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Moral Rights & Fair Use-Striking a Balance

Alicia M. Phidd [a]

Copyright 1998 by Alicia M. Phidd


As a society we enjoy art, literature, movies and music and often times no thought is given to the creator and his interaction with his work. Artists have a mystical connection with their product and even when they part with the physical work, they still have an interest in how it is portrayed. An author is ? party who translates an idea into a fixed, tangible expression entitled to copyright protection.??An author is guaranteed the following rights:
[E]xclusive Reproduction rights, right of Translation, rights of Adaptation, Arrangement and other alterations, Droit de suite or Resale right in works of art and manuscripts, certain rights in Literary works or Performance right, Moral rights, Broadcasting related rights and Compulsory license.

The Moral Rights doctrine, sometimes called personal rights is the protection of a creator?ersonal rights. However, the protection of moral rights is not valued in many countries such as the United States and the United Kingdom. Moral rights are simply an honor that is bestowed upon the creator in an attempt to give to him/her limited protection in his/her reputation. Consider the case Community for Creative Non-Violence (CCNV) v. Reid in 1989. Community for Creative Non-Violence (CCNV) based in Washington, D.C., was an organization dedicated to eliminating homelessness. In 1985 one of the trustees contacted and entered into an oral agreement with Mr. Reid, a sculptor. The trustee that entered into the agreement requested Mr. Reid to produce a statue dramatizing the plight of the homeless for display at a 1985 Christmas pageant in Washington. Mr. Reid worked on the statue in his Baltimore, Md., studio, and often times he was visited by members of CCNV to assist them in coordinating the construction of the sculpture?ase and to check on Mr. Reid?rogress. Mr. Reid initially wanted the sculpture in Bronze because it was to be displayed outside and he was concerned about it withstanding the elements. Due to the nature of the organization and their purpose, Mr. Reid decided to donate his time and CCNV just had to pay for the product. Due to the lack of funds and time constraints, Design Cast 62, a synthetic substance was used instead. This inferior material would be able to withstand the elements when stationarily displayed. ?er the completed work was delivered to CCNV in Washington, CCNV displayed the sculpture. Thereafter, CCNV wanted to take the sculpture on a tour, Mr. Reid objected because he felt the material ? not strong enough to withstand the ambitious itinerary.??Mr. Reid filed a certificate of copyright registration and soon thereafter, the trustees for CCNV filed a competing certificate of copyright registration.
Mr. Reid prevailed on the copyright protection issue, which was decided by the United States Supreme Court on the theory of ?k for hire?? Mr. Reid could have easily prevailed on the theory of Moral Rights if the United States afforded extensive protection of such rights.
This paper will explore in Part II the Berne Convention Act of 1886 and European values of moral rights, in Part III, the Fair Use doctrine and in Part IV the nexus between Moral Rights and Fair Use.


The Berne treaty is principled upon a national and union treatment. The ?pose of the Berne Convention is to create a uniform international body of law with respect to the rights of authors in the works they create.??Ludolph and Merenstein, summarize the original intent of the Convention to achieve the following objective: ? development of copyright laws for authors in all civilized countries; the elimination over time of basing rights upon reciprocity; the end of discrimination in rights between domestic and foreign authors in all countries; the abolition of formalities [required] for the recognition and protection of copyright in foreign works; and ultimately, the promotion of uniform international legislation for the protection of artistic and literary works.??
In 1928, the Berne Convention Treaty was amended to include the moral rights provision. The following countries currently provide moral rights protection in their copyright law: ?entina, Austria, Bangladesh, Belgium, Brazil, Bulgaria, Canada, Chile, Columbia, Costa Rica, Cuba, Cyprus, Czechoslovakia, Ecuador, Egypt, El Salvador, France, Germany, Guinea, Haiti, Italy, Ivory Coast, Japan, Lebanon, Libya, Mali, Morocco, Netherlands, Panama, Peru, Phillipines, Portugal, Senegal, Thailand, and Tunisia.??Out of those thirty five countries, twenty four of them are members of the Berne Convention. Initially, the United States was reluctant to sign the treaty for over a century due to the explicit recognition of moral rights among other things. The United States joined the Berne Convention in 1988 and to date have only recognize moral rights in the 1990 Visual Artists Rights Acts (VARA). When congress joined the Berne treaty, they did not expand moral rights protection because they believed it is adequately covered by Lanham Act ??a), ??(2) of 1976 Copyright protection, and common law doctrines such as unfair competition, breach of contract, defamation and invasion of privacy law. The American legal system does not want to recognize the author?ights outside of copyright. In any event, VARA?oral rights provision is a positive step towards changing our society?erception of personal rights. VARA?oral rights is more limited than those in Berne. VARA?ntegrity right allows the author to prevent ? any intentional distortion, mutilation, or other modification of his work of visual art that would be prejudicial to his honor or reputation, and (2) any intentional or grossly negligent destruction of a work of recognized stature.??VARA?right of attribution states that the author has ? the right to claim authorship of his works of visual art, (2) the right to prevent the use of his name on works of visual art that he did not create, and (3) the right to prevent the use of his name on works that have been distorted, mutilated, or modified, if the use would be prejudicial to his honor or reputation.??lt;br>The United States (US) and the United Kingdom (UK), view copyright as property rights in comparison to the rest of Europe which considers it human rights. This concept of property rights plausibly explains the US refusal to recognize a noneconomic right such as moral rights. Since the Berne treaty is not self-executing, it is up to the member country to make it as such in their own constitution. The right of paternity and the right of integrity are the moral rights provided for in the Berne treaty. The Moral rights section states as follows:

[To claim authorship, to object to certain modifications and other derogatory actions]: Independently of the author?conomic 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 honour [sic] or reputation.

European countries are ?dominantly civil rather than common law jurisdiction.??? doctrine of le droit moral reflects the notion that an artist has a natural right to the fruits of her creativity which cannot be conveyed away through licensing or transfer of the economic interest.??In European countries, moral rights have three (3) major components : the right of integrity, the right of disclosure and the right of attribution/paternity. There is also the right to prevent excessive criticism where its only purpose is to abuse the author.
The right of integrity is central to the heart of the moral rights doctrine. It prohibits any alterations of a creator?ork that will destroy the spirit and character of the creator?ork. This gives the author the right to object or to obtain some redress if the author?ork is altered in some negative way. The right of integrity is broken down into the right to complete the right against unfaithful reproduction, the right against modification and the right against destruction. The right of disclosure lets the creator be the sole judge of when a work is ready for public dissemination. He is the only one who can possess any right in an uncompleted work.
The safeguarding of a creator?ight to compel recognition for her work and to prevent others from naming anyone else as the creator is the right of attribution/paternity. It is simply the right to have the work attributed to the author?ame. It protects a creator?egative rights of anonymity and pseudonymity. The right of attribution is simply the right the artist have with being identified with his creation or to prevent others from using his name on products he did not create.
The remedy for moral rights should be according to the legislation of the country where protection is claimed. The preferred remedy is an injunction. It is usually an injunction against exploitation of the altered work or an injunction to return the altered work to the original state if possible.
The most famous cases depicting moral rights in France were the John Huston case and the Bernard Buffet case. John Huston (Huston) was strong in his objections to colorizing black and white motion pictures. Huston was the director of an American film ?halt Jungle??Eventually Turner Broadcasting System acquired the rights to the film and authorized its colorization. Huston?eirs sued in French courts under moral rights. The case went to the highest court in France, which ruled that since the film was shown in France, the estate of Huston was entitled to moral rights. The court reasoned that even foreign authors have the benefit of moral rights.
In the Bernard Buffet case, Buffet painted all the sides of a refrigerator as one complete piece and signed only one side. He found out that each side was being auctioned and sued to prevent the sale because he felt the artwork was indivisible. The French court agreed with Buffet and ruled that it violated his right of integrity.
An author has either economic rights or moral rights. Under the moral rights chapter of 1957, the author has the right of paternity/authorship, attribution, integrity, divulgation, and withdrawal right. However, the French judicial system has a tendency to recognize the right of attribution and the right of integrity. Moral rights are inalienable, in addition to being perpetual, inheritable and imprescriptible. The author also has the sole right to divulge his creation to the public under the right of disclosure. In France, there is an additional right called the right of withdrawal. However, this right has a condition attached to invoking the right. It requires the author to remedy the effect the withdrawal caused the injured party when he exercises this right. Dane S. Ciolino in his article on moral rights, best describe moral rights and how the French perceive it as follows:
Moral rights protects an artist?ork as an outgrowth of his soul and, hence, are a component of his personality. Thus, when that work is criticized, altered, or destroyed, so too is the artist. For these reasons, French law assures that moral rights relating to an art work ?ll be attached to the author?erson.??ven when an employee-artist created a work for his employer, the employee has moral rights relating to the work that vest in his person.

The French courts are reluctant to waive moral rights of an author with the exception of the newspaper. French contract law disallows waiver of rights not yet in existence. However, the right of integrity is the area the court is likely to allow some restriction in contract. The right of retraction is an additional moral right recognized in France. This allows the author to make changes to his work and or stop the distribution after publication. The retraction can be done after an author is dead only if he expressed it when he was alive. Some critics feel this is simply ruling from the grave. The Berne convention puts limitation on ruling from grave and it is stated as follows:
[After the author?eath]: The rights granted to the author in accordance with the preceding paragraph shall, after his death be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provided for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may after his death, cease to be maintained.
The National Union of Journalists stated that the United Kingdom (UK) initially objected to moral rights in the Berne Treaty. After ratifying the treaty, the UK in 1988 amended their moral rights law and essentially taking away the moral rights it initially recognized. There are three types of moral rights in the UK and they are the rights to be identified as author, the right to object to derogatory treatment of one?ork and the right of privacy for privately commissioned photographs. The right to be identified as the author/creator is analogous to the right of paternity. The right to object to derogatory treatment of one?ork is analogous to the right of integrity. However, the right of integrity does not apply to computer program, works made for hire for reporting current events and publications in newspapers, encyclopedia, yearbooks or other collective work of reference.

? fair-use doctrine permits users of copyrighted works to engage in otherwise infringing conduct if their use of the copyrighted work is ?r?? light of all of the circumstances.?? This is a defense to copyright infringement and it was developed in England more than a century before the French Revolution. In the United States, fair use was a court created law in the 1800?ntil 1976 when congress codified it in ?? of the Copyright Act of 1976. Fair use allows one to use another copyrighted work without fear of repercussion. Fair use basically trumps the exclusive rights given to a copyright holder. This includes exclusive rights such as reproduction, adaptation, distribution, public-performance and public-display rights. This doctrine is based on the general notion that we should not impede the creation of new works of authorship. Congress has set out some factors to assist in deciding fair use issues. Title 17 United States Code ??7(1)-(4) (1994) in its entirety provides:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright. In determining whether the use made of a work in any particular case is fair use the factors to be considered shall include-
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

In making a fair use determination, all the factors should be considered together. The fair use doctrine is puzzling and unpredictable and as a result the courts apply it on a case by case basis and may continue to do so until a more uniform and predictable method is developed. The purpose and character of the use factor requires us also to consider the nonprofit and commercial purpose of what the infringing work is being used for. ? crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.??Under ? nature of the copyrighted work??ctor, the court tends to accept the fair use more if it is informational as opposed to having creative value. In determining the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the court ?sider the relationship of the copied component to the composite work to determine whether to analyze the work as an ?ire work? The effect of the use upon the potential market for or value of the copyrighted work is sometimes determined by considering a few factors. First, the court should consider whether the ?ringing use ?ds to diminish or prejudice the potential sale of the work.??Second, they may consider if the infringing use tends to interfere with the marketability of the work. Finally, the court may consider if the infringing use ?fills the demand for the original work.??lt;br>PART IV

The ?r Use??ctrine or any doctrine analogous to it is not used to limit moral rights in Europe and should not limit the federal moral rights in the United States. The copyright holder has exclusive rights. However, moral rights are the personal rights the author has attached to his product. Without a doubt, it is about the honor, reputation and respect that connect an author to his work. This differs significantly from the right of publicity doctrine, trademark law and copyright law which were created to protect the commercial and economic interests of artists. Moral rights unlike fair use have no direct relationship to intellectual property since it deals with an author and his relationship to tangible property. Traditionally, copyright protection in the United States protect the intangible work, which essentially allows the creator to reproduce as many times as he wish or to do as he pleases.
Let?ook at the Community for Creative Non-Violence v. Reid case mentioned earlier. Reid, the author had very strong intangible convictions about his creation maintaining its original state. He intended to protect his creation at any cost. This type of attachment between an author and his creation demonstrates the need to have moral rights protection. If the ?r use??ctrine were applicable to this case, we would analyze it as follows. Here, the purpose and character of the use was not for monetary gain. CCNV wanted to take the sculpture on tour with them to emphasize their theme. In addition to emphasizing their theme, the sculpture was to inform the public of the deplorable situation in Washington, D.C. concerning homelessness. This fact could satisfy the ? nature of the copyrighted work??ong. CCNV was only responsible for the base to which the sculpture was added and the argument could be made that the entire work copyrighted was substantial.
The final test seems to be the one in issue with respect to moral rights. This is the ?ect of the use upon the potential market for or value of the copyrighted work.??There are two factors to consider when analyzing this test, as previously mentioned. First, there is the test of whether ? infringing use tends to diminish or prejudice the potential sale of the work??It is clear that the tour would affect the sculpture and subsequent sale of it. The problem with the tour was that the sculpture would not be able to withstand the elements because of the material it was made of. The second factor deals with the marketability of the sculpture. The abuse of the sculpture by exposing it to the elements for a long period would subsequently interfere with the marketability of the sculpture. For instance, when the sculpture starts to fall apart, potential buyers of the sculptor?ork may think he does not make quality sculptures. They would not know that he suggested bronze in the beginning when he was solicited and again when he was notified of the tour. Mr. Reid needed to protect the integrity of the sculpture and his name.
Fair use could not and should not trump moral rights interest. In any event, the policy behind fair use of promoting new creation is understandably a good one, but we should also adopt the policy that authors should be allowed to keep some connection with their work.

It is clear that the copyright protection in the United States protects the traditional pecuniary interests. However, when we review the Europeans, especially the French, it is without a doubt that our society should give more power and respect to moral rights and fair use must not apply. Some critics disagree with the idea of ?evolutionary change in the United States?gal system to protect artists.??The following was suggested as two possible alternate considerations in protecting an artists?ral rights: ?st, artists?eativity and reputations should be protected so that they can effectively bargain for moral rights and be responsible for preservation of their original works. Second, the law should protect art to benefit present and future generations.??I disagree.
Moral rights allow an author to take pride in good quality work from the commencement of creation until eternity. This kind of connection indirectly promotes economic interests because the product is exceptional. More importantly, it somewhat ensures that if an artist knows he can protect the integrity of his work and his name, he will be committed to quality as opposed to economic interest. Fair use on the other hand should not be a limitation on moral rights because although as a society we want to promote new authorship, we should not do so at the detriment of the author?ersonal interest in his creation.


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