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Conceptual Definitions of Moral Rights (Droit Moral)

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Overall Definition and Purpose

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The concept of droit moral, also known as moral rights,[1] gives recognition to the idea that artists can have certain personality rights in their work. Moral rights “accrue to the artist, rather than to the work itself, and are aimed at protecting the measure of his [or her] personality embedded in his [or her] creation, rather than the economic potential of that creation.”[2] In countries that provide moral rights protections, it is traditionally acknowledged that “the work of art is a statement of the artist’s personality.”[3] Thus, instead of focusing on monopolizing monetary gain from a work, moral rights are meant to protect an artist’s reputation.[4] These rights are thus “separate and apart from the economic aspect of copyright.” This characteristic of separation means that while a full transfer of copyright “may suffice for all economic purposes,” such a transfer “may exert no impact on the assertion of [moral rights] claims.”[5]

In order to protect this personality interest, the artist is “given certain legal rights with respect to his creations,” which include the right to “have his name associated with his creations,” the right to “prevent alteration of the creation which might damage its integrity,” and the right to “control the creative process.”[6]

Moral rights are the rights of authors and vest only with the living individual that created the work.[7] Corporate entities and employers who hire third parties to create works for them do not qualify as authors, and thus cannot hold or exert moral rights associated with a work.[8]

Depending on the particular circumstances, moral rights may extinguish at the same time as property right aspects of the copyright.[9] However, in some countries, including France, moral rights continue to exist “into eternity.”[10]

Because moral rights are designed to protect the personality of the specific creator of a work, in most countries moral rights are “inalienable.”[11] Moral rights are can neither be transferred to a third party[12] nor relinquished altogether; they are said to be “personal to the author.”[13] The element of inalienability has been characterized as “by far the most controversial characteristic of the...concept of moral rights.[14]

The Right of Attribution (“Paternity”)

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The right of attribution, also referred to as the right of paternity, is “the right of authors to claim authorship of their works.”[15] It aims to determine “whether and how the author’s name shall be affixed to the work.”[16] It establishes three separate but related protections. First, that it is an author’s right to be “made known to the public as the creator of [the] work.”[17] If the author so desires, his or her name must appear on all copies as well as advertising and other publicity for the work. Second, that an author can “prevent others from usurping his [or her] work by naming another person as the author.”[18] This allows the author to prevent plagiarism of the work. Finally, an author can “prevent others from wrongfully attributing to him [or her] a work he [or she] has not written.”[19] This protects the author from false attribution of authorship and from being named as the author of a work that has been mutilated.

In addition, the right also gives the author the right to not claim authorship of the work. Authors may elect to remain anonymous or use pseudonyms instead of their real names.[20] However, the right does not necessarily entitle such authors to prevent a third party from disclosing the author’s real name.[21]

The Definition of Right to Integrity

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The right of integrity has been called “the most important moral right.”[22] The notion of the right to integrity is that since “the work of art is an expression of the artist’s personality...[d]istortion, dismemberment or misrepresentation of the work mistreats an expression of the artist’s personality, affects his artistic identity, personality and honor, and thus impairs a legally protected personality interest.”[23]

The right provides authors with a right to “prohibit modifications of their works without their consent” regardless of whether “the modification would negatively impact or objectively improve the work.”[24] In both France and Germany, the modification does not have to be detrimental to the author’s honor or reputation to qualify as a violation of the right.[25] Both countries, however, have carve outs that provide exceptions to this broad rule that apply in the context of modern works.[26]

The right is said to provide the artist with general protection against “any and all substantive modifications.”[27] Once a work has been sold or made public, this right allows the creator to insists that the work’s structural integrity “must not be violated by measures which could alter or distort it.”[28]

As part of this right, the author is “deemed to be entitled to make changes in the work or to authorize others to do so.”[29] In some countries, the right includes the ability prevent the total destruction of the work.[30] Notably, however, the U.S. does not recognize such protections, outside of the limited realm of works protected as visual art.[31]

Other Subsidiary Rights

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Outside of these two traditional moral rights categories, additional moral rights exist in some circumstances. These include the right to create a work, the right to publish a work, the right to withdraw a published work from sale, the right to prevent “excessive” criticism of a work, and the right to prevent any other violation of the author’s personality.[32] These additional moral rights are said to be protected under the dualist or “classical” French theory.[33]

U.S. Protection of The Right to Integrity

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General Status of Moral Rights Protection in the U.S.

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Traditionally, the U.S. has been opposed to the idea of providing authors with moral right protections. Indeed, for decades numerous court opinions have announced that the U.S. does not provide any protection for the concept of moral rights.[34] Nevertheless, the U.S. does hold itself out to be “in full compliance”[35] with all Berne Treaty obligations, which necessarily include providing some protection for the right of integrity.[36] While legal scholars have challenged the assertion that the U.S. is in fact in compliance with the treaty,[37] a “patchwork” of legal protection that draws upon common law, trademark law, and modern statutory law can be said to give limited recognition of moral rights within the U.S.[38] Copyright scholar David Nimmer notes that while it may not be said that American authors enjoy moral right protections equal to their European counterparts, “the American development of these rights, under whatever label, is sufficiently advanced as to make consideration of their substance necessary to a rounded understanding of the status that works of authorship enjoy in the United States.”[39]

Protection of the Moral Right of Integrity Recognized in Caselaw

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Despite the entrenched hostility to moral rights in the U.S., in numerous occasions courts have interpreted existing law in a way that protects the integrity interests of an author’s work. U.S. courts typically engage in such protection via copyright law protections, particularly by making use of the derivative works right.[40] Courts have also invoked unfair competition, trademark, and contract law doctrines to achieve similar goals.

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In the U.S., recognition that an author has the right to prevent the distortion or truncation of his or her work “matured to full copyright status” in the landmark case of Gilliam v. American Broadcasting Companies 538 F.2d 14 (2nd Cir. 1976).[41] Although the court in that case was perhaps not willing to acknowledge it, scholars have forcibly claimed that the case relied upon the influence of moral rights.[42]

Pre-Giliam Protection
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An author has always had the ability to grant to an assignee or licensee the right to make changes in the work, including changes that amount to a distortion or mutilation.[43] In the event of such a grant, courts have consistently held that the author could not subsequently complain about those changes.[44] Conversely, courts have also consistently held as enforceable an assignment or license that expressly reserves the author’s right to prevent distortion or truncation of the work.[45] However, such provisions have nevertheless been construed to allow the assignee or licensee to make necessary, minimal changes to present the work in a different (but authorized) medium,[46] as well as to “update and modernize” the work.[47]

Courts varied in the approaches they took if an assignment or license was silent in respect to the right to make changes in the work. However, several courts did hold that an assignee or licensee was subject to some limitations in terms of the amount and quality of edits that could be made. One court, for example, held that a grant of TV rights in a motion picture included the right to edit the film and insert commercials, as long as the process was completed “in a manner consistent with prevailing industry practice” and in a way that would not constitute a “mutilation.”[48] Under similar circumstances, another court enjoined “only such cutting or editing of the film for the purposes of commercial insertions as would ‘so alter, adversely affect or emasculate the artistic or pictorial quality of said motion picture so as to destroy or distort materially or substantially the mood, effect, or continuity...’”[49]

Gilliam v. American Broadcasting Companies
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In the landmark case of Gilliam v. American Broadcasting Companies, the Second Circuit held that unauthorized changes in the work that are so extensive as to impair the integrity of the original work constitute copyright infringement.[50] Gilam involved a lawsuit brought by the British comedy troupe known as Monty Python against American Broadcasting Companies (ABC).[51] Monty Python wrote and performed comedy scripts that initially appeared on the British Broadcasting Channel (BBC). The group has a scriptwriters’ agreement with BBC that strictly limited the extent to which BBC could make alterations on the material the group submitted.[52] BBC licensed Time-Life Films to distribute the show in the U.S., and permitted Time-Life to “edit for for insertion of commercials, applicable censorship or governmental...rules and regulations, and National Association of Broadcasters and time segment requirements."[53] Time-Life, in turn, licensed some programs to ABC, and agreed that the programs “would "be edited and otherwise made to fully conform to the policies of ABC's Department of Broadcast Standards and Practices..."[54] Thus, by this chain of transactions, Monty Python’s once carefully restricted editing rights yielded to give ABC a broad license for editing and deletion. ABC subsequently broadcast a ninety-minute Monty Python special that was composed of three thirty-minute programs; twenty-four minutes of material was cut from the original programs. Upon learning of ABC’s plans to air an additional special, Monty Python sued for injunctive relief.[55]

The court first held that the TV shows were derivative works based on the scripts in which Monty Python holds copyright.[56] The court then stated that “one who uses the script, even with the permission of the proprietor of the derivative work, may infringe the underlying copyright.”[57] The court used this logic to ultimately conclude that “unauthorized editing of the underlying work … would constitute an infringement of the copyright in that work similar to any other use of a work that exceeded the license granted by the proprietor of the copyright.”[58] The court based this conclusion upon a review of existing caselaw, which it found to confirm that “the ability of the copyright holder to control his work remains paramount in our copyright law.”[59]

Scholars have correctly identified that “the value the court attempted to further--ensuring ‘that the copyright proprietor retains a veto power over revisions’--is an important aspect of the artist’s integrity rights protected by droit moral.”[60]

Possible Limitations of the Giliam: The Supreme Court’s Dastar Ruling
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In 2003, the U.S. Supreme Court held in Dastar Corp. v. Twentieth Century Fox Film Corp.,[61] that federal trademark law cannot be used as secondary means of protection in order to protect an author’s moral right of attribution. Although the holding of that case has no direct bearing upon integrity rights, the rationale the Court adopted may suggest that the scope of Giliam may be limited in the near future. In Dastar, the Court stated that “[w]hen Congress has wished to create such an addition to the law of copyright, it has done so with much more specificity than the Lanham Act's ambiguous use of ‘origin.’”[62] Copyright scholar David Nimmer has posited that this rationale could apply as equally to the integrity right as to the attribution right, and thus the Court could have been “unfavorably disposed towards the Gilliam holding.”[63]

Protection Via Other Claims

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Beyond the realm of copyright, courts have also reached out to other doctrines in order to seemingly adhere to moral right of integrity principles.

The theory of unfair competition has been stated as being “not so rigid, even in the absence of a contract, to leave a party without protection against publication of a garbled version of his work.”[64]

Contract theory has also been invoked when the assignee or licensee is contractually obligated to mention the name of the author in connection with the presentation of his work.[65] “Such an obligation carries the implied duty not to make such changes in the work as would render the "credit" line a false attribution of authorship.”[66] In addition, when “an assignee acquires the right to license the work, he is under an implied contractual duty to use reasonable efforts to select licensees who will not unduly distort the work.”[67]

If a subsequent display implies the original author’s consent, approval, or collaboration, the author may be able to stop its use if he finds the context to be objectionable.[68] In addition, subsequent pornographic uses that create a resulting product that could injure the author's reputation may be actionable.[69]

Statutory Protection of the Moral Right of Integrity: Visual Artists Rights Act (VARA)

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In 1990, Congress passed the Visual Artists Rights Act (VARA), which grants a limited amount of moral rights to a narrow, statutorily defined class of artistic works. In enacting this piece of legislation, Congress made clear that while it was interested in creating moral rights in the limited sphere of certain visual arts, it was not interested in creating general moral rights protections.[70] VARA’s passage thus gives an additional opportunity for qualifying artists to assert moral rights in the U.S.; however, only a narrow category of artists will qualify for protection under the statute. Artists that do not fall subject to the protections VARA provides must rely on other principles for moral rights protection.[71]

Scope and Mechanics of Protection

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VARA introduced a new category of works, terms “work of visual art.” Works that meet the definition include a “painting, drawing, print, or sculpture.”[72] Photographic images are also eligible for protection, if they are “produced for exhibition purposes.”[73]

Works that exist solely in a unique original qualify to receive protection. Works that exist in multiple copies can also qualify for protection, if they are “issued "in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author."[74]

It is important to note that the rights established under VARA are “personal rights.” In keeping with the traditional fabric and purpose of moral rights, they exist “independent of traditional copyright.”[75] An artist can thus exert VARA rights after parting with copyright ownership. Note, however, that only the original artist can exert rights established under VARA; the rights are expressly inalienable.[76] However, an artist may choose to waive all protection afforded by VARA.[77]

Attribution Rights

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VARA establishes three new rights for authors that can be classified under the moral rights category of attribution.

First, the author of a VARA protected work has the right to claim authorship.[78] “Thus, an author may demand that her name be used in conjunction with a display of the work.”[79]

Second, an author has the right to prevent use of her name as the author of a work she did not in fact create.[80]

Third, an author has the right to prevent use of her name as the author of a work that has been subject to “distortion, mutilation, or other modification of the work which would be prejudicial to...her honor or reputation.”[81] Although Congress refused to adopt a clear definition as to what is required to be “prejudicial,” the legislative history states that “modification of a work of recognized stature will generally establish harm to honor or reputation.”[82]

VARA contains an important exception to this right that immunizes liability from “any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item.”[83] The legislative history explains that this exception is meant to allow “a newspaper, book, or magazine” to “include a photograph of a painting or a piece of a sculpture.”[84]

Integrity Rights

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VARA confers upon authors of visual works the right “to prevent any intentional distortion, mutilation, or other modification of that work.”[85] To give rise to a violation of this right, the action taken must be “prejudicial to the artist’s honor or reputation.”[86]

VARA also confers upon artists the right “to prevent any destruction of a work of recognized stature.” Thus, the statute does not protect “pedestrian works” from destruction; however, courts have commented that the level of “recognized stature” required “need not rise to the level of Picasso.”[87]

There are several exceptions to these rights.[88] To the extent that such modification of a work of visual art results “from the passage of time or the inherent nature of the materials,” there is no violation of the “distortion, mutilation, or modification” right.[89] Modifications of works of visual art that result from “conservation, or...public presentation” are also exempted, unless the modification is caused by gross negligence.[90] The statute also contains an “elaborate exception...for works of visual art that are incorporated into or made part of a building.”[91]

Individual State Protection of the Moral Right of Integrity

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Several states, including California[92] and New York,[93] have adopted forms of moral rights laws.[94] Both of these states provide protection for both attribution[95] and integrity[96] interests of the artist. Note, however, that in most cases these protections exist only for works of fine art.[97]

In terms of the right of integrity in particular, state laws generally protect against the “defacement, mutilation, alteration or destruction” of works.[98]

Note, however, that such state protections may be subject to preemption by federal law. “To the extent that [VARA]...governs, pre-emption presumably applies.”[99]

European Protection of The Right to Integrity

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The copyright statutes in force in both France and Germany “contain provisions dedicated the protection of the rights of disclosure, attribution, integrity, and withdrawal.”[100] As previously noted, both countries go beyond the requirements of the Berne Convention and hold that “the modification in question does not have to be detrimental to the author's honor or reputation in order to qualify as a violation of the right of integrity.”[101]

Protection of the Moral Right of Integrity in France

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France is the “home country” to the concept of moral rights and as such has always provided some recognition of a right to integrity.[102] The law provides artists with a general protection against distortions or alterations of their work.[103] The right, however, does not vest until “after the work has been put on the market by the author, has been sold, or has been made subject to contracts of publication or performance.”[104]

French courts have generally held that “the user of a work by way of reproduction or performance must adhere strictly to the form and contents given [to] the work by the author... It is said that the publisher and theatrical producer violate their obligation if they make changes without the author’s consent; that they have undertaken to make the work public in the form in which it has been submitted to them and could have refused to do so if they had been of the opinion that the work needed changes”[105]

The Court of Appeals in Paris has stated that “the copyright permits the artist to demand respect for his work even after assignment, and to keep the integrity and every detail of form intact.”[106] The Court has also stated that “[e]very author has a moral right in his work, and this must be recognized by the courts in all countries. The author has the right to prevent that his work be altered or mutilated in form or in spirit.”[107]

French courts have found, on numerous occasions, that cutting or altering a film gives rise to a moral rights action.[108] Similarly, courts have also held that altering the context of a literary creation can give rise to a moral rights action.[109]

Perhaps the most famous French right of integrity case involves the artist Bernard Buffet and a painting he created on panels of a refrigerator.[110] Buffet sued the owner of the artwork after he separated the sides of the piece and sold them as individual works of art. Buffet claimed that “the refrigerator was one indivisible artistic unit” and that separating the work amounted to mutilation.[111] The Paris Court of Appeal held in Buffet’s favor, and the Court of Cassation affirmed.[112]

In France, there is an important exception to this moral right in the context of computer programs. In the cases of such works, the scope of the moral right has been limited to protection of “the author’s honor and reputation.”[113]

Protection of the Moral Right of Integrity in Germany

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German copyright statutes and courts generally hold that “an assignee of a copyright usually cannot, without the author’s permission, make changes in the work, its title, or the author statement.”[114]

The classic German case in this regard is the “Rocky Island with Sirens” case.[115] In that case, the defendant had commissioned the plaintiff to paint a mural in the stairway of his home. However, after the completion of the work, the defendant was unhappy with the appearance of naked sirens within the painting. He thus had the sirens painted over so that they would appear to be dressed. the court held that the artist had a right “to present his work to the public in its original form...[w]hile the vendee has the right to sell or destroy the work, he has no right to change it. In doing so, he invades the artist’s copyright with protects the work against unauthorized changes.”[116]

Germany has established a separate statutory regime for moral rights protection that applies in the context of motion pictures and works used in the production of motion pictures.[117] Authors of such works can invoke the right of integrity “only if their works are grossly distorted” and, even if this is the case, must “take into consideration the interests of the producer of the motion picture when exercising their right to object to gross distortions of their works.”[118]

References

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  1. ↑ The term “moral rights” is only an approximate translation of droit moral. Several scholars have pointed out that term is meant to encompass more what the phrase encompasses. They note that “[t]he adjective ‘moral’ has no precise English equivalent, although ‘spiritual,’ ‘non-economic’ and ‘personal’ convey something of the intended meaning.” See 5 Patry on Copyright § 16:2. For the purposes of this memo, the term “moral rights” will be used as a broad reference meant to encompass the general scheme of protection envisioned by these various phrases.
  2. ↑ See The Monty Python Litigation. Of Moral Right and the Lanham Act. 125 Penn. L. R. 611, 615 (1977) [hereinafter “Monty Python Litigation”]; See also John G. Petrovich, Artists' Statutory Droit Moral in California: A Critical Appraisal, 15 Loy. L.A. L. Rev. 29, 29 (1981) [hereinafter “Droit Moral in California”]. Available at: http://digitalcommons.lmu.edu/llr/vol15/iss1/2.
  3. ↑ Id.
  4. ↑ Id at 32 (citing Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 Am. J. Comp. L. 465,465 (1968) (“Moral rights have been said to include ‘non-property attributes of an intellectual and moral character which give legal expression to the intimate bond which exists between a literary or artistic work and its author's personality.’”).
  5. ↑ Nimmer on Copyright §8D.01[A].
  6. ↑ Id at 29.
  7. ↑ See Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J. 353, 360 (2006).
  8. ↑ See id.
  9. ↑ See William Strauss, The Moral Right of the Author, 4 Am. J. COMP. L. 506, 506 (1955) [herinafter “Moral Right”].
  10. ↑ Id. See also Nimmer §8D.01[A] (“Under French law, the moral right is conceived as perpetual, inalienable, and imprescriptible. In theory, therefore, even today in France, an outrageous stage or film version of Le Medecin Malgre Lui could be challenged and subjected to the full range of sanctions for violation of the moral right.”).
  11. ↑ Id. See also Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J. 353, 355 (2006) (“The orthodox theory of moral rights is that authors of copyrightable works have inalienable rights in their works that protect their moral or personal interest...”).
  12. ↑ In countries such as France where moral rights continue to exist after the death of the author, moral rights can be passed on to an author’s heirs. “In other words, moral rights cannot be transferred inter vivios, but they can be transferred mortis causa.” Rigamonti, Deconstructing Moral Rights at 361.
  13. ↑ See Rigamonti, Deconstructing Moral Rights at 361.
  14. ↑ See id.
  15. ↑ Rigamonti, Deconstructing Moral Rights at 364.
  16. ↑ Id.
  17. ↑ Strauss, Moral Right at 508.
  18. ↑ Id.
  19. ↑ Id.
  20. ↑ See Rigamonti, Deconstructing Moral Rights at 364.
  21. ↑ See id.
  22. ↑ Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554 (1940) (“Beyond dispute it is this aspect of moral right which has aroused the most bitter antagonism.”).
  23. ↑ See Droit Moral in California at 37 (quoting Merryman, The Refrigerator of Bernard Buffet, 27 HASTINGS L.J. 1023, 1043 (1976)).
  24. ↑ Rigamonti, Deconstructing Moral Rights at 364. See also Dan Rosen, Artists’ Moral Rights: A European Evolution, An American Revolution, 2 Cardozo Arts & Ent. L.J. 155, 161 (1983) (“French copyright law recognizes the right of an artist to prevent distortion or alteration of his work.”).
  25. ↑ See id. Note that this places the protection both countries afford beyond the requirements of the Berne Convention.
  26. ↑ Such carve outs are discussed in Part III, infra.
  27. ↑ Rigamonti, Deconstructing Moral Rights at 364. See also André Lucas & Henri-Jacques Lucas, Traité de la propriété littéraire et artistique 307, 334 (2d ed. 2001); Frédéric Pollaud-Dulian, Le droit d'auteur 402, 422 (2005) (Fr.).
  28. ↑ Monty Python Litigation, at 615 (quoting Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 AM.J. COMP.L. 465, 480 (1968).
  29. ↑ Strauss, Moral Right at 509.
  30. ↑ See Nimmer on Copyright § 8D.04[B].
  31. ↑ See id. (“An author has no right to object to the destruction of the original or copies of his work when the tangible object destroyed has been unconditionally sold.”). Note, however, that this statement is immediately qualified with the statement “[n]onetheless, an act that destroys the value of the author's copyrighted work has been held, under certain circumstances, to be a form of unfair competition.” Id.
  32. ↑ See Strauss, Moral Right at 511.
  33. ↑ Id.
  34. ↑ See Nimmer on Copyright § 8D. 02[A] (Footnote 1) (citing Gilliam v. American Broadcasting Cos., 538 F.2d 14 (2d Cir. 1976) ("American copyright law, as presently written, does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors."); Vargas v. Esquire, Inc., 164 F.2d 522 (7th Cir. 1947) ; Crimi v. Rutgers Presbyterian Church, 194 Misc. 570, 89 N.Y.S.2d 813 (Sup. Ct. 1949) . See Stevens v. National Broadcasting Co., 148 U.S.P.Q. 755 (Cal. Super. Ct. 1966) ; Shostakovich v. Twentieth Century-Fox Film Corp., 196 Misc. 67, 80 N.Y.S.2d 575 (Sup. Ct. 1948) , aff'd, 275 A.D. 692, 87 N.Y.S.2d 430 (1949)).
  35. ↑ See Berne Convention Implementation Act, § 2(3). See also Nimmer on Copyright 8D.02[D][1] (“When the United States harmonized its laws with Berne standards for the sake of treaty adherence, Congress declared that the domestic law of the U.S.--including its moral rights protection--as then existing was adequate to satisfy the obligations of the United States in adhering to Berne.”). But see Nimmer on Copyright 8D.02[C] (“Congress, in short, intended upon BCIA enactment in 1988 to be completely noncommittal on how moral rights should develop in the future.”).
  36. ↑ See Berne Convention (Paris text), art. 6 bis (3). See also Nimmer on Copyright 8D.02[D][1]; 8D.01[B].
  37. ↑ See Merryman The Refrigerator of Bernard Buffet, 27 Hastings L. J. 1023, 1035-1036 (1976) (“The moral right of the artist, and in particular that component called the right of integrity of the work of art, simply does not exist in our law.").
  38. ↑ See Nimmer on Copyright § 8D. 02[A] (“On deeper examination, however, stirrings of moral rights can be discerned in American judicial decisions and statute.”).
  39. ↑ Id.
  40. ↑ See Nimmer on Copyright § 8D. 04[A][1]; See also Nimmer on Copyright § 8D. 02[C] (“The exclusive right "to prepare derivative works" could be conceptualized as an author's integrity right, particularly when augmented with provisions and interpretations arising under statutes other than the Copyright Act.”).
  41. ↑ See Nimmer on Copyright § 8D. 04[A][1]
  42. ↑ See Monty Python Litigation at 614 (Concluding that although the court was less willing to acknowledge it, the influence of moral right is evident in the case.).
  43. ↑ See Nimmer on Copyright § 8D. 04[A][1].
  44. ↑ See id, citing Seroff v. Simon & Schuster, Inc., 162 N.Y.S.2d 770 (Sup. Ct. N.Y. County 1957) , aff'd, 210 N.Y.S.2d 479 (1st Dep't 1960) , appeal denied, 210 N.Y.S.2d 1000 (1st Dep't 1961); Dreiser v. Paramount Publix Corp., 22 Copyright Off. Bull. 106 (N.Y. Sup. Ct. 1938); Jones v. American Law Book Co., 125 A.D. 519, 109 N.Y.S. 706 (1st Dep't 1908); Rayven Music Co. v. Embassy Picture Corp., 127 U.S.P.Q. 438 (N.Y. Sup. Ct. 1960) . Cf. Edison v. Viva Int'l, Ltd., 70 A.D.2d 379, 421 N.Y.S.2d 203 (1st Dep't 1979) ("right to edit or otherwise change" may merely permit reasonable modifications).
  45. ↑ See Nimmer on Copyright § 8D. 04[A][1], citing Royle v. Dillingham, 53 Misc. 383, 104 N.Y.S. 783 (Sup. Ct. 1907) ; Manners v. Famous Players-Lasky Corp., 262 F. 811 (S.D.N.Y. 1919); Rey v. Lafferty, 990 F.2d 1379, 1392 n.10 (1st Cir.) , cert. denied, 510 U.S. 828 (1993) , quoting Clifford Ross Co., Ltd. v. Nelvana, Ltd., 710 F. Supp. 517, 520 (S.D.N.Y. 1989) , aff'd mem., 883 F.2d 1022 (2d Cir. 1989) (author may insist contractually on provisions "to assure quality control and high standards in the exploitation of her creative work").
  46. ↑ See Nimmer on Copyright § 8D. 04[A][1], citing Manners v. Famous Players-Lasky Corp., 262 F. 811 (S.D.N.Y. 1919).
  47. ↑ See Nimmer on Copyright § 8D. 04[A][1], citing Edgar Rice Burroughs, Inc. v. Metro-Goldwyn-Mayer, Inc., 23 Cal. Rptr. 14 (Ct. App. 1962).
  48. ↑ See Nimmer on Copyright § 8D. 04[A][1], citing Preminger v. Columbia Pictures Corp., 49 Misc. 2d 363, 267 N.Y.S.2d 594 (Sup. Ct. N.Y. County 1966) , aff'd, 25 A.D.2d 830, 269 N.Y.S.2d 913 (1st Dep't 1966) , aff'd, 18 N.Y.2d 659, 273 N.Y.S.2d 80 (1966).
  49. ↑ See Nimmer on Copyright § 8D. 04[A][1], citing Stevens v. National Broadcasting Co., 148 U.S.P.Q. 755 (Cal. Super. Ct. 1966).
  50. ↑ 538 F.2d at 15.
  51. ↑ For a more detailed description of the facts and circumstances surrounding the case, see generally Monty Python Litigation at 611-14.
  52. ↑ See Monty Python Litigation at 611.
  53. ↑ See id. at 612.
  54. ↑ See id.
  55. ↑ See id.
  56. ↑ See id. at 628.
  57. ↑ 538 F.2d at 24.
  58. ↑ Id. at 21. See also Nimmer on Copyright § 8D. 04[A][1] (“[T]he court...reasoned that absent an express authorization to make changes, the license to reproduce and/or perform is limited to reproduction and/or performance in the form in which the authors wrote the work, so that a material departure from such form goes beyond the terms of the license, and hence results in an infringement of the reproduction and/or performance rights.”).
  59. ↑ Id.
  60. ↑ See Monty Python Litigation at 629.
  61. ↑ 539 U.S. 23 (2003).
  62. ↑ 539 U.S. at 34-35
  63. ↑ See Nimmer on Copyright § 8D. 04[A][2].
  64. ↑ See Nimmer on Copyright § 8D. 04[A][2], citing Preminger v. Columbia Pictures Corp., 49 Misc. 2d 363, 267 N.Y.S.2d 594 (Sup. Ct. N.Y. County 1966) , aff'd, 25 A.D.2d 830, 269 N.Y.S.2d 913 (1st Dep't 1966) , aff'd, 273 N.Y.S.2d 80 (1966); Stevens v. National Broad. Co., 148 U.S.P.Q. 755 (Cal. Super. Ct. 1966); Gee v. CBS, Inc., 471 F. Supp. 600 (E.D. Pa.) , aff'd mem., 612 F.2d 572 (3d Cir. 1979) (cause of action may exist where changes in a work are made "to intentionally ridicule or humiliate" the author).
  65. ↑ See id.
  66. ↑ Id., citing Granz v. Harris, 198 F.2d 585 (2d Cir. 1952) ; Edison v. Viva Int'l, Ltd., 70 A.D.2d 379, 421 N.Y.S.2d 203 (1st Dep't 197 .
  67. ↑ Id., citing Seroff v. Simon & Schuster, Inc., 162 N.Y.S.2d 770 (Sup. Ct. N.Y. County 1957) (selection of a translator), aff'd, 12 A.D.2d 475 (1st Dep't 1960) , appeal denied, 12 A.D.2d 755 (1st Dep't 1961).
  68. ↑ Id., citing Shostakovich v. Twentieth Century-Fox Film Corp., 196 Misc. 67, 80 N.Y.S.2d 575 (Sup. Ct. N.Y. County 1948) , aff'd, 275 A.D. 692, 87 N.Y.S.2d 430 (1st Dep't 1949); Morita v. Omni Publ'ns Int'l, Ltd., 741 F. Supp. 1107, 1113-14 (S.D.N.Y. 1990) , vacated, 760 F. Supp. 45 (S.D.N.Y. 1991). Note that this may apply only when an author’s consent, approval, or collaboration can be implied.
  69. ↑ See id., citing Benson v. Paul Winley Sales Corp., 452 F. Supp. 516 (S.D.N.Y. 1978).
  70. ↑ "This legislation covers only a very select group of artists." H.R. Rep. No. 101-514, 101st Cong., 2d Sess. 11 (1990).
  71. ↑ Scholar Nimmer points out that works created after January 1, 1991 (VARA’ date of effectiveness) must be analyzed under a bifurcated approach. “For works of visual arts, analysis should proceed with the federal and state statutes...For copyrightable creations apart from works of visual arts (as for artworks that do not meet the statutory definition of "works of visual arts"), the analysis should focus on [copyright principles].” See Nimmer on Copyright § 8D. 06.
  72. ↑ 17 U.S.C. § 101 (definition of "work of visual art").
  73. ↑ 17 U.S.C. § 101 (definition of "work of visual art"). Note that as long as the initial purpose of the photograph’s production is for exhibition, subsequent use for non-exhibition purposes will not divest VARA protection. See Nimmer on Copyright § 8D. 06[A][1].
  74. ↑ 17 U.S.C. § 101 (definition of "work of visual art")
  75. ↑ Nimmer on Copyright § 8D. 06[D].
  76. ↑ See 17 U.S.C. § 106A(e)(1) ("may not be transferred").
  77. ↑ See 17 U.S.C. § 106A(e)(1).
  78. ↑ See 17 U.S.C. § 106A(a)(1)(A).
  79. ↑ Nimmer on Copyright § 8D. 02[B][1].
  80. ↑ See 17 U.S.C. § 106A(a)(1)(B).
  81. ↑ See 17 U.S.C. § 106A(a)(2).
  82. ↑ See Nimmer on Copyright § 8D. 02[B][1] (citing H.R. Rep. No. 101-514, 101st Cong., 2d Sess. 15 (1990)).
  83. ↑ 17 U.S.C. § 106A(c)(3).
  84. ↑ H.R. Rep. No. 101-514, 101st Cong., 2d Sess. 17-18 (1990).
  85. ↑ 17 U.S.C. § 106A(a)(3)(A); See also Cort v. St. Paul Ins., 311 F.3d 979, 985 (9th Cir. 2002).
  86. ↑ See Nimmer on Copyright § 8D. 02[C][1].
  87. ↑ See id (citing Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994)).
  88. ↑ See generally 17 U.S.C. § 106(A)(c)
  89. ↑ Nimmer on Copyright § 8D. 02[C][2].
  90. ↑ 17 U.S.C. § 106(c)(2).
  91. ↑ Nimmer on Copyright § 8D. 02[C][3]. See also 17 U.S.C. § 113(d).
  92. ↑ See generally Cal. Civ. Code § 987. See also Nimmer on Copyright § 8D. 07; Droit Moral in California.
  93. ↑ See generally New York Arts & Cult. Aff. Law § 14.03. See also Nimmer on Copyright § 8D. 08.
  94. ↑ For discussion on states besides California and New York, see generally Nimmer on Copyright § 8D. 09.
  95. ↑ See Cal. Civ. Code § 987(d); New York Arts & Cult. Aff. Law § 14.03(2)(a).
  96. ↑ See Cal. Civ. Code § 987(c)(1); New York Arts & Cult. Aff. Law § 14.03(1).
  97. ↑ See Cal. Civ. Code § 987(b)(2).
  98. ↑ See e.g. Cal. Civ. Code § 987(c)(1).
  99. ↑ Nimmer on Copyright § 8D. 07[C].
  100. ↑ Rigamonti, Deconstructing Moral Rights at 359.
  101. ↑ Id.
  102. ↑ See Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 AM. J. COMP. L. 465 (1968); See also Dan Rosen, Artist’s Moral Rights Rights at 161.
  103. ↑ See Dan Rosen, Artist’s Moral Rights Rights at 161.
  104. ↑ Id. (Footnote 41).
  105. ↑ Moral Right at 509-10.
  106. ↑ Merson v. Banque de France, D.H. 1936.2.246.
  107. ↑ Chaliapine v. USSR and Bremer, Ct. App. Paris, July 28, 1932, Recueil Periodique Mensuel Dalloz 1934.2.139; Accord Commercial Tribunal Seine, Aug. 22, 1845, S. 1845.2.459; Ct. Bordeaux, Aug. 24, 1863, S. 1864.2.194; Com. Trib. Seine, March 11, 1911, D.A. 1912, 141; Civ. Trib. Seine, Dec. 31, 1924, D.H. 1925. 35; Civ. Trib. Seine, Dec. 22, 1926, D.H. 1927. 125; Ct. App. Paris, Feb. 13, 1930, Annales de Droit Commercial 1931.369.
  108. ↑ See Moral Right at 510 (Footnote 22), stating “In Benoit-Levy v. Soc. de prod. et exploit. du film "La Mort du Cygne" and Cinema Pereire Palace, the film "La Mort du Cygne" was presented in a cut version. Held, that, although the author had assigned performance rights, he had retained his moral right...In Pr6vert and Carne v. S.N. Pathe Cinema, Civ. Trib. Seine, April 7, 1949, Gazette du Palais May 11, 1949, D.A. 1950, 70, a film was also cut without permission. Held, that the authors were entitled to 100,000 frs. damages each for violation of the moral right, but owed the producer 50,000 francs each in damages for unauthorized seizure of the film...In Blanchar, Honegger and Zimmer v. Soc. Gaumont, Gaz. Pal. July 22, 1950, Ct. App., Paris, affirming Civ. Trib. Seine, April 6, 1949, Gaz. Pal. May 21, 1949, the court held that cutting a film without permission by the film authors constituted a breach of contract... In S.A. les Gymeaux v. Prevert and Grimault, Gaz. Pal. May 23, 1953, D. A. 1953, 133, 1954, 39, two of the authors of a motion picture complained that the other authors of the animated design film had violated plaintiffs' moral right, and they wanted the film withdrawn from exhibition. Held that the two authors had an inalienable moral right but that this right was limited by the rights of other collaborators; that withdrawing the film would in effect obliterate the moral right which the complainants wished to protect; that the film should be shown, but the receipts impounded until the matter had been decided on the merits.”
  109. ↑ See Moral Right at 510 (Footnote 22), stating “In James v. Bouillet and Hachette Publishers, Civ. Trib. Seine, December 31, 1924, D.H. 1925.2.54, plaintiff had permitted defendant B. to reproduce, in a school reader, certain extracts from his stories. B., without permission, made considerable changes. Held, that if B. wanted to include plaintiff's stories he should have respected the thoughts of the author and not distorted them.”
  110. ↑ See Merryman, The Refrigerator of Bernard Buffet, 27 HASTINGS L.J. 1023 (1976).
  111. ↑ See Moral Right at 161.
  112. ↑ Judgment of May 30, 1962, Cour d'appel, Paris, 1962 D. 570, aff'd, Judgment of July 6, 1965, Cour de Cassation, 1965 Gaz. Pal. 11 126.
  113. ↑ See Rigamonti, Deconstructing Moral Rights at 364. See also French Intellectual Property Code, Law No. 121-7 of July 1, 1992, Journal Officiel de la République Française [J.O.] [Official Gazette of France], July 3, 1992, p. 8801
  114. ↑ Moral Right at 510 (citing Section 9, LUG; §12, KUG).
  115. ↑ 79 RGZ 397, June 8, 1912. Acord 125 RGZ, 174, July 3, 1929; 1 FR (Fed. Supr. Ct., West Germany) 125/52, Oct. 20, 1953, GRUR, 1954, 80. See also Moral Right at 510 (Footnote 22).
  116. ↑ Moral Right at 510 (Footnote 22).
  117. ↑ See Rigamonti, Deconstructing Moral Rights at 364; See also Urheberrechtsgesetz [Copyright Law], Sept. 9, 1965, Bundesgesetzblatt, Teil I [BGBl. I] at 1273, last amended by Gesetz, Sept. 10, 2004, BGBl. I at 1774 §93(1).
  118. ↑ See Rigamonti, Deconstructing Moral Rights at 365.
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