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Understanding Moral Rights under Copyright Law
It is common to think that copyright privileges entitle the owner only to a monopoly on financial gains from their works, and in many cases, only these economic rights are exploited by intellectual property owners. Creators are, however, entitled to another set of rights that comes with being the author of an original work: moral rights. The concept of moral rights ensures that the integrity and intent behind the author's creation are fully preserved. Further, moral rights are necessary to protect the author's reputation and good name where the works they produce are defamed or altered without their permission.
Defining moral rights
Moral rights are a provision within copyright law intended to codify and protect the author's association with the creative work by preserving the integrity of the work and intent behind the work. Moral rights can be divided into two overarching categories: rights of attribution and association and rights of integrity.
Attribution rights refer to the author's ability to name himself or herself as the author of the work publicly, and to have their name appear in any relevant authorship sections of the work (i.e., credits of a film, signature of the artist on a painting, name of an author on a literary work, etc.). Rights of attribution also entitle the author to remain anonymous, if they so choose.
The right of association or being able to choose in what contexts and in association with which works or causes the creative work is shown or used is also an important author's right in copyright law. An author may be able to claim moral rights infringement and seek a remedy if use of their original work directly threatens an author's good name or reputation (i.e., a painting being showcased in a hunting exhibition that was created by an animal rights advocate who makes works about animal rights).
Integrity rights refer to the author's ability to preserve the intended meaning of the work and protect it from destruction or defamation. This includes the author's ability to protect their work from being altered in any manner without their permission, being referred to or used in a derogatory way, or being destroyed without first offering to give it back to the author. Importantly, the alteration of a work in good faith to preserve its intended meaning or nature is not considered an infringement of moral rights under Canadian copyright law.
Moral rights protection in Canada
Canadian copyright owners are entitled to moral rights protection for the same amount of time as their other copyright privileges: as of December 30, 2022, the term of copyright in Canada is life-plus-seventy, an extension of twenty years from the former term of life-plus-fifty; that is to say, copyright protection now lasts for the duration of the lifetime of the author, plus seventy years from the end of the calendar year of their death (or the death of the last living author, if the work was authored by more than one individual).
The extension of the copyright term is not retroactive. If, for example, an author died on June 1, 1970, copyright in their works expired on December 31, 2020. Works protected by copyright on or after December 30, 2022 will receive an additional 20 years of protection. However, any works whose copyright expired before December 30, 2022 will not receive an additional 20 years of protection.
Moral rights are statutorily codified in sections 14.1 and 14.2 of the Canadian Copyright Act (sections 17.1 and 17.2 for aural performances and sound recordings), which state that "[t]he author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, 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."
Infringement of moral rights
Any act or omission that is contrary to any of the rights provided for under section 14.1 of the Copyright Act is, in the absence of consent by the author, an infringement of moral rights.
The right to the integrity of the work is violated where the work has been used in association with a product, service, cause, or institution and the act is to the prejudice of the honour or reputation of the author. With respect to paintings, sculptures, and engravings, any distortion, mutilation or modification is deemed to prejudice the author’s honour and reputation, and consequently to infringe the author’s moral rights. With respect to other types of work, what constitutes a modification that prejudices an author’s honour or reputation is less clear.
The right to association with a work is subject to a reasonableness standard. Thus, the omission of an author’s name from a work will not be enough to prove an infringement of moral rights. The author must also show that it is reasonable to have the author’s name associated with the work.
Section 34.2 of the Copyright Act dictates the remedies available to an author for infringement of moral rights. These include among them injunctions (court orders prohibiting certain actions), damages (monetary awards), and delivery up (an order that the infringing material is handed over).
Further, because Canada is a signatory of the Berne Convention for the Protection of Literary and Artistic Works, it is also governed by moral rights provisions therein, which can be found in article 6bis. That said, the Berne Convention defers expressly to state authority as concerns redress for safeguarding moral rights. This means that if the moral rights of a Canadian author are infringed outside Canada, Canadian copyright law will apply, and the author will be entitled to enforce their Canadian moral rights in Canada under the Canadian Copyright Act.
Canadian courts first examined the issue of moral rights infringement in Snow v. Eaton Centre Ltd., (1982) 70 C.P.R. (2d) 105 (Ont. H.C.J.). In this case, the Toronto Eaton Centre was found liable for infringing the plaintiff’s moral rights for putting festive ribbons on the plaintiff’s sculpture depicting sixty geese. The plaintiff argued that this modification was prejudicial to his reputation and compared it to “putting a wristwatch on Michelangelo’s David or earrings on the Venus de Milo.” The Ontario High Court of Justice—weighing the plaintiff’s opinion together with the opinions of other artists who were knowledgeable in the field—found that the plaintiff’s concern for his reputation was reasonable. The Court granted an injunction to compel the removal of the ribbons from the necks of the geese.
In 2003, the Ontario Superior Court of Justice considered the topic of moral rights again in a case between a photographer and a golf club, Ritchie v. Sawmill Creek Golf & Country Club Ltd. The photographer alleged his moral rights in his photographs displayed on the golf club’s website were infringed by the photos being enlarged beyond the size in which he provided them, and by his name having been removed from them. The court found the first argument unconvincing as the photos were not so enlarged as to be of markedly reduced quality and damaging to the plaintiff’s honor and reputation. As for the photographer’s moral rights of association “where reasonable in the circumstances” with his work, the court considered that, following a complaint to the RCMP that the golf club had infringed his copyright, it was no longer reasonable for the plaintiff to believe the club would continue to associate him with the photographs on their website.
Moral rights were most recently considered by a Canadian court in the case of Wiseau Studio, LLC et al. v. Harper et al. The plaintiff, Wiseau, is the director behind what has been called “the greatest worst movie ever made”, the 2003 drama “The Room”. Wiseau sued Rick Harper who directed a documentary on the film entitled “Room Full of Spoons”. Wiseau alleged, among other things, infringement of his moral rights. Wiseau felt his rights were infringed because for one, the documentary used low-quality clips of “The Room” taken from Blu-ray discs or from YouTube, and two, because he was associated with the documentary, which he finds “reprehensible”.
The court was not convinced and reminded us that a determination of whether moral rights have been infringed is not solely based on the author’s subjective feelings. Wiseau alone took issue with the low-quality clips, and they were also the only clips the defendant could have used because Wiseau would not license the use of his high-quality recording without acquiring full editorial control. As for Wiseau’s second argument, it, too, was rejected by the court. The court wrote that it failed to see how the director’s work was distorted or mutilated by the documentary, and even if Wiseau was found to have been associated with the documentary, it did not prejudice his reputation or honour (as required by the Copyright Act) for the simple reason that the documentary’s commentary on “The Room” as being a terrible film was nothing new.
Waiving moral rights
The Copyright Act stipulates that moral rights cannot be transferred during the lifetime of the owner (upon death, they are transferred to the same individual who inherits the regular copyright as part of the general intellectual property inheritance process). Further, the Copyright Act specifies that assignment of copyright does not amount to a transfer of moral rights to the new owner of the copyright. This means that even if the ownership of the copyright is transferred, the moral rights remain with the original author.
Moral rights can, however, be waived in whole or in part at the discretion of the author who holds the rights. This waiver will extend to all entities licensed or otherwise permitted to use the copyrighted work. Once moral rights are waived, they cannot be reacquired by the author.
The decision to waive moral rights is one that the author might consider using to monetize the author's rights. For example, an author may demand a higher licensing fee in exchange for a waiver of moral rights that permits the licensee to use the work more freely, and perhaps without attribution. By way of further example, upon deciding to assign the copyright in their work, likewise, an author may be able to negotiate a better deal by also offering to waive moral rights.
In contrast, businesses whose employees and independent contractors create works subject to copyright for them should seek to incorporate waivers of moral rights in their employment agreements and contracts to enable the business to freely deal with the works created for them without encumbrances.
Conclusion
Because creative works are so closely tied to the author's identity and thought process, public policy dictates the need to protect authors from more than just financial infringement. Moral rights provide the author with some control over their work irrespective of who owns the work at the time and helps to preserve their integrity, reputation and right to be associated (or not) with their original creations.
If you would like our help with a moral rights issue, contact us now for a complimentary and confidential initial telephone appointment.
