Copyright and moral rights - Copyright Corner

Information Outlook, Dec, 2002 by Laura Gassaway

Around the world, copyright law tends to be based on either natural law or utilitarian principles or, in some countries, a combination thereof. The European view of copyright is based on natural law concepts; in other words, an author's rights are personal to him or her. This model recognizes "moral rights," a translation from the French term droit moral. Moral rights ensure that authors have the right to control their work and acknowledge that the reputation or honor of the creator of the work can be adversely affected without the right of control. The rights are personal to the author because a work created by an author is infused with his or her personality. In other countries, not only are these rights personal to the author, but they may be of potentially infinite duration, since other countries lack the provision in the U.S. Constitution that restricts copyright to "limited times."

Copyright law in the United States is based primarily on utilitarian principles, which are economically rather than personally based. Even the constitutional clause is economically based--exclusive rights are economic rights. However, under a variety of laws (including one provision of the Copyright Act), the law does provide some of the moral rights that are available to authors in other countries. So, to some extent, U.S. law is a hybrid.

The predominant moral rights in Europe are paternity and integrity. Paternity is the right to have a work identified as having been created by a particular author. Integrity is the right to ensure that the work is not altered in a way that is prejudicial to the author's reputation. These two rights are mentioned in the Berne Convention; some other moral rights are not included in the treaty but are covered by national law in some countries. For example, French law provides the following additional rights:

1. The right of disclosure, which allows the author to make the final decision on when and where to publish. Additionally, this right prohibits a publisher from changing or modifying an author's work without the written consent of the author.

2. The right to reply to criticism, which gives authors the right to reply to critics in the same place that the critics' comments appeared.

3. The right to withdraw or retract, which enables authors to reflect changed views by buying remaining copies of their works at a discounted price. Authors may also prevent the printing of additional copies of such works.

When the United States joined the Berne Convention, (1) the moral rights issue came to the fore in this country. However, no moral rights provision was included in the implementing legislation, because Congress concluded that various state and federal laws afforded U.S. authors the minimum protection necessary for Berne accession. These laws include trademark law as well as laws governing misappropriation, defamation, and the rights of publicity and privacy. Additionally, 11 states already had some moral rights laws on their books.

The one area in which it was determined that moral rights had to be specifically included in U.S. law was for works of visual art. Thus, in 1990, Congress passed the Visual Artists' Rights Act (VARA), which. gave the rights of attribution and integrity to works of visual art created after 1990. The statute applies only to works of visual art--defined as original works of art such as paintings, sculpture, and pictorial works--and to 200 or fewer signed and numbered reproductions of these works. For these works, the rights extend only for the life of the artist, rather than the usual life plus 70 years. The reason for this shorter term is that the rights are personal to the artist, and Congress believed that the heirs of an artist would be unable to speak for the creator of the work.

Section 106A specifies the rights of the artist under VARA. Attribution is the right to have a work attributed to the artist. It is also the right to prevent the attribution to the artist of a work created by another and the right to prevent the attribution to the artist of a work initially created by the artist but later distorted, mutilated, or otherwise modified in a manner that is "prejudicial to his or her honor or reputation."

More important is the right of integrity: the right to ensure that a work is not materially altered or defaced. The right of integrity is designed to protect both the artistic integrity of the creator and the physical integrity of the work of art. The rationale behind the integrity right is to protect the artist's reputation and to preserve the work for posterity as an artifact of present culture. However, this protection is limited, as the right endures only for the life of the artist. The integrity right is violated only if the artist's work is intentionally distorted, mutilated, or otherwise modified, and only if such modification would be prejudicial to the artist's honor or reputation. The statute is silent as to what proof is required of prejudice to honor or reputation. The few courts that have addressed this issue since VARA was enacted have required that the work be one of "recognized stature" before any alterations can be found to be harmful to the artist's reputation.