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 moral rights?

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. 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.