If you follow our blog, you may have noticed moral rights come up in a few of our previous posts (“A Primer on Fearless Girl”, “Theories of copyright”, and “Copyright in Campaigns”). You may have also noticed moral rights in recent communications from the U.S. Copyright Office. Moral rights are not often raised in the United States, and with good reason. Moral rights, as distinguished from economic rights, are given only partial protection under U.S. copyright law. Here, we give an introduction to moral rights and help to distinguish them from economic rights.
What’s the Difference between Economic Rights and Moral Rights?
In the U.S., one of the main purposes of copyright law is to protect a copyright owner’s economic rights. This is one of the inspirations behind the limited monopoly afforded to rights holders under copyright law. These economic rights, such as the ability to make and distribute copies, don’t protect against injuries to an artist’s reputation or honor. They are intended to allow copyright owners to profit from copyrighted works. This system of incentives is meant to encourage creativity, and to help individuals support themselves as they pursue their creativity, whether that be in painting, architecture, or literature.
Moral rights are intended to protect a creator’s “honor or reputation”. In addition, moral rights cannot be transferred to another individual or to a corporate entity. They remain with the creator of a work, even if the rest of that creator’s copyright is transferred.
A photographer is very active in a religious faith that prohibits both the use of tobacco and the consumption of alcohol. The photographer sells one image and its related copyright to an advertising agency. The advertising company then uses the image in a campaign for a cigarette company; their ads also feature alcohol.
In a country where copyright protects only economic rights, the photographer has no say in what happens to the photograph after it is sold. There would be no recourse against the advertising company because the photographer’s honor and reputation have no protection under copyright law. In the alternative, in a country where copyright also protects moral rights, the photographer may be able to protect their work from “distortion [or] mutilation”, like having alcohol or drugs incorporated with their work, if the changes offend the honor or reputation of the photographer.
How are Moral Rights Handled in the United States?
Does the U.S. grant moral rights in addition to economic rights? Not to sound too much like a lawyer, but the answer is — it depends. When the United States agreed to join the Berne Convention in 1988, we agreed to include in our copyright laws certain minimum protections for creators. One of these minimum protections was moral rights. However, the protections of the Berne Convention far exceed the protections offered in the United States. The Berne Convention covers a wide variety of types of works, such as “books, pamphlets, and other writings; lectures, addresses, sermons and other works of the same nature…”, in addition to visual artworks, like paintings or sculptures. Creators of works in countries that strictly adhere to Berne may object to any “distortion, mutilation, or other modification of, or other derogatory action in relation to” their work.
In the United States, on the other hand, only works of visual art are given moral rights protections under copyright law. This was done through the Visual Artists Rights Act (VARA), 17 U.S. Code § 106A. VARA does not protect literary works (such as books and pamphlets), as they would not be considered works of visual art. Furthermore, there are specific limitations on what can constitute distortion or mutilation. For example, changes in how a work is displayed will not constitute a distortion or mutilation for the purpose of U.S. copyright law. VARA grants to the creator of a “work of visual art” the right to claim authorship of their works, deny authorship of works that they did not create, and prevent the continued use of their name on any of their works that have been distorted, mutilated, etc. In addition, a creator:
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
Should the United States Extend its Moral Rights Protections?
This is an open question in U.S. Copyright. In January of 2017, the U.S. Copyright Office undertook “a public study on moral rights for authors, specifically the rights of attribution and integrity.” Some believed this was the first step to extending moral rights protection. Although no extensions were made, the question of additional moral rights protection is one that the United States may need to address, if for no other reason than to examine our compliance with the Berne Convention.
What do you think of the United States’ handling of moral rights? Do we need additional protections? Is it fine as it is? Or should there be even fewer protections? We would love to hear your thoughts on this issue, and look forward to discussing it with you in the comments!
By Marley C. Nelson, Rights Management Specialist, Copyright Resources Center, The Ohio State University Libraries