Moral rights in copyright law protect the personal, non-economic interests of the creator. Rather than focusing solely on financial gain or the ability to copy and distribute a work, moral rights preserve the integrity and attribution of a work—such as the artist’s right to be named as the creator, or to object to changes that would harm their reputation.
Although the concept is recognized in many jurisdictions around the world, the scope and enforcement of moral rights vary significantly. Understanding how moral rights function in the relevant country—or countries—is essential when creating, licensing, or using copyrighted works.
What Are Moral Rights?
- Right of Attribution (Paternity Right)
- Allows the author or creator to be properly credited for the work.
- The right to remain anonymous or use a pseudonym can also be included here.
- Right of Integrity
- Protects the author’s work from unauthorized alterations, distortions, or modifications that could harm the creator’s honor or reputation.
- In some jurisdictions, this can also prevent destruction of the work.
- Additional Rights in Some Jurisdictions
- Right of Disclosure: Deciding when or how the work is first published.
- Right of Withdrawal: In rare cases, the ability to withdraw a published work from circulation if the author’s views change drastically.
Where Do Moral Rights Apply?
- International Treaties
- The Berne Convention for the Protection of Literary and Artistic Works (to which many countries are signatories) includes provisions for moral rights.
- However, the exact scope and enforcement differ from country to country.
- Europe
- European nations generally have strong moral rights protections.
- For instance, in France, moral rights are perpetual, inalienable, and cannot be waived, meaning they last even after the economic rights expire.
- Canada
- Moral rights are also protected and cannot be assigned, though they may be waived in certain contracts.
- They last for the same duration as the economic rights (i.e., typically the life of the author plus 50 years in Canada).
- United States
- Moral rights are recognized in a limited context (mainly under the Visual Artists Rights Act of 1990 (VARA)), and primarily for certain categories of visual art (e.g., paintings, sculptures, limited-edition photographs).
- Attribution and integrity rights under VARA only apply to a narrow scope of “works of visual art.” Outside of this, U.S. law focuses more on economic copyright interests and less on moral rights.
- Other Jurisdictions
- Many countries in South America, Asia, and elsewhere have some form of moral rights, often stemming from their implementation of the Berne Convention. The details vary widely, so local law must be checked.
What to Ask Your Lawyer When Licensing a Work with Moral Rights
When you are licensing (or acquiring a license for) a copyrighted work in a jurisdiction that recognizes moral rights, here are some key questions to raise with your legal counsel:
- Scope of Moral Rights in the Relevant Jurisdiction
- Question: How do moral rights apply in this specific country?
- Consideration: Ask your lawyer to clarify what moral rights exist, their duration, and how they might affect your intended use of the work.
- Waiver vs. Assignment vs. Non-Waiver
- Question: Can moral rights be waived or must they remain intact?
- Consideration: In many jurisdictions, moral rights cannot be assigned or sold, but they may be waivable to varying degrees. If your project requires the freedom to adapt or alter the work, you will need clarity on whether or not the creator has waived their rights (and to what extent).
- Adaptation and Modification
- Question: Are you planning to adapt, edit, or otherwise modify the work?
- Consideration: Check whether the license allows for such changes, and how moral rights laws might limit or permit alterations. In some jurisdictions, even a contract clause permitting modifications might be overridden if the author’s reputation could be harmed.
- Attribution Requirements
- Question: Will you be obliged to credit the author, and in what manner?
- Consideration: Specify in the license agreement how attribution must appear (e.g., on-screen, in publications, in metadata, etc.). Discuss whether the author retains the right to withdraw their name from the work (if, for instance, they disagree with the nature of the alterations).
- Potential Liability and Disputes
- Question: What are the risks if the author feels their moral rights are violated?
- Consideration: Understand the legal remedies, such as injunctions or damages, that the author might pursue. Ensure that your agreement addresses potential disputes and includes procedures for resolving conflicts over moral rights.
- Duration of Moral Rights
- Question: Do moral rights expire at the same time as economic rights or do they last longer?
- Consideration: Especially in countries with strong moral rights (e.g., perpetual in France), you must plan for potential legal obligations even after economic rights expire.
- Special Issues for Collaborations
- Question: In a collaborative work, how do each creator’s moral rights interact?
- Consideration: If multiple co-creators hold moral rights, you will need clarity on how changes or author credits are decided—and how disputes are handled if collaborators disagree about usage.
Conclusion
Moral rights add a layer of complexity to copyright law, focusing on the personal and reputational interests of creators. Whether you are an author, artist, licensee, or business acquiring the right to use a creative work, it is essential to understand and address moral rights in any licensing agreement. Doing so can help avoid legal pitfalls down the road—particularly in jurisdictions where moral rights are non-waivable or last longer than economic rights. By asking the right questions and seeking professional advice, you can effectively navigate the intersection of moral rights and copyright licensing.