Moral Rights Basics
By Betsy Rosenblatt, Harvard Law School
Last Modified: March, 1998
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
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
For a historical and comparative overview of moral rights law in the U.S.,
F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C.L.Rev.
What sources of law govern moral rights in
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.
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. 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
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
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.