Moral Rights in U.S. Copyright Law

What Are Moral Rights in U.S. Copyright Law

In this post, you will learn about moral rights in U.S. copyright law that benefit certain creators of specific copyright-protected materials. Moral rights protect the reputation of a creator as opposed to economic rights which provide creators with control over their copyright-protected materials and a way to earn money from exploiting them. In January 2017, the United States Copyright Office announced that it’s undertaking a study on the moral rights of attribution and integrity.

Moral Rights in U.S. Copyright Law

Moral rights in Berne ConventionOn 23 January 2017, the United States Copyright Office (USCO) announced that it is undertaking a study on moral rights for authors. The study will focus on the moral rights of attribution and integrity. The study will examine how the U.S. Copyright Act and other federal and state laws protect these moral rights and whether it’s necessary to provide further moral rights protection in the U.S.. See the notice of inquiry on moral rights study for further information.

Moral rights protect the personality or reputation of a creator (and not necessarily the owner) of a copyright-protected work. On the other hand, economic rights — like the rights of reproduction and public performance — help a creator control their work and earn compensation.

UPDATE: Comments on the moral rights study submitted by interested parties to the USCO can be viewed here.

Moral Rights in International Copyright Law

Moral rights originate from the French droit moral and are seen as being personal to the author or creator of a work. Moral rights have a long history in international copyright law. Article 6bis of the leading international copyright treaty, the Berne Convention, states:
(1) 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.

Like all provisions in Berne, the 174 Berne member states, including the U.S., must meet the minimum standards set out in Berne. Thus, each member state must provide for moral rights of paternity and integrity. Countries are free to go beyond these minimums and provide further rights, such as the right of association, or to withdraw permission to use a work. In some countries, moral rights may be waived (e.g., Canada) whereas in other countries (e.g., France) authors may not waive their moral rights. Also, the duration of moral rights varies from country to country. In the U.S., moral rights expire upon the death of the author, in Canada they last 50 years after the author’s death, and in France they are perpetual.

Right of Paternity

This right refers to the author’s right to have their name on a work, to use a pseudonym and to remain anonymous. Generally, an author has this right whenever they have economic rights in a work, and this right applies in relation to uses covered by the economic rights. For example, an author has the right to have their name on the cover of their book.

Right of Integrity

The second component of moral rights, as set out in Berne, is the right of integrity. This is the right of the author to object to any changes to their work that may harm their reputation as an author. This harm would be a question of fact to be determined in court through the testimony of witnesses. For example, painting a moustache on the Mona Lisa (were the Mona Lisa still protected by copyright) would likely be a violation of Da Vinci’s moral rights. Closer to home, manipulating a scanned photograph may also be a violation of moral rights, if prejudicial to the honor or reputation of the author of the photograph.

Moral Rights in the U.S.

When joining the Berne Convention in 1989, the U.S. amended its Copyright Act to include moral rights. In the U.S., moral rights are also arguably protected under various federal and state laws, including explicit protection through an amendment in the U.S. Copyright Act by the Visual Artists Rights Act (VARA) of 1990.
Unlike Berne, VARA protects only one group of authors: visual artists, more accurately those who create “works of visual art.” These works include paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 or fewer signed and numbered copies. Posters, maps, globes, motion pictures, electronic publications, and applied art are explicitly excluded from VARA.

VARA gives visual artists the right to claim authorship in their work, and to prevent the use of their name in association with a work. In addition, artists are granted the right to prevent the intentional distortion, mutilation or other objectionable modification of their works. Artists who qualify for federal moral rights protection can also prevent any destruction of certain works. Under VARA, moral rights are not transferable by license or assignment, but are waivable (in writing). The rights end with the life of the author (unlike economic rights, which endure for 70 years after the death of the author).

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