Authors of creative works such as visual art, films, books and songs naturally want the right to claim (or disclaim) credit for their efforts when their work appears before the public. Even more important to many artists is the right to protect the integrity of their work by preventing any significant alterations to its original form. In the world of copyright, this right is known as a ‘moral right’ and artists are protected under the law.
What are moral rights?
Under section 195 of the Copyright Act, artists have a moral right to the integrity of their work and right of attribution of authorship. This includes the right to “prevent a distortion, mutilation or other modification of or other derogative action in relation to the work which would be prejudicial to the author’s honour or reputation.” Under this moral right, artists have the right to have their work attributed to them in the form in which the artist created it.
Moral rights are different to copyright in that they cannot be assigned, transferred or sold without consent. Artists are entitled to terminate their agreement or sue for infringement if a licensee or purchaser of their work has affected its integrity.
Examples of moral right infringement
Any artist can claim that their moral rights have been infringed if their work has been changed in some way.
At present, the most hotly debated and controversial infringement of moral rights is in film colourisation and movie alternation techniques. Black and white movie favourites, such as Casablanca, are being altered and changed into colour. Recently, actress Angelica Huston, on behalf of her father Jon Huston, sued the Ted Turner Entertainment Company for non-consensual film colourisation of his film The Asphalt Jungle. The French Court returned a favourable verdict concluding that the colourisation of Huston’s film violated his moral rights. The court ruled that the colourisation of the film could not be shown without the consent of the creator and damages were ordered.
The publishing industry is also rife with moral rights claims by authors. For example, a publisher due to a limited budget may decide to abridge or condense an author’s book and delete certain photographs from its contents. This abridgement may affect the quality, style and literary finish of the book, amounting to a breach of the author’s moral rights.
Another example which we have seen recently was where a visual artist had licensed an artwork to an organisation that used his design on stickers, without identifying the author’s name. The organisation’s failure to attribute the author amounted to a breach of our client’s moral right.
Monty Python’s claim
Perhaps the most famous case that debated the moral rights of artists was Gilliam v American Broadcasting Company.
Television studios often try to fit the length of a movie into a standard schedule of network television. This process is called ‘Lexiconning’. Due to the extensive commercial breaks, scenes and language are often deleted or sped up to fit network timeframes and decency standards.
This is what occurred when the ABC and BBC licensed the rights to telecast Monty Python’s Flying Circus. The television networks managed to cut 24 minutes of Monty Python’s classic comedy by omitting the climax of skits and deleting schematic developments in the storyline. This constituted a mutilation of Monty Python’s work or as Judge Lasker stated, “The networks have impaired the integrity of Monty Python’s work causing the programme to lose its iconoclastic verve.”
Although the ABC and BBC had licensing rights to edit the program to fit in with television timeframes, the claimed revisions in the script exceeded the scope of their licence. The court ruled that the claimed revisions in the scripts and ultimately the program could only be made after consultation with Monty Python.
When can’t moral rights be claimed?
Moral rights cannot be claimed in every instance. In order to claim moral rights, the artist’s work must have been changed in some way or not attributed properly. For example, if you don’t like the format your work has been presented in but there is no change to your artistic work, you cannot claim this defence.
What can the courts do?
If your moral rights have been infringed, you may be entitled to injunctive relief (a court order requiring the party to refrain from an activity) or awarded an account of any profits. However, litigation should always be a last resort due to its timely and costly nature. Solving the problem through negotiation is preferable. If you do decide to sue for an infringement of your moral rights, you will still need to arrange how the remainder of your responsibilities under the contract will be carried out.
It is also very important to check whether the court has authority to hear your moral right claim in the country you are situated. For example, the moral right claim is not available under current US law.
Defences to moral right claims
If the person who changed the artist’s work can prove this was a reasonable act in all the circumstances, then this could be a possible defence to a moral right claim. The court will use its discretion to determine the ‘reasonableness’ of the change and will base their examination on the nature of the work and relevant industry practices.
There is a need to allow the owner of the underlying copyright to control the method in which the work is presented to the public. This right remains paramount in copyright law. Moral rights under copyright law are used to recognise the important role of the artist in our society and the need to provide adequate legal protection for one who submits his or her work to the public.