Simon on Copyright, Moral Rights, and the Social Self @david__simon @Harvard_Law

David A. Simon, Harvard Law School, is publishing Copyright, Moral Rights, and the Social Self in volume 34 of the Yale Journal of Law and the Humanities (2023). Here is the abstract.

Moral rights—noneconomic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction. On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the “harm” they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate question of whether and to what extent the Investment Theory is justified.

Download the article from SSRN at the link.

Craig and Dhonchak on A Feminist Theory of Moral Rights, Creative Agency, and Attribution @craigcarys @AnupriyaDh_19 @Elgar_Law @OsgoodeNews @NLUDofficial

Carys J. Craig, Osgoode Hall Law School, York University, and Anupriya Dhonchak, Faculty of Law, University of Oxford; National Law University, Delhi, are publishing Against Integrity: A Feminist Theory of Moral Rights, Creative Agency, and Attribution in the Research Handbook on Intellectual Property and Moral Rights (Ysolde Gendreau, ed., Edward Elgar) (Forthcoming).

The term “moral rights” captures a collection of personal rights of the author that run parallel to economic copyright interests. These moral rights include the right of attribution (the right to be associated with the work as its author) and the right of integrity (the right to object to modifications of the work that may prejudice the author's honor or reputation). It is generally agreed that moral rights occupy a unique place (the moral high ground, if you will) within the copyright realm, reflecting an intimate and ongoing personal connection between the author and their work that is deserving of acknowledgement and respect. Yet it is not generally recognized that feminist theory has something to say about the nature of this intimate personal connection and the rights that it seemingly entails. This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. We begin by explaining why certain facets of conventional moral rights theory (typically based on the writings of Kant and Hegel) are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. Conceptually, they demand and support an individualized and romanticized conception of the (patriarchal) author-figure. In practice, to the extent that strong moral rights of integrity and association limit dialogic engagement and transformation of protected works, they risk suppressing the kind of critical and counter-hegemonic expression that is vital to a feminist political agenda. Employing alternative feminist conceptions of situated selfhood, relationality, and dialogic authorship, we then explore what it might mean to reimagine moral rights in a way that resists claims to exclusion and control, but reflects the personal, social, and political value of creative agency. We present a limited defense of the right of attribution on these terms, and conclude with a call for attribution as feminist praxis.

Download the chapter from SSRN at the link.

Barrett on Moral Rights and Immoral Artists @VicUniWgtn

Jonathan M. Barrett, Victoria University of Wellington, has published Moral Rights and Immoral Artists, a paper presented at the Asian Pacific Copyright Association Conference, Wellington, New Zealand, November 2019. Here is the abstract.

The word ‘moral’ used to denote upright behaviour and ‘moral’ to denote certain authorial rights (droit moral), are homonyms: the things signified by the same signifier are different. Because Germany’s moral rights equivalent is the personality right (Persönlichkeitsrecht), the German language does not permit the wordplay employed in the title. Nevertheless, this paper argues that personhood (Persönlichkeit), which is intertwined with the fundamental human rights principle of respect for equal and inherent human dignity, is the critical consideration for both understanding moral rights and engaging with the vexed issue of artworks created by immoral artists. This paper, which should be read as a sample of ongoing research, therefore approaches moral rights from a personhood perspective in order to construct analytical tools for engaging with immoral artists and their artworks.

Download the article from SSRN at the link.

Goold on the Lost Tort of Moral Rights Invasion @harvard_law

Patrick Russell Goold, Harvard Law School, is publishing The Lost Tort of Moral Rights Invasion in the Akron Law review. Here is the abstract.

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply with international obligations. This Article presents a history of moral rights protection that challenges, to a degree, that common historical narrative. The Article tracks how American courts adjudicated attribution and integrity disputes during the twentieth century. Doing so not only reveals that the American judiciary was more sympathetic to these claims than commonly appreciated, but, even more surprisingly, came close to developing a tort of moral rights invasion. While copyright historians know that courts have long provided proxy protection for moral rights under preexisting common law causes of action (e.g., defamation, unfair competition, privacy, etc.), what is not widely known is how frequently courts were willing to protect attribution and integrity interests directly under the banner of moral rights. This Article tells the story of how courts in the mid-twentieth century, applying state law, increasingly articulated a "sui generis tort" of moral rights invasion. It then proceeds to question why the moral rights tort stagnated and was forgotten about in the late twentieth century.

Download the article from SSRN at the link. Cross-posted to Media Law Prof Blog.

A New Book On Artists' Moral and Human Rights

A new book announcement from Hart Publishing:

NOW PUBLISHED 

Freedom of Artistic Expression
Essays on Culture and Legal Censure
Paul Kearns
This book presents a unique and comprehensive examination of the human and moral rights of artists. In what is arguably the first exhaustive book-length account of artists' rights, Paul Kearns explores the problems associated with censorship, both from philosophical and legal perspectives, and focuses on the various ways in which the morality of art is legally regulated in different jurisdictions. In relation to human rights, English, French and American law, the law of the European Convention on Human Rights, European Union law and public international law are all closely scrutinised to discover the extent to which they offer protection for artistic freedom. The author also examines domestic and international law in respect of artists' moral rights, the law of copyright and related laws. In short, the book provides an original, and sometimes controversial, analysis of persistent concerns regarding the legal regulation of the arts universally, doctrinally and theoretically, and seeks to offer an holistic treatment which will appeal to art lawyers, artists and those interested in the future of the arts.

The Author

Paul Kearns is a Senior Lecturer in Law in the University of Manchester, where he teaches Public International Law, Human Rights Law and, as a specialist yet popular topic, Law, Literature and Art. 

Book Details Oct 2013     260pp     Hbk     9781841130804     RSP: £50 / €65

DISCOUNT PRICE: £40 / €52  

HOW TO ORDER ONLINE

To receive the 20% discount online please write ref: INLL in the voucher code field and click apply:

http://www.hartpub.co.uk/BookDetails.aspx?ISBN=9781841130804 

Or, please contact Hart Publishing by telephone or e-mail and quote reference INLL when placing your order

Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW, UK
Telephone Number: 01865 517530; Fax Number: 01865 510710
 

Protecting Intellectual Property "In Progress"

Nathan Murphy, University of Connecticut, has published Thème Et Varaations: Why the Visual Artists Rights Act Should Not Protect Works-in-Progress, at 17 UCLA Entertainment Law Review 110 (2010). Here is the abstract.

Many countries recognize "moral rights," which allow artists some level of control of their art after it is sold, for example by guaranteeing that their work’s authorship is acknowledged and that it cannot be modified without their permission. In contrast to Europe, where they have long existed, these rights have only been broadly recognized in American law since 1990, when Congress enacted the Visual Artists Rights Act (VARA).



Although other parts of VARA have received extensive scholarly attention, one question that has been essentially overlooked is whether VARA applies to unfinished works of art. This is surprising, because it has been central in some of the most well-known VARA decisions. Until very recently, those opinions that could have weighed in on the issue have also avoided it. But given how often the issue arises, courts could not avoid it forever, and in late January of 2010, the United States Court of Appeals for the First Circuit decided in Massachusetts Museum of Contemporary Art v. Büchel, No. 08-2199, 2010 WL 297834 (1st Cir. Jan 27, 2010), that VARA fully applies to works-in-progress, from the first stroke of the artist’s brush onward.



Although some authors have rejected the doctrine of "moral rights" wholesale, that is most decidedly not the aim of this paper. Instead, its central argument is that VARA does not (and should not) apply to any works-in-progress, regardless of whether these works would (or should) be protected in finished form. Although this implies that that MassMoCA was wrongly decided, the argument is much broader. Indeed, the MassMoCA opinion’s cursory analysis belies the fact that the question of works-in-progress is very complex. Accordingly, this paper examines VARA’s statutory history, contemporary art theory, and the economic underpinning of the unique American moral-rights framework and concludes that they all suggest no VARA protection for works-in-progress. Further, this reading is (counterintuitively) most consistent with the statute’s aim to protect artists’ moral rights. Unlike with completed art, "moral rights" in unfinished works are protected existing legal remedies.

Download the article from SSRN at the link.