Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. While the United States became a signatory to the convention in 1988, it still does not completely recognize moral rights as part of copyright law, but rather as part of other bodies of law, such as defamation or unfair competition. Those jurisdictions that include moral rights in their copyright statutes are called droit d'auteur states, which literally means "right of the author".

Moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work (i.e., it cannot be distorted or otherwise mutilated). Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyright, thus even if an artist has assigned their rights to a work to a third party they still maintain the moral rights to the work. Some jurisdictions allow for the waiver of moral rights. In the United States, the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but only applies to works of visual art.

Article 6bis of the Berne Convention protects attribution and integrity, stating:

Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

— Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986).

Moral rights of visual artists in the United States

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Visual Artists Rights Act (federal law)

In the case of Carter v. Helmsley-Spear Inc. 861 F. Supp. 303 (S.D.N.Y. 1994) it was held that the removal of a sculptural work incorporated in the lobby of an office building would violate the rights of the artists under the Visual Artists Rights Act of 1990 stating, inter alia:

"that the author of a work of visual art has the right to prevent intentional alteration of the work that would prejudice the artist's honor or reputation, and to prevent destruction of a work of recognized stature."

While this case was ultimately overturned on appeal because it was held that the sculptural work was a work made for hire (71 F.3d 77, 80 (2d Cir. 1995), cert. denied 116 S. Ct. 1824 (1996)), it was the first case to interpret VARA provisions applying to visual artworks.

Copyright Revision Act, derivative rights under (federal law)

Copyright holders have the right to control modifications of their works under the 1978 copyright act. In the Monty Python case, Gilliam v. ABC, the British comedy troupe prevailed over the American Broadcasting Company, which had bowdlerized the Monty Python's Flying Circus for length and content. Because Monty Python still held the rights to the scripts, they were able to prevent ABC from showing edited versions of the program, even though the BBC had granted broadcast rights to ABC.

The Monty Python position was extended in Midway v. Arctic, which the court in Galoob v. Nintendo chose not to follow.

Public domain works

In Dastar v. Twentieth Century Fox, the Supreme Court quashed an attempt to bootstrap moral rights onto works in the public domain through section 43(a) of the Lanham Act.

Coincidentally, Twentieth Century Fox had previously been the defendant in a similar suit almost sixty years earlier. Russian composers, whose work was in the public domain, sued Fox for using their work in the film The Iron Curtain, regarded as anti-Communist. The state court (Dastar was based on federal law, this was in state court) found against the composers on similar grounds.

Courtesy of non-attribution

In other cases, the actual author or co-author (usually a hired employee) may not want to be associated with a personally disliked work. However, if the work must be credited and published to recover its costs, the actual author may decide to hide behind a pseudonym as a way to practically "abandon" the moral rights.

One such pseudonym was Alan Smithee, a name used by discontented Hollywood film directors who no longer want to be credited between 1968 and 1999. In case the work is unfinished, the use of a pseudonym may be considered an approval from the original author so the copyright owner could do whatever it takes to finish and market the unwanted work.

The director of Highlander II famously wanted his name removed after the completion bond company took over film production, but he was contractually obliged not to impugn the film and he was told that using a pseudonym would impugn it.

Intellectual property

Droit moral | Droit moral | 著作者人格権