U.S. Protections for Authors’ Moral Rights to be Reviewed

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By Anandashankar Mazumdar

The question of whether U.S. law adequately protects authors’ rights to be credited and to prevent alteration of their works will be studied by the Copyright Office, according to an announcement Jan. 24.

These protections are part of a system known as “moral rights” outside the U.S. The U.S. has some protections for visual artists but no broad moral rights system.

Content industries like movie producers and book publishers worry that expansive moral rights would interfere with future uses for works they put out.

Jay Z Fends Off Moral Rights

In a recent example, hip hop artist Jay Z fought off a moral rights claim from the family of an Egyptian composer whose work was sampled for the recording “Big Pimpin’.”

Jay Z held a valid license from the copyright owner of the original work, but the family tried to override the license to stop it based on moral rights.

Two years ago, at a hearing of the House IP Subcommittee, Rep. Robert W. Goodlatte (R-Va.), the chairman of the House Judiciary Committee, suggested that Congress consider whether new legislation is needed to protect these rights.

The Copyright Office is asking for public comments on a series of questions regarding to what extent current U.S. law protects the rights of attribution and integrity, what can be learned on the issue from other countries’ legal systems, and whether technological solutions or voluntary actions could be used to protect those rights.

Could Cause Contact Trouble

The most common moral rights are the right of paternity or attribution and the right of integrity, and are required by Berne Convention for the Protection of Literary and Artistic Works of 1886. The right of paternity gives an author the power to insist on being credited. The right of integrity allows the creator to stop a work from being altered or destroyed.

The U.S. avoided signing on to the treaty until 1998, in part because of concern over the moral rights issue.

Depending on how a right of integrity is enacted into law, it could cause problems for contractual relationships that are now routine, according Jane C. Ginsburg, a law professor at Columbia University.

Author Could Use As Leverage

If a novelist has granted a studio the right to make a movie adaptation, then the author shouldn’t have a veto outside of that contract, Ginsburg said.

“They have a license and under their license, they ought to be able to contribute their own authorship, whether it’s the vision that the movie director brings to the novel or whatever,” Ginsburg said.

An even more likely consequence, according to Ginsburg, is that an author might threaten exercise of the right of integrity in order to get more money from a licensee.

Prior to signing onto the Berne treaty, the U.S. took the position that a moral rights system was unnecessary, since they were essentially protected by a combination of federal and state law, as well as aspects of non-copyright law, like the federal trademark statute.

In 1990, Congress enacted the Visual Artists Rights Act, which gives some protections against alteration or destruction to creators of unique or limited edition visual works.

To contact the reporter on this story: Anandashankar Mazumdar in Washington at AMazumdar@bna.com

To contact the editor responsible for this story: Mike Wilczek at mwilczek@bna.com

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