Though commonplace in much or the rest of the world, laws regarding moral rights have never been properly implemented in the U.S., thereby limiting artists' control over their work, something Congress has a chance to fix in this latest copyright review.Guest Post by Jonathan Bailey on the Future Of Music Coalition
In the United States, most copyright law deals exclusively with “economic rights”, or rights associated with the money and the economic value of creative work. These rights are incredibly important as they allow creators to prevent others copying/distributing their works, making new works based upon their creation and publicly performing it without a license.
These rights are why rightsholders can sue to block unlicensed CDs from being printed and why songs can’t be covered without a license fee to the songwriter.
But money isn’t everything. Elsewhere in the world, creators enjoy a separate set of rights known as “moral rights.” The term comes from the French language and might actually be better translated as “personality rights”; it incartists are able to protect their reputation by ensuring that they receive attribution when their work is used and that they can object to uses that they see as harmful to their name.
This means that musicians always have a right to be credited for their contributions to a song, even if they signed over control of the copyright of the song itself.
But while these rights have never been fully introduced into United States law, there is increasingly talk about these rights and how they complement the existing economic ones.
On April 18, the U.S. Copyright Office along with the George Mason School of Law and its Center for the Protection of Intellectual Property, held a symposium on the topic of moral rights and its application in the United States.
The symposium comes as part of a much broader overview of moral rights and copyright law itself in the country. In July of 2014, the House of Representatives Judiciary Committee held a hearing on the topic and representatives from both the Songwriters Guild of America and the Future of Music Coalition gave testimony.
Moral rights are a major focal point of copyright law reform in the United States right now. However, while moral rights are common in most of the world, their limited application in the United States means that many there are not familiar with them.
With that in mind, we’re going to take a look at moral rights, how they operate both abroad and the U.S.and what they could mean for musicians.Moral Rights In General
Moral rights are primarily codified in the Berne Convention for the Protection of Literary and Artistic Works. Though they existed in France and Germany before then, The Berne Convention is the primary tool that has spread them worldwide.
Moral rights provide a set of rights that are separate from the economic rights granted by copyright law. They include:
- The Right of Attribution: The right of the creator to be credited when a work is copied or otherwise used.
- The Right of Anonymity (or Pseudonymity): The right of the creator to not be attributed or to be attributed under a different name if they chose.
- The Right of Integrity: The right to prevent uses of the work that might be offensive to the creator or harmful to his or her reputation
In most countries, these rights are taken for granted and are simply a part of the artist’s rights. However, there are differences in how the rights are applied.
In some countries, the rights are infinite and will last into perpetuity. In others, the rights expire at the same time as the economic rights. In some applications, the moral rights can not be waived by a contract while in others they can. Finally, some countries say that the right must be proactively asserted while most do not have such a requirement
But regardless of the exact implementation, in all countries where moral rights exist, they are a powerful tool that enable creators to protect their work, build their reputation and further their careers.
Sadly, they have not been fully implemented in the United States.
Moral Rights in the United States
Though the United States became a signatory to the Berne Convention in 1988, moral rights were never fully codified into U.S. law.
The main implementation of moral rights in the United States is the Visual Artists Rights Act (VARA) ,which was passed in 1990. The law granted limited moral rights protection to a very small subset of visual artists.
The law provided both right of attribution and right of integrity to visual artists, but only to paintings, drawings, prints, sculptures and still photographic images produced for exhibition and only those existing as single copies or in limited editions of 200 or fewer.
This meant that visual artists who mass-produce works as well as all non-visual artists, including musicians, were excluded.
Other rights and other artists, according to the U.S. government, are protected under different areas of U.S.law including both privacy, publicity and trademark laws. However, moral rights have never been fully and directly codified, leaving what many artists see as a gap in their protections.
What Moral Rights Mean for Musicians
For musicians and songwriters, moral rights have two key benefits:
- Moral rights grant the artist or composer the right to always be attributed for their work (or to distance themselves from a work if they desire).
- Moral rights grant them the right to object to uses that they deem offensive.
The importance of the first right is obvious. Many musicians, especially session musicians, are not credited for their time and creativity. Moral rights ensures that such musicians and composers have the right to be credited and will receive the attribution that they deserve. This helps them build careers by letting artists develop a fully-documented resume of their work.
The second is equally important as it allows artists to object to the use of their work that they might deem offensive. Whether it’s the use of their music in political campaigns, which has been a recurring theme this election cycle or the use of their music in films that the artist finds objectionable.
The latter was a problem for musician Connie Francis, who sued in 2002 objecting to the licensing of her music for “sexually themed” films she found inappropriate. Unfortunately for Francis, her case was dismissed in 2003. However it would have stood a much better chance if European-style moral rights had been codified into U.S. law.
Many feel moral rights could easily be handled through contracts and that musicians often discuss the terms of attribution and credit as part of their negotiations. However, these negotiations, especially with new artists, are routinely uneven in nature and artists are often forced to waive rights that can come back to haunt them later.
In short, while codifying these rights into law may not do much to help current successful artists, they can do a great deal to help new and upcoming artists build both a portfolio and a career in the industry.
Moral rights, though common in the rest of the world, have never really reached the United States in full. This has left artists of all types, including musicians, without protections that their work enjoys elsewhere.
This makes it crucial that, as the discussion of copyright reforms in the United States continues, that moral rights be a key part of the conversation. Since these rights are most crucial to new and upcoming artists, they are potentially key to the growth of not just the music industry, but all creative industries.
The lack of moral rights in the United States is an egregious oversight that, with this copyright review, Congress has the chance to fix.