Moral Rights


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 . While the United States became a signatory to the convention in 1988, it still does not completely recognize moral rights as part of copyright law, but rather as part of other bodies of law, such as defamation or unfair competition. Those jurisdictions that include moral rights in their copyright statutes are called droit d'auteur states, which literally means "right of the author".

Moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work (i.e., it cannot be distorted or otherwise mutilated). 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.

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).

Moral rights of visual artists in the United States

In the case of Carter v. Helmsley-Spear Inc. 861 F. Supp. 303 (S.D.N.Y. 1994) it was held that the removal of a sculptural work incorporated in the lobby of an office building would violate the rights of the artists under the Visual Artists Rights Act of 1990 stating, inter alia:

"that the author of a work of visual art has the right to prevent intentional alteration of the work that would prejudice the artist's honor or reputation, and to prevent destruction of a work of recognized stature."

While this case was ultimately overturned on appeal because it was held that the sculptural work was a work made for hire (71 F.3d 77, 80 (2d Cir. 1995), cert. denied 116 S. Ct. 1824 (1996)), it was the first case to intepret VARA provisions applying to visual artworks.

In other cases, 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.

One such pseudonym was Alan Smithee, a name used by discontented Hollywood film directors who no longer want to be credited between 1968 and 1999. In case the work is unfinished, the use of a pseudonym may be considered an approval from the original author so the copyright owner could do whatever it takes to finish and market the unwanted work.

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