Doctrines relevant to respect and integrity
(Barbie case study)
By Betsy Rosenblatt, Harvard Law School
COPYRIGHT
What is copyright protection?
What sources of law govern copyright in the U.S.?
What may be copyrighted?
Who may hold a copyright?
What constitutes copyright infringement?
What defenses are there to copyright infringement?
MORAL RIGHTS
What are moral rights?
What sources of law govern moral rights in the
U.S.?
Who has moral rights, on what kinds of works, and
how are they acquired?
What constitutes infringement of moral rights?
Copyright
What is copyright protection?
A copyright protects a literary, musical, dramatic, choreographic, pictoral
or graphic, audiovisual, or architectural work, or a sound recording, from
being reproduced without the permision of the copyright owner. 17
U.S.C. §102. The copyright in a work vests originally in the author(s)
of the work. The author(s) may transfer the copyright to any other party
if she(they) choose(s) to do so. 17
U.S.C. §201. Subject to certain limitations, the owner of a copyright
has the sole right to authorize reproduction of the work, creation of a
work derived from the work, distribution of copies of the work, or public
performance or display of the work. 17
U.S.C. §106. This right lasts for the life of the author plus fifty
years; or in the case of a copyright held by an entity, for seventy-five
years. 17 U.S.C. §302.
What sources of law govern copyright in the
U.S.?
Copyright Law in the U.S. is governed by 17 U.S.C. §§ 101-1101,
commonly known as the Copyright Act, as interpreted by court decisions.
What may be copyrighted?
In order to be copyrightable, a work must be
1. fixed in a tangible medium of expression ; and
2. original.
Copyrights do not protect ideas, procedures, processes, systems, methods
of operation, concepts, principles, or discoveries: they only protect physical
representations. 17 U.S.C.
§ 102(b). Anything unrecorded is not copyrightable, in as much
as it is not "fixed;" for example, dances and improvisations themselves
are not copyrightable: only visual recordings or written descriptions of
them are. Say I go to a jazz concert and listen to a soloist's improvisation.
If I have the musical equivalent of a photgraphic memory, I may be able
to reproduce that improvised solo in my own concert on the following night.
If that solo exists nowhere but my memory (i.e. the original concert was
not recorded) I may play it with impunity, because it is not "fixed"
and therefore not copyrightable. But, if the original concert was recorded
(e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred
from playing my version of the solo. Even a bootleg recording (for which
the recorder can be punished under section 1101 of the copyright act) qualifies
for copyright protection: a work need not be formally published in order
to be "fixed;" it need only be saved in a tangible form. 17
U.S.C. § 104.
The originality requirement of 17
U.S.C. §102 demands that a work, in order to be copyrigted, be
independently created by the author. In order to be original, a work need
not necessarily have novelty, artistic merit, truth, or lawful content.
For example, a replica of a painting in the public domain may not be novel,
but it is copyrightable. An item of sculpture designed to be used as a pipe
for smoking marijuana may not be designed for legal ends, but it is copyrightable.
A false biography is copyrightable, although it may well also be cause for
defamation litigation.
Who may hold a copyright?
A copyright ordinarily vests in the creator or creators of a work (known
as the author(s)), and is inherited as ordinary property. Copyrights are
freely transferrable as property, at the discretion of the owner. 17
U.S.C. §201(a), (d). In some cases, however, the actual creator
is not considered the author of the work for copyright purposes: if a work
is created by an employee in the regular course of her employment, it is
considered a "work for hire" and the employer, not the employee,
is considered the "author" of the work for copyright purposes.
For example, in the absence of an agreement to the contrary, a staff writer
for a newspaper does not hold the copyrights in her product, the newspaper
does. This only applies to works created in the ordinary course of employment:
if the same reporter writes a novel in her spare time, she herself owns
that copyright.
Certain commissioned works may also be considered works for hire. 17
U.S.C. §201(b); Community for Creative
Non-Violence v. Reid, 490 U.S. 730 (1989). The term "work for hire"
is defined in 17 U.S.C. §101.
What constitutes copyright infringement?
Subject to certain defenses, it is copyright infringement for someone other
than the author to do the following without the author's permission:
1. copy or reproduce the work
2. create a new work derived from the original work (for example, by translating
the work into a new language, by copying and distorting the image, or by
transferring the work into a new medium of expression)
3. sell or give away the work, or a copy of the work, for the first time
(but once the author has done so, the right to sell or give away the item
is transferred to the new owner. This is known as the "first sale"
doctrine: once a copyright owner has sold or given away the work or a copy
of it, the recipient or purchaser may do as she pleases with what she posesses.)
17 U.S.C. §109(a).
4. perform or display the work in public (this right does not apply to visual
art) without permission from the copyright owner. 17
U.S.C. §106. It is also copyright infringement to violate the "moral
rights" of an author as defined by 17
U.S.C. 106A. Moral rights are discussed below.
What defenses are there to copyright infringement?
The primary defense to copyright infringement is "fair use." 17
U.S.C. §107. The fair use doctrine allows the reproduction and
use of work, notwithstanding the rightsof the author (17
U.S.C. §§ 106 and 106A),
for limited purposes such as criticism, comment, news reporting, teaching,
scholarship, and research. Fair use may be described as the privilege to
use the copyrighted material in a reasonable manner without the owner's
consent. In deciding whether a copier's actions were fair, judges will consider
1. the purpose and character of the copying (certain types of educational
copying is allowed)
2. the nature of the original (originals made for commercial reasons are
less protected from copying than their purely artistic counterparts)
3. the amount and substantiality of the portion copied (one may not copy
the "heart" of a work without the author's permission); and
4. the effect that such copying may have on the market for the original
(copying may be permitted if it is unlikely to cause economic harm the original
author).
Examples of activities that may be excused as fair use include: distributing
copies of a section of an article in class for educational purposes; providing
a quotation in a book review; and imitating a work for the purpose of parody
or social commentary.
Moral Rights
What are moral rights?
The term "moral rights" is a translation of the French term "droit
moral," and refers not to "morals" as advocated by the religious
right, but rather to the ability of authors to control the eventual fate
of their works. An author is said to have the "moral right" to
control her work. The concept of moral rights thus relies on the connection
between an author and her creation. Moral rights protect the personal and
reputational, rather than purely monetary, value of a work to its creator.
The scope of a creator's moral rights is unclear, and differs with cultural
conceptions of authorship and ownership, but may include the creator's right
to receive or decline credit for her work, to prevent her work from being
altered without her permission, to control who owns the work, to dictate
whether and in what way the work is displayed, and/or to receive resale
royalties. Under American Law, moral rights receive protection through judicial
interpretation of several copyright, trademark, privacy, and defamation
statues, and through 17
U.S.C. §106A, known as the Visual Artists Rights Act of 1990 (VARA).
VARA applies exclusively to visual art. In Europe and elsewhere,
moral rights are more broadly protected by ordinary copyright law.
In the United States, the term "moral rights" typically refers
to the right of an author to prevent revision, alteration, or distortion
of her work, regardless of who owns the work. Moral rights as outlined in
VARA also allow an author of a visual work to avoid being associated with
works that are not entirely her own, and to prevent the defacement of her
works.
For a historical and comparative overview of moral rights law in the U.S.,
see Thomas F. Cotter, Pragmatism, Economics,
and the Droit Moral, 76 N.C.L.Rev. 1 (1997).
What sources of law govern moral rights in
the U.S.?
In the U.S., moral rights are primarily protected by VARA. Before VARA was
passed, courts and commentators struggled to find moral rights in the "derivative
work" provision of the Copyright Act, the laws of defamation, the rights
of privacy and publicity, the doctrine of misappropriation,
and especially the Lanham Act, which deals with trademarks and unfair competition.
Gilliam v. American Braodcasting Co., 538 F.2d
14 (2d Cir. 1976); Flore Krigsman,
Section 43(a) of the Lanham Act as a Defender of Artists' "Moral Rights,"
73 Trade-Mark Rep. 251 (May-June 1983).
Authors may seek moral rights protection from state moral rights laws and
art preservation statutes in California and New York, whose provisions resemble
those of VARA. <
link to California Art Preservation Act>. Authors whose works are
not covered by VARA and the state statutes may also seek moral rights-type
protection from various other sources of law, as listed above. Examples
are provided below:
Who has moral rights, on what kinds of works,
and how are they acquired?
Under VARA, moral rights automatically vest in the author of a "work
of visual art." For the purposes of VARA, visual art includes paintings,
drawings, prints, sculptures, and photographs, existing in a single copy
or a limited edition of 200 signed and numbered copies or fewer. In order
to be protected, a photograph must have been taken for exhibition purposes
only. VARA only protects works of "recognized stature;" posters,
maps, globes, motion pictures, electronic publications, and applied art
are among the categories of visual works explicitly excluded from VARA protection.
The language of the Copyright Act excludes works-for-hire from the definition
of "works of visual art," thereby excluding such works from VARA
protection. (For a discussion of issues surrounding the moral rights of
works made for hire, see Colleen
Creamer Fielkow, Clashing Rights under United States Copyright Law: Harmonizing
an Employer's Economic Right with the Artist-Employee's Moral Rights in
a Work Made For Hire, 7 DePaul-LCA J. Art & Ent. L. 218 (Spring 1997).)
Moral rights are not transferrable, and end only with the life of the author.
Even if the author has conveyed away a work or her copyright in it, she
retains the moral rghts to the work under VARA. Authors may, however, waive
their moral rights if do so in writing.
What constitutes infringement of moral rights?
VARA grants two rights to authors of visual works: the right of attribution,
and the right of integrity. The right of attribution allows an author to
prevent misattribution of a work, and to require that the authorship of
the work not be disclosed (i.e. remain anonymous). The right of integrity
bars intentional distortion, mutilation, or other modification of a work
if that distortion is likely to harm the author's reputation, and prevents
the destruction of any work of recognized stature. Therefore, if I paint
moustaches on a painting by a famous painter such as Roy Lichtenstein or
Frank Stella, I will have violated the artist's moral rights under VARA.
If I paint moustaches
on an Andy Warhol painting on the other hand, I will not have violated Warhol's
VARA rights, because VARA protection ends with the death of the author.
Trademark laws may expand the list of ways in which moral rights may be
infringed in the U.S., by protecting the integrity of certain works not
covered by VARA (especially works for hire). If someone attempts to pass
off an author's work as her own, or conversely tries to pass off her own
work as the author's, she may be guilty of "unfair competition,"
which is barred by the Lanham Act (15 U.S.C. §1051). If the author's
work is well enough known to be widely recognized as a work of the author,
or has been registered as a trademark, any distortion or alteration of the
work may constitute trademark "dilution." see
Trademark Primer. Like copyright law, however, trademark law contains
a "fair use" exception, which may exempt potential moral rights
infringers from trademark liability. see New
Kids on the Block v. News America Publishing, 971 F.2d 302 (9th Cir. 1992).
In addition, there are other possible mechanisms with which an author may
enforce her moral rights, beyond VARA and the Lanham Act. These include
the following:
An author may show that, in altering
or distorting her work, someone has created a "derivative work,"
thereby violating the Copyright Act.
If authorship of a work is attributed to an author against her will, or
misattributed, the author may have a state action for defamation against
the person responsible for the attribution.
If a person uses the identity of an author, or the works of the author,
for her own benefit without the author's permission, then she may have violated
the author's right of publicity or may be guilty of misappropriation of
the author's work.