Moral Rights: Rights that don’t let go

So you transferred your rights in your work to someone else, but just when you thought all is lost, here’s something to remember – you still have a moral right in your work!

Moral rights refer to a set of rights that you inherit with the creation of your work, but unlike copyright that can be transferred or assigned, moral rights stay with the creators of the work, no matter what.

Why is it called a moral right?

This photo was shared under a Creative Commons Attribution License and was taken from the Flickr photostream of Winter Pearl
This photo was shared under a Creative Commons Attribution License and was taken from the Flickr photostream of Winter Pearl

 

A moral right is a right that acknowledges the inherent connection between the creator of the work and the work itself. It is a right that concerns itself with the aesthetic fate of the work rather than its commercial value or progress. A moral right earns its name from the underlying premise that a work of art is the moral extension of its author or creator – a moral right has nothing to do with morality, spirituality or religion.

So what does a moral right include?

A moral right basically covers several rights that play a huge role in determining the aesthetic or cultural fate of the work by emphasising the connection between author and work. So a moral right basically can be sub-divided into the following rights:

(1)  the right to divulgation or the right to controlling first public distribution of the work;

(2)  the right to attribution that is the right to receive credit for the work;

(3)  the right of integrity that is the right to object to any alterations in a work that might damage the creator’s reputation or the aesthetic sensibilities of the work; and

(4)  the right to withdraw a work of art from public circulation

A moral right, depending on the legal system it is found, ends up including either all the abovementioned sub-rights or some kind of combination of two or more.

How does a moral right help me as an artist?

Let’s say you’ve created this gorgeous illustration addressing child rights and education. You’ve transferred the rights over this work to a Company so that they can incorporate the illustration in their posters as a part of their campaign on child rights. A few months later, you find that the Company has been using the illustration on a series of bags that they are manufacturing and selling for exorbitant profits. Now in this situation, you as the artist have already transferred the copyright and thus the commercial or economic rights accruing in the illustration, but you’re still furious about the misuse of your illustration and begin to wonder what to do – this is where moral rights step in. In this particular example you may not be able to seek compensation for the commercial misuse of your work, but you might just be able to get compensated for the aesthetic misuse of your work.

So do artists find their moral rights being violated a lot?

Well, there have been enough instances where artists have claimed violation of their moral rights and have won their case. Writers and scriptwriters often rely on moral rights as a way to deal with situations where they have not been awarded credits for their work, or worse for having to endure watching the distortion of their works. This was at the centre of the legal dispute in the case of Arun Chadha v. Oca Productions Private Limited (AIR 1991 SC 2092) – a case that explored the right to integrity and attribution in the context of credits for a television series.

Interestingly enough, the moral rights argument even works when one of the parties belongs to another country. In 2011, the Delhi High Court passed an interim injunction or basically temporarily stopped the distribution of a song from the movie, Urmi owing to the allegation that the song’s music composer, Deepak Dev had infringed the copyright of Canadian singer, Loreena McKennitt. Besides copyright infringement though, Loreena also claimed violation of her moral rights – something she felt had happened owing to Deepak Dev’s seductive interpretation of her own milder song.

With respect to considering the distortion of a work as a cause for moral rights violation, the law in India has changed following the 2012 Copyright amendments, wherein now only that mutilation or distortion of a work that has a direct impact on the artist’s reputation, is to be considered a violation of the artist’s moral right.

Do all countries recognize moral rights?

No – the moral rights regime is enforceable only in some countries. Originating in Europe, moral rights are particularly popular in countries like France where a great deal of emphasis is placed on the relationship between artist and art-work. In India, moral rights are given statutory recognition under Section 57 of the Indian Copyright (Amendment) Act, 2012.

So, what do I need to remember about moral rights?

Moral rights are not to be taken lightly as they are the rights that get to stay with you regardless of any other transfer or assignment of rights you might have committed yourself to. Quick tip – if you’re signing an agreement then watch out for a clause that talks about waiving the right to make a claim about moral rights violations.

As an artist, it makes sense to learn and discuss the scope of moral rights so in case you have a query or you have something to say about moral rights, then do leave a comment or get in touch.

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