Copyright provides creators of copyrightable works with certain economic rights. These economic rights provide creators with control over their copyright-protected materials and a way to earn compensation from exploiting their works. However, and equally importantly, copyright also provides creators with less well understood protections known as “moral rights” – the purpose of which is to protect creator reputations.
What Are Moral Rights?
A creator is said to have the “moral right” to control his/her work. These moral rights protect the personal and reputational, rather than purely monetary, value of a work to its creator. As such, moral rights empower creators with the right to receive or decline credit for work, to prevent work from being altered without permission, to control who owns the work, and to dictate whether, and in what way, the work is displayed.
Moral rights are inalienable and perpetual, ending only with the life of the creator. Further, moral rights take precedence over the enforcement of contracts and are distinct from copyright ownership. Even if a creator has conveyed away a work or his/her copyright in it, he/she retains the moral rights to the work under VARA (detailed below). Creators may, however, waive their moral rights. This freedom to include or exclude moral rights from an agreement is a key element of copyright law in the United States.
The Visual Artists Rights Act (VARA)
A key development in this history of droit moral (moral right) in the US was the passage of the Visual Artists Rights Act (VARA) of 1990 (17 U.S.C. §106A), which amended the Copyright Act of 1976 by expressly providing for limited federal recognition of moral rights.
VARA’s scope is limited, applying only to “works of visual art,” which are defined as (1) paintings, drawings, prints, or sculptures existing in a single copy or in specified limited edition copies or (2) still photographic images produced for exhibition purposes only, existing in a single copy signed by the author or in certain limited edition copies. All other works (including motion pictures, literary works, and all “works made for hire”) are outside the scope of the Act, as are reproductions of works of visual art other than the specified limited edition copies.
VARA recognizes both attribution and integrity rights. The former includes the rights to claim authorship of the work and to prevent the use of one’s name as the author of a work created by another. In the latter, the VARA statute establishes an overlapping attribution/integrity right “to prevent any intentional defacement, distortion, mutilation, revision, or other modification of that work which would be prejudicial to his or her honor or reputation” and “to prevent any destruction of a work of recognized stature,” regardless of who owns the work. The moral rights enforced by VARA are detailed below.
What Are The Rights Of Moral Rights?
“Moral Rights” refers to a grouping of rights, the two most critical of which are the rights of paternity and integrity. Other moral rights established by VARA include the rights of divulgation and withdrawal. Let’s now detail in brief each of these moral rights provided by VARA.
The Right Of Divulgation
Also known as the “Right Of Disclosure”, this right assures that the artist is the sole judge of when his/her work is a completed creation, and if and when it should be submitted to the public. The creator has complete control of the work’s public disclosure.
The Right Of Withdrawal
Also known as the “Right of Rescission”, or “droit de repentir”, this right secures to the artist the right to modify or withdraw his/her work after having brought it before the public or transferred it to another person. Creators can retract at any time their works from public circulation that they feel no longer best represent them or their views.
The Right Of Paternity
This right states that a creator has the following three rights: (1) the right to have his/her name attached to his/her work, (2) the right to prevent the works of others from being attributed to him/her, and (3) the right to prevent his/her work from being attributed to others.
The Right Of Integrity
Congress intended the right of integrity to further the public interest in preserving and protecting works of visual art and thereby preserving the integrity of our shared culture. As defined under VARA, the right of integrity states that creators have (1) the right to prevent any intentional distortion, mutilation, or other modification that would be prejudicial to the artist’s honor or reputation, and (2) the right to prevent any destruction of a work of recognized stature.
As an additional note, both the right of paternity and the right of integrity have been taken up in Article 6bis of the Berne Convention, which states: “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.”
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