Moral Rights… WHAT ARE THOSE?

Originating from the French term droit moral, moral rights refer to the personal rights of an author of any creative work related to the association between the author and the work itself.  Moral rights go beyond the monetary and economic value of the works and focus on the integrity of the work and protecting the reputation of the author.

The United States Copyright Office began an analysis of the United States moral rights framework in January of 2017. In April 2019 the office released a report based on its findings. This report is VERY in depth- about 157 pages –  and can be found here. If you would like to REALLY know everything the US has to offer in regard to moral rights, then definitely take a peek at the whole report.  If time is short, this blog is a good introduction.

Who Has Moral Rights?

The author or artist of a work is entitled to moral rights. It sounds simple, right? Well, it is a little more complicated than it appears – you see, moral rights are recognized differently throughout the world. The EEU and many European countries have very high moral rights protection – while the United States is a little more relaxed. The Berne Convention is the best place to look to try and understand moral rights and what they give to an author. Article 6bis of the convention states that the author has rights independent of the economic rights – specifically the right to claim authorship and object to any distortion, mutilation or any other derogatory action relating to the said work that would be prejudicial to their honor or reputation. What does that mean in plain language? To sum it up, there are two moral rights that all members of the Berne Convention must provide to authors – the right of attribution and the right of integrity.

Right of Attribution

The right of attribution – sometimes called the right of paternity – means that the author has the right to have their name on a work – or their pseudonym if they prefer. Seems simple… however, confusion arises for most when authors have transferred their rights in a work to someone else. If JK Rowling transferred all of her copyrights in her Harry Potter books to me can I put my name on the books as author? NO! Moral rights remain with the author even after they have transferred copyrights to someone else (this right of attribution can be waived but we won’t get into that today). Why would an author still want to keep their name on a work they transferred away for other purposes? Well, this goes back to the original idea of moral rights being meant to protect and recognize the inherent connection between an author of a creative work and the work itself.

Right of Integrity

The right of integrity is the other right granted authors by the Berne Convention and this right deals with – you guessed it – the integrity of a work and its effect on the reputation of the author. Even after an author has transferred their rights in a work people may still associate that author with the work. If a subsequent rights holder acquired JK Rowling’s magical Harry Potter works and turned the characters into deviant mass murderers – people may start to associate that content with Ms. Rowling, and it could affect her reputation as an author of family friendly works.

So Back to the United States – Moral Rights or Wrong?

Guess what – the United States is a member of the Berne Convention! That means the United States MUST protect the right of attribution and the right of integrity for all its authors. The United States, and any member of the Berne Convention, can create statutes and laws that expand moral rights – but cannot limit them!

So, the United States over the past 30 years has started to expand – slightly – on the protection of moral rights. When joining the Berne Convention in 1988, the United States met the minimum requirements for protection of moral rights through various federal and state laws. Over time, the moral rights have been enlarged through amendments to title 17 of the United States Code, and judicial decisions have addressed unfair competition and misappropriation laws, especially Dastar Corp. v. Twentieth Century Fox Film Corp. The US has even created the Visual Arts Rights Act (VARA), the first legislation enacted that specifically addresses moral rights, in certain works only – you guessed it, visual arts.

What did the United States Copyright Office Report Conclude Regarding Moral Rights?

As mentioned earlier, the report is very in depth so there was A LOT of information discovered, but the main outcome of this analysis was positive. The United States is doing a pretty good job protecting an author’s right of attribution and right of integrity. The report even suggests that there is no need – right now – to adopt a blanket moral rights law. They find the combination of laws, judicial decisions, and acts is doing a good enough job for now! Is there room for improvement? Always, specifically – suggested – in the areas of the Lanham Act, VARA, 17 U.S.C. § 1202, and the right of publicity.

For more information on moral rights, how to properly protect your moral rights or any other intellectual property needs, contact us at (561) 953-9300 or through our website form to schedule your free consultation.