Moral Rights of Authors in the USA

Table of Contents

Introduction

• the right of integrity: mutilation or distortion that would prejudice the author's honor or reputation is not permitted. In French law, this right is called "droit au respect de l'oeuvre" and is mentioned in Article 6 of the French Law No.  57-298 of 11 March 1957.
• the right of attribution: the true author has the right to have his/her name on the work, and a non-authors are prevented from having their names attached to the author's work. In French law, this right is called "droit à la paternité" and is mentioned in Article 6 of the French Law No.  57-298 of 11 March 1957.

• the right of disclosure: the author has the final decision on when and where to publish. In French law, called "droit de divulgation". and is mentioned in Article 19 of the French Law No.  57-298 of 11 March 1957. The publisher must not modify the author's work, except with the author's written consent. Art. 56 of French Law No.  57-298.
• the right to withdraw or retract:when an author's views change, the author may purchase at wholesale price all of the remaining copies of the author's work, then prevent printing of more copies. In French law, this right is called "droit de retrait ou de repentir" and is mentioned in Article 32 of the French Law No.  57-298 of 11 March 1957.
• the right to reply to criticism: For example, French law gives the author a right to reply to a critic and to have the reply published in the same place as the critic's expression. This law honors the doctrine of Justice Brandeis that the proper remedy is "more speech".

• A supervisor appropriates the work of a student or post-doctoral associate and publishes the work with the name of the supervisor as the sole author. The student or post-doctoral associate will be reluctant to protest, because he/she needs letters of recommendation from the supervisor.
• A supervisor adds his name to the work of a student, post-doctoral associate, or technician who works in his laboratory, when the supervisor contributed no ideas and no labor to the work.
• A student, post-doctoral associate, or junior scientist publishes work that includes substantial contributions (e.g., novel ideas) from a professor or supervisor, without the approval of the professor or supervisor.
  1. If the professor's/supervisor's name appears on the publication, the poor quality of the publication could be an embarrassment to the professor or supervisor.
  2. If the professor's/supervisor's name does not appear on the publication, then the professor/supervisor is denied credit for his/her novel ideas.
• An author submits a carefully prepared final draft, which contains no typographical errors and no misspelt words. The editor and typesetter at a journal or book publisher can make a shambles of the author's work, by introducing errors in both grammar and content, substituting homonyms, misspelling words, .... The published version can be an embarrassment to the author.
• The publisher of a book, who owns the copyright in the text, can authorize derivative works (e.g., translations, revised versions) without the approval of the original author.
  1. If the original author's name appears on a bad derivative work, that author will be embarrassed by the poor quality of the work.
  2. If the original author's name does not appear on a good derivative work, that author receives no public recognition for his earlier work.
  3. A publisher can allow one of the original author's enemies to use substantial amounts of the original author's work in a new book. The result might be harmful to the original author's reputation.
• Professor makes depreciating or demeaning remarks about discoverer (e.g., "student in my laboratory, girl in my laboratory, my technician"). Rank or job title should not affect credit given to a discoverer.

contract law

view of U.S. Congress

1. the common law of misrepresentation and unfair competition,
2. § 43(a) of the Lanham Act, 15 USC § 1125(a)(1)(A), which prohibits "false designation of origin, false or misleading description of fact" that is "likely to cause confusion, ... mistake," or deception about "the affiliation, connection, or association" of a person with any product or service.
3. defamation (libel) law.

• the right to claim authorship
• the right to prevent his/her name from being attached to works that he/she did not create
• the right to prevent use of his/her name as the author after mutilation, distortion, or other modification of the work that is prejudicial to his/her honor or reputation

• prevent any intentional mutilation or distortion of the work that is prejudicial to his/her honor or reputation
• prevent destruction of a work of recognized stature

case law in the USA

1. Clemens v. Belford, Clark & Co., 14 F. 728, 730-731 (C.C.N.D.Ill. 1883) (Clemens sued publisher for unauthorized reprinting of his works. Clemens had not copyrighted his works, so they were in the public domain and could be reprinted. Clemens asserted that the publisher had infringed his common law trademark, "Mark Twain", but the court rejected that legal theory. The following quotation is only dicta.)
   

   Undoubtedly an author has the right to restrain the publication of any of his literary work which he has never published or given to the public. So, too, an author of acquired reputation, and, perhaps a person who has not obtained any standing before the public as a writer, may restrain another from the publication of literary matter purporting to have been written by him, but which, in fact, was never so written. In other words, no person has the right to hold another out to the world as the author of literary matter which he never wrote .... Any other rule would permit writers of inferior merit to put their compositions before the public under names of writers of high standing and authority, thereby perpetrating a fraud not only on the writer whose name is used, but also on the public.

2. Gershwin v. Ethical Pub. Co. Inc., 1 N.Y.S.2d 904 (1937)(magazine article falsely attributed to plaintiff, plaintiff recovered for libel).
3. Granz v. Harris, 198 F.2d 585 (2dCir. 1952)(sale of abridged recordings breached contract). In dicta, the court said it was unlawful under the tort of unfair competition to present an abridged performance and describe it as the performer's work. Id. at 588. The concurring opinion contains the following survey of American law in 1952:

   I agree, of course, that, whether by way of contract or tort, plaintiff (absent his consent to the contrary) is entitled to prevention of the publication, as his, of a garbled version of his uncopyrighted product. This is not novel doctrine: Byron obtained an injunction from an English court restraining the publication of a book purporting to contain his poems only, but which included some not of his authorship. American courts, too, have enforced such a right. Those courts have also enjoined the use by another of the characteristics of an author of repute in such manner as to deceive buyers into erroneously believing that they were buying a work of that author. Those courts, moreover, have granted injunctive relief in these circumstances: An artist sells one of his works to the defendant who substantially changes it and then represents the altered material to the public as that artist's product. Whether the work is copyrighted or not, the established rule is that, even if the contract with the artist expressly authorizes reasonable modifications (e.g., where a novel or stage play is sold for adaptation as a movie), it is an actionable wrong to hold out the artist as author of a version which substantially departs from the original. Under the authorities, the defendant's conduct here, as my colleagues say, may also be considered a kind of 'unfair competition' or 'passing off.'

   Granz v. Harris 198 F.2d 585, 589 (2dCir. 1952)(Frank, J., concurring) [footnotes and citations omitted].

4. Rich v. RCA Corp., 390 F.Supp. 530 (S.D.N.Y. 1975) (singer gets injunction against record company's use of current photograph of singer on jacket of re-release of old songs).
   
5. Gilliam v. ABC, 538 F.2d 14 (2dCir. 1976) (ABC television network enjoined from editing Monthy Python television program). The court found the right in 15 USC § 1125(a), and specifically found that U.S. Copyright law did not recognize moral rights of authors. Id. at 24, 26.
6. Smith v. Montoro, 648 F.2d 602 (9thCir. 1981) (removal of actor's name from film credits was valid claim under Lanham Act).

moral rights of authors rejected by courts in the USA

Plaintiff advances another theory which needs little discussion. It is predicated upon the contention that there is a distinction between the economic rights of an author capable of assignment and what are called 'moral rights' of the author, said to be those necessary for the protection of his honor and integrity. These so-called 'moral rights,' so we are informed, are recognized by the civil law of certain foreign countries. In support of this phase of his argument, plaintiff relied upon a work by Stephen P. Ladas entitled 'The International Protection of Literary and Artistic Property' (page 575, et seq.). It appears, however, that the author's discussion relied upon by plaintiff relates to the law of foreign countries. As to the United States, Ladas in the same work states (page 802): 'The conception of 'moral rights' of authors so fully recognized and developed in the civil law countries has not yet received acceptance in the law of the United States. No such right is referred to by legislation, court decision or writers.'

What plaintiff in reality seeks is a change in the law of this country to conform to that of certain other countries. We need not stop to inquire whether such a change, if desirable, is a matter for the legislative or judicial branch of the government; in any event, we are not disposed to make any new law in this respect.

The wrong which is alleged here is the use of plaintiffs' music in a moving picture whose theme is objectionable to them in that it is unsympathetic to their political ideology. The logical development of this theory leads inexcapably [sic] to the Doctrine of Moral Right. There is no charge of distortion of the compositions nor any claim that they have not been faithfully reproduced. Conceivably, under the doctrine of Moral Right the court could in a proper case, prevent the use of a composition or work, in the public domain, in such a manner as would be violative of the author's rights. The application of the doctrine presents much difficulty however. With reference to that which is in the public domain there arises a conflict between the moral right and the well established rights of others to use such works. Clemens v. Belford Clark & Co., [14 F. 728 (1883)]. So, too, there arises the question of the norm by which the use of such work is to be tested to determine whether or not the author's moral right as an author has been violated. Is the standard to be good taste, artistic worth, political beliefs, moral concepts or what is it to be? In the present state of our law the very existence of the right is not clear, the relative position of the rights thereunder with reference to the rights of others is not defined nor has the nature of the proper remedy been determined. Quite obviously therefore, in the absence of any clear showing of the infliction of a wilful injury or of any invasion of a moral right, this court should not consider granting the drastic relief asked on either theory. The motion is accordingly denied in all respects.

Plaintiff, in asking for such relief, relied in part not on the contract but on the doctrine of artists' 'normal right,' a compendious label of a 'bundle of rights' enforced in many 'civil law' countries. Able legal thinkers, pointing out that American courts have already recognized a considerable number of the rights in that 'bundle,' have urged that our courts use the 'moral right' symbol. Those thinkers note that the label 'right of privacy' served to bring to the attention of our courts a common center of perspectives previously separated in the decisions, and that the use of that label induced further novel and valuable judicial perspectives.

To this suggestion there are these objections:

1. 'Moral right' seems to indicate to some persons something not legal, something meta-legal.
2. The 'moral right' doctrine, as applied in some countries, includes very extensive rights which courts in some American jurisdictions are not yet prepared to acknowledge; as a result, the phrase 'moral right' seems to have frightened some of those courts to such an extent that they have unduly narrowed artists' rights.
3. Finally, it is not always an unmitigated boon to devise and employ such a common name.   ....

Granz v. Harris 198 F.2d 585, 590 (2dCir. 1952)(Frank, J., concurring) [footnotes and citations omitted](relief was granted on a contract theory).

Without rejecting the doctrine of 'moral right,' I think that, in the light of the foregoing, we should not rest decision on that doctrine where, as here, it is not necessary to do so.

There is apparently a right under continental law, which is similar to the 'property right' asserted by petitioner, the so-called 'moral right.' [citation deleted] This seems to encompass the right to prevent the 'distortion, mutilation or other alteration' of an author's work. See art. 6bis, §(1) of the Brussels Convention (1948) [a revision of Berne Convention]; and that right may pass to the heirs of the author in certain circumstances. See art. 6bis, §(2) of the Brussels Convention (1948). Whether it would permit the heirs of Glenn Miller to protect 'The Glenn Miller Story' is unclear. But, in any event, the moral right, as such, is not recognized in this country.

But no jurisdiction has created the sort of moral right Weinstein invokes, let alone created any moral right through judicial decision. A federal court is not about to foist so novel a principle on Illinois. There is no reason to suspect that the courts of Illinois are just about to adopt an approach that no American jurisdiction follows as a general matter.

The copyright law of most countries of the world, recognizes a so-called "moral right" (droit moral) that protects authors from modification of their works in such a manner as to affect the artistic impression of the work. While the moral right doctrine as such has never been a part of United States copyright law, the case Edison v. Viva International, 70 A.D.2d 379, 421 N.Y.S.2d 203 (1st Dept.1979), implies that under certain circumstances an author's work may be entitled to protection.

If a joint work is marred by errors reflecting unfavorably on his coauthor, with quantifiable adverse effects on the coauthor's career, the coauthor might conceivably have some legal remedy, but it wouldn't be under the Copyright Act. We don't know what it would be under: possibly the law of contracts; in Europe it might be a violation of the author's "moral right" (droit moral), the right to the integrity of his work; and there are glimmers of the moral-rights doctrine in contemporary American copyright law.