Moral Rights in Copyright

In the last month or so, we've talked about the bundle of economic rights the owner of a copyright has in a copyrighted work.  These include the right to reproduce the copyrighted work in copies or phonorecords, the right to prepare derivative works based upon the copyrighted work, the right to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending, the right to publicly perform literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, the right to publicly display literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, and the right to publicly perform sound recordings by means of a digital audio transmission.  As economic rights, these rights go with the ownership of the copyrighted works.

But art is about more than economics-- it is also in many ways an extension of the person who created the art.  Accordingly, many countries have worked to protect what are known as the moral rights of the artist.  The United States adheres to the International Union for the Protection of Literary and Artistic Works (known as "The Berne Convention"), which requires the protection of these rights.  These rights stay with the creator of a copyrighted work, no matter the ownership of the copyrighted work.  The two most basic moral rights are the right of attribution and the right of integrity.  The right of attribution ensures that the author will continue to be recognized as the creator of the work, and that others may not claim the authorship of a work.  The right of integrity allows the author to keep others from distorting or misrepresenting his work. 

In addition to the protections of the Berne Convention, the Visual Artists' Rights Act of 1990 provides the right of attribution and integrity to artists of visual works. Visual works are defined as

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

The Visual Artists' Rights Act does not apply to  

1. any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

2. any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

3.  any portion or part of any item described in clause (i) or (ii);

4.  any work made for hire; or

5.  any work not subject to copyright protection.

One very important aspect of moral rights is that the artist who creates the work retains the rights, even if he assigns his other rights to another.  Moral rights cannot be assigned.  The only way he may lose his moral rights is by specifically waiving his rights in a signed writing.  Otherwise, the moral rights endure through the lifetime of the artist.

Besides the Berne Convention and theVisual Artists' Rights Act, the Lanham Act may be used to protect the right of attribution through its prohibition of false designation of origin.  Further, there are state contract, privacy, unfair competition, and defamation laws that may protect certain moral rights.  

That's our overview of the economic and moral rights in copyright.  We'll move on to infringement next.  Send us your questions or comments, or post them on the blog.  The email is JDellinger@mainspringlaw.com.  We also have a free pamphlet discussing copyright law as it effects small businesses and individuals.