Some jurisdictions, mostly outside of the United States, grant to creative works a set of rights collectively termed “moral rights” which supersede copyrights and patent rights and give to the artist the right to protect the work even if the artist has licensed the copyright. Using Canada as a good example, this article shall briefly outline the basics of moral rights and differentiate those rights from the more traditional rights to intellectual property confronted by businesses in the United States. Other jurisdictions have their own versions of moral rights and those should be reviewed if the creative work is to be protected or exploited in those locales.
The reader should first review our article on Intellectual Property.
In Canada, and most other “moral rights” jurisdictions, the essence of moral rights is to allow the creator to preserve “the integrity” of the work and to be “associated” with the work even if the work has been transferred to another party. Unlike all other copyrights, moral rights continue to sit with the original artist even if the copyright has been assigned or sold to a third party, such as a corporation which has hired the creator. The only way moral rights can be ignored is if the original artist explicitly waives all moral rights. Just because the creator has transferred the copyright does not mean the creator automatically waives the moral rights.
Moral rights are normally concurrent with the various copyright rights that the creator may have. In addition to typical copyrights for works of art, Canadian law allows for moral rights, which provide for the artist’s right “to the integrity of the work and…the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous” [R.S.C., 1985, c. C-42, 14.1 (1)]. The right to the integrity of the work as used here is defined as “the author’s right to stop the work from being distorted, mutilated or modified, to the prejudice of the author’s honor or reputation, or from being used in association with a product, service, cause or institution”.
In order for there to have been an infringement of the artist’s moral rights, the work produced must have been produced or displayed in such a way as to “prejudice the honor or reputation” of the artist. This can be achieved in one of two ways [R.S.C., 1985, c. C-42, 28.2 (1)]:
1. If the work is distorted, mutilated or modified
2. if the work is associated with a specific product, service, or cause
Both of the aforementioned infringements of moral rights only constitute an infringement contingent upon the fact that the artist’s reputation and honor has been tainted. The exception to this occurs in the case of a painting, sculpture, or engraving, in which case any distortion or modification regardless of whether or not it harms the artist’s reputation, will be considered a violation of moral rights [R.S.C., 1985, c. C-42, 28.2 (2)].
One of the most notable Canadian cases regarding moral rights was the case of Snow v. The Eaton Centre Ltd. (1982). Artist Michael Snow brought an action against the Toronto Eaton Centre which had, in the spirit of the Christmas season, placed red ribbons on his sculpture Flightstop. Snow felt that the ribbons had distorted his work and compromised its integrity. The Ontario High Court of Justice held that the action done by the Centre had in fact offended the reputation of Snow, based on the testimony of artists in the community.
In the case of Prise de Parole Inc. v. Guerin (1995), the plaintiff felt that the editor had infringed upon his moral rights by publishing extracts of the author’s original work. The Court, upon reviewing the opinion of the author as well as experts in the publishing industry, held that the modifications made by the publisher did not prejudice the author’s honor or reputation, and thus, no infringement of moral rights had occurred.
Further, under Canadian law, it cannot be considered a violation of moral rights if the modifications to the original art piece are made either as
- a change in the location of a work, the physical means by which a work is exposed or the physical structure containing a work
- steps taken in good faith in order to restore or preserve the original work
[R.S.C., 1985, c. C-42, 28.2 (3)]:
Copyright versus Moral Right:
It is important to note the crucial distinction between copyrights and moral rights in most circumstances. Unlike all other copyrights, moral rights may not be assigned to another party or entity. Even if the original artist grants another party all rights to copyright, moral rights still rest with the original artist. The only means by which moral rights can become a nonissue are if the original artist contractually waives his or her moral rights [R.S.C., 1985, c. C-42, 14.1 (2),(3)]. In the event that a waiver of moral rights is made in “favor of an owner or a licensee of copyright, it may be invoked by any person authorized by the owner or licensee to use the work, unless there is an indication to the contrary in the waiver” [R.S.C., 1985, c. C-42, 14.1 (4)].
According to Section 34 (2) of the Copyright Act, the holder of the moral rights is entitled to “all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right” [R.S.C., 1985, c. C-42, 34 (2)].
Given the international nature of most business involving creative works, whether artistic, design or digital, the concept of moral rights should be familiar to anyone involved in the process. What is often difficult for those versed in purely business criteria to grasp is the emotive sense of the criteria to be utilized. Note that “reputation and honor” are factors usually considered by the Trier of Fact, not merely economic use or practical use. A typical example would be altering a work of art to fit into a particular architectural scheme. Even if sold to the entity installing the work, a change such as that would allow a successful commencement of litigation.
And in the world in which software develops art, design and other aesthetic aspects, moral rights also fully apply in realms not often considered purely “artistic.”
Such rights can be waived and the person or entity purchasing same must take the time to carefully consider obtaining such rights and memorializing the waiver in an appropriate and legally binding written document. See our article on contracts.