an attempt to bootstrap moral rights onto works in the public domain through section 43(a) of the Lanham Act.

Coincidentally, Twentieth Century Fox had previously been the defendant in a similar suit almost sixty years earlier. Russian composers, whose work was in the public domain, sued Fox for using their work in the film The Iron Curtain, regarded as anti-Communist. The state court (Dastar was based on federal law, this was in state court) found against the composers on similar grounds.

Books On Moral Rights and Copyrights

Protecting Moral Rights Under Copyright Law: The Stride Forward by POKU ADUSEI.

The Soul of Creativity: Forging a Moral Rights Law for the United States (Stanford Law Books) by Roberta Rosenthal Kwall.

Toward an Ameircan moral rights in copyright : An article from: Washington and Lee Law Review by Ilhyung Lee.

Deriving a (moral) right for creators : An article from: Texas International Law Journal [HTML] (Digital) by Thierry Joffrain.

The Moral Rights of Authors and Performers : An International and Comparative Analysis Oxford University Press, USA; 6th edition by Elizabeth Adeney.