Moral rights

Moral rights

1. Once a work has qualified for CR protection, authors of certain works are given moral rights as well as economic rights

2. Infringement of moral right in UK is breach of statutory duty and will result in an award of damages

3. Unsatisfactory implementation of art6 Berne Convention into UK law?

4. Moral rights as unjustified legal interventions in the free market?

5. I. Right of attribution (or paternity)

   • Provides creators of certain types of work with the right to be identified as the author of those works; lasts for same period of time as CR
   • Facilitates
     • management of intellectual works
     • the channelling of royalties
     • interpretation of the work
     • celebration, reward and sustenance of authorial talent or genius
     • construction of the individual as the creator of an intellectual oeuvre
   • Subsistence of the right of attribution
     • Relevant works
       • Only for literary, dramatic, musical and artistic works (author) and for films (director)
       • CDPA s72(6): does not apply in relation to work made for purposes of reporting current events or to contributions to a newspaper, magazine, periodical or encyclipaedia or simillarwork
       • Does not apply to computer programs, computer-generated works, typefaces or works protected by Crown
     • The requirement of assertion
       • CDPA s78(1): right of attribution does not arise until it has been asserted
       • Right can be asserted in 2 ways
       • 1) when CR in work is assigned, author or director includes a statement that asserts their right to be identified
       • 2) right may be asserted by an instrument in writing signed by the author or director
       • Two additional modes of assertion for artistic works
       • 1) right will have been asserted if the artist is identified on the original, copy, frame, mount or other attachment when the artist or first owner parts with possession of original
       • 2) right may be asserted by inclusion of a specific statement to that effect in a licence that permits copies of the work to be made
   • Infringement
     • Need to show that 1) the author has not been properly identified, 2) the work has been dealt with in circumstances under which attribution is required, 3) none of the defences or exceptions apply
     • Nature of the identification
       • Sawkins v Hyperion Records: merely thanking a person for 'preparing materials' was held not to have identified person's authorship
       • CDPA s77(7): the name of the author must appear in or on each copy of the work in a clear and reasonably prominent manner
       • So long as the name becomes apparent during its use, there does not seem to be any need for the author to be named in a way that can be ascertained prior to acquisition of a copy
       • CDPA s77(7)(b): for buildings, the identification should be visible to persons entering or approaching the building
     • Circumstances under which attribution is required
       • s 77(7)(a): For literary or dramatic works, author has the right to be identified whenever copies of the work are published commercially, or the work is performed in public or broadcast
       • s77(2), (3): author or music or lyrics of a song has right to be named on commercial publication of the song but the right of attribution does not extend to situations where work is performed in public or broadcast (the 'disc jockey exception')
       • s77(4): for artistic works, artist has right to be identified where work is published commercially, is exhibited in public or where a visual image of it is broadcast or included in a cable transmission + the creator of a building, sculpture or work of artistic craftmanship should be named where copies of a graphic work representing it, or of a photograph of it are issued to the public
     • Exceptions
       • S79(3): if the employer of CR owner authorised reproduction of the work, then the right does not apply: because an employer has paid for creation of the work, it should have freedom to exploit it
       • CDPA s79(4)(a): right of attribution will not be infringed where act in question amounts to fair dealing for the purpose of reporting current events by means of a sound recordings, film, broadcast or cable programme (fair dealing defences parallel the moral rights provisions: fair dealings for which acknowledgment is required but not provided, are likely to infringe both CR and moral rights)
       • CDPA s79(4A): exception where work is used for purposes of examination, parliamentary or judicial proceedings and government inquiries
       • No need for sufficient acknowledgment for parodies etc but not for right of attribution so risk of breach of moral risks by parodists
     • Waiver
       • s87(2): an author can waive their right of attribution

6. II. Right to object to false attribution

   • s84: individuals have the right not to be named on works that they have not created
   • Clark v Associated Newspapers: right to object false attribution applies to persons wrongly named as the authors or literary, dramatic, musical or artistic works or as the directors of films; lasts for 20 years after death of person who is falsely said to be the author
   • Right is infringed by a person who issues copies of a work to the public or exhibits in public an artistic work on which there is false attribution
   • CDPA s84(5): infringement where certain commercial acts are done with the knowledge that the attribution is false
   • Clark v Associated Newspapers: whether work has been falsely attributed depends on the 'single meaning which the work conveys to the notional reasonable reader'; no need to prove damage
   • Moore v News of the World: attribution to a member of the public of a newspaper article written by a journalist, but based on conversations between the two
   • Clark v Associated Newspapers: newspaper parody of a politician's diaries
   • Noah v Shuba: author's work held to be falsely attributed when it was attributed to the author after having been substantially added to by another person without the author's consent
   • Preston v Raphael Tuck: a replica of a painting including the signature of the original artist is falsely attributed since the replica would not solely be made by the original artist
   • CDPA s84(6): right to object to FA extended to situations in which the work had been altered, even if that alteration amounts only to deletion of part of the work
   • Carlton Illustrators v Coleman: right infringed where black and white drawing is colourised
   • Ridge v English Illustrated Magazine: D published a story that they attributed to C (well-known author). Defamatory. (can use defamation and passing off here as well)

7. III. Right of integrity

   • Lasts for same time as CR + is the right to object to derogatory treatment of a work or any part of it
   • Subsistence to the right
     • CDPA s80(1): right of integrity given to the author of a literary, dramatic, musical or artistic work and the director of a film
     • s81: does not apply to a work made for the purpose of reporting current events, to publications in newspapers or to collective works of ref such as encyclopaedia
   • Infringement of the right
     • In order for right of integrity to be infringed, an author or director must be able to show that 1) there has been derogatory treatment of the work, 2) the work has been dealt with in circumstances under which the author is protected from derogatory treatment, 3) none of the exceptions apply, 4) the right has not been waived or the action consented to by the author
     • Derogatory treatment
       • Treatment
         • CDPA s20(2)(a): treatment means 'addition to, deletion from, alteration to or adaptation of the work'
         • Pasterfield v Denham: the work has its own integrity or logic i.e. a beginning and end, a foreground, middleground and background, line, shade and colour
         • D must interfere with the internal structure of the work
         • Noah v Shuba: 17 words were added to C's medial guide; this constituted treatment
         • Morrison v Lightbond: song was chopped up and inserted into megamix => treatment
         • Tidy v Trustees of the Natural History Museum: drawing was reproduced in reduced size and coloured => treatment (reduction was still alteration)
         • Huston v Turner Entertainment: black and white film having been colourised was treatment => internal composition or structure of work is changed
         • Berne Convention seems to suggest that any derogative treatment (not only of structure + composition) will count as infringing i.e. where meaning + significance of a work is altered
         • Hanging of a piece of religious art next to piece of erotic art would change meaning, would not amount to treatment in UK but probs would under Berne Convention
         • Confetti Records v Warner Music Ltd: Ds had rapped over C's track, D accepted that this was treatment but judgment leaves unstated what was treated; musical work or literary work?
         • Harrison v Harrison: 'treatment of a work is a broad, general concept; de minimis acts apart, it implies a spectrum of possible acts carried out on a work, from the addition of a single word to a poem to the destruction of the entire work'
         • CDPA s80(2)(a): 'treatment' excludes translations of literary and dramatic works and arrangements or transcriptions of musical works involving no more than a change of key or register
         • Wood v Chart: translation must be accurate; courts might treat inaccurate or poor-quality translation as if it were not a translation at all and thus falling outside the scope of the exclusion
       • Derogatory
         • s80(2)(b): a treatment is derogatory if it amounts to a 'distortion' or 'mutilation' of the works, or if it is otherwise prejudicial to the honour and reputation of the author
         • Tidy v Natural History Museum: submission that the treatment was a distortion was treated as an alternative to the submission that it was otherwise prejudicial
         • Delves-Broughton v House of Harlot: cropping of a photo was distortion and so infringement on photographer's moral right (but was not prejudicial to author's rep) but limited authority?
         • Confetti Records v Warner Music: prevalent view is that in order for a work to be distorted or mutilated, the action must be prejudicial to the honour or reputation of the author
         • Snow v The Eaton Centre (Canadian): sculptor of international repute created work and sold it to shopping complex. Sculpture was geese, Ds tied ribbons around their necks for Christmas. C argued that this was prejudicial to his honour and rep. Ontario high court ruled in favour of C: so long as it was not irrational, the author's word on the matter would be sufficient. The words 'prejudicial to honour and rep' involved a certain subjective element on the part of the author, so long as it was reasonably arrived it
         • Tidy v Trustees of the Natural History Museum: cartoonist game museum right to exhibit black-and-white cartoons of dinosaurs. Gallery had reduced their size and added colour. C complained. Held: the alterations did not amount to distortions + in order to find that the treatment was prejudicial to C's honour, it was necessary to have evidence as to how the public perceived D's acts. Need for an objective test of reasonableness. (UK case, >< Snow)
         • Pasterfield v Denham: county court => for a treatment to be derogatory, C must establish that the treatment is either a distortion or a mutilation that prejudices his honour/rep as an artist. Not sufficient that author is himself aggrieved by what occurred
         • Confetti Records v Warner Music UK Ltd: C's garage track had been superimposed with rap by other garage act; this was treatment but it was not derogatory; Lewison J: 1) the fact that the words were difficult to decipher militated against them being derogatory, 2) meaning of the words could be determined only by way of expert evidence and there was none, 3) C had failed to provide evidence of his honour/rep
     • Circumstances under which the author is protected from derogatory treatment
       • When someone communicates, disseminates or renders the derogatory treatment available to the public and is not a right to prevent destruction of the work itself
       • CDPA s80-s83
   • Exceptions and defences
     • CDPA s82: for works created by employees, the right of integrity does not apply to anything done by or with the authority of CR owner except for two situations
     • s81(6)
     • s80(5)
   • Waiver
     • s87 CDPA
   • Alternative and related forms of relief
     • Humphries v Thompson: if moral right argument fails, C can always use defamation
     • Archbold v Sweet: author successfully claimed that has rep had been injured by publication of a further edition of his work that contained a number of errors
     • Frisby v BBC: C can also rely on contract instead of moral rights
   • The future: harmonisation
     • Directives do not mention moral rights
     • Could be justification for harmonising them

8. IV. The right to privacy in photographs and films

   • Far removed from true moral rights
   • s85 CDPA