A Moral Dilemma?

Economic and Moral Rights

In copyright law, the creator of a copyrighted work retains certain rights by virtue of his or her role in the development of the work. Those rights can be divided into two distinct ones: economic and moral .

Economic rights allow the work's creator to sell access to the work, or otherwise exploit it for the creator's profit. Moral rights ' a special subset of copyright law often overlooked by lawyers and laymen alike ' allow the creator to control how a creative work is used in non-economic ways. The two major moral rights provided for under the U.S. Copyright Act are the right of attribution, also known as the right of paternity, and the right of integrity. Their application in the U.S. deserves some attention for those who would seek to license and use another's creative content.

The right of attribution provides that no matter who is allowed to exploit the economic rights of a particular copyrighted work (for example, no matter to whom it is licensed), the author still retains the right to be credited as the creator of the copyrighted work. This seems straightforward, and it is largely easy to obey and enforce.

The right of integrity, in contrast, can be difficult to pursue, not least because of the relative laxity of its enforcement in U.S. courts. This right allows the creator of a work to object to and prevent any action that would destroy its integrity. If a creator feels that making certain changes to a work would undermine his or her creative intent or vision, then he or she can prevent that change from being implemented. This right stands independent of any economic rights that another person may own by virtue of a license or ownership of the underlying copyright.

Moral rights come historically from France and are also sometimes referred to as droit morale . In many countries in Europe, it is impossible for an author to transfer his or her moral rights by contract: that is, despite the fact that a licensor of an author's work may have a contract that grants it a copyright license and gives it all forms of right to do whatever it wants to with that work, the author still retains the moral rights listed above (and others, as provided under French law). This means that under current French law, any contract terms contrary to this droit morale are irrelevant; the French court will not enforce a contract if it attempts to take away or undermine an author's moral rights in her or his work.

Moral Rights and Jay-Z

The U.S. takes a very different perspective on moral rights. The U.S. Copyright Act grants moral rights to creators of visual works in 17 U.S.C. '106A, but does not grant moral rights to creators of other types of copyrighted works, such as literary or musical works. And, according to most legal commentators, U.S. law does not accord moral rights much value, and only includes them when under pressure to conform with certain international treaties. A brief search of U.S. case law confirms this skeptical view that moral rights are rarely asserted in the U.S. and often such an assertion is given little weight by a court. Part of the reason for this appears to be that many copyright licenses or copyright assignments contain an explicit waiver of all of the creator's moral rights, even for works (like books) for which U.S. law does not protect moral rights.

What does this mean for today's licensor of copyrighted content? Often, it means frustration. Just ask rapper and music business mogul Shawn Carter ' a.k.a., “Jay-Z” ' about how much fun it is to fight a moral rights case. Carter had a smash hit in 2000 with his single “Big Pimpin'.” The song features a catchy loop of “Khosara, Khosara,” an Egyptian song from the 1960s by Baligh Hamdy. Hamdy's children inherited the song's copyright interests upon the musician's death in 1993; and Jay-Z had licensed it from one of those children. Seven years later, in 2007, another of Hamdy's children, Osama Ahmed Fahmy, sued Jay-Z, EMI Publishing, and a host of other parties, claiming that even though Jay-Z had a license to use the song, that license only gave him “economic rights,” i.e., the right to reproduce, perform or distribute the work “without alteration.” Fahmy claimed that because Jay-Z altered “Khosara, Khosara” by sampling and looping parts of it and adding his own lyrics on top of it, the rapper had violated Fahmy's father's “moral rights,” which exist under the Egyptian copyright code.

Similarly to French law ' but unlike U.S. law ' Egyptian copyright law strongly preserves an author's moral rights. Basically, Fahmy argued, if Jay-Z wished to “mutilate” the original song by sampling it, looping it and adding his lyrics, then he needed to get the express permission of each of Hamdy's four children. Jay-Z argued, among other things, that the federal court lacked subject matter jurisdiction over alleged violations of Egyptian “moral rights,” but in an opinion issued on May 2, 2011, U.S. Judge Christina Snyder disagreed. The court ruled that additional fact-finding was necessary on the issue of whether the use of “Khosara, Khosara” was outside the scope of the licenses at issue. The case continues today, with no end in sight. (Justia.com has a page tracking the case.)

The lesson from the Jay-Z case is not simply about a cross-jurisdiction conflict of laws. Whether in the entertainment industry or outside it, arrangements not explicitly addressed in contracts and license agreements can create unwelcome exposure to liability later on. From a practical standpoint, therefore, if an author refuses to explicitly waive their moral rights in connection with a project that a corporation or entity has hired them to perform, that author could in turn create problems in the future by arguing that a change that the licensor or copyright holder may want to make may destroy the work's integrity.

The clear path forward for licensors is to ensure language addressing this potential risk is included in the copyright agreement. Unlike in France, Egypt and other European countries, authors may waive their moral rights in the U.S. if such a waiver is expressed in writing. Such an explicit waiver is now frequently included in such contracts. Corporate licensors of original creative content, then, should require such language whenever possible to maintain flexibility and control over the commissioned work.

Of course, it is possible that an author will steadfastly refuse to waive his or her moral rights. In such circumstances, the best recourse would be to understand the grounds for their objections (which could arise from a previous experience of one or more works having been substantially altered by other producers or publishers). It never hurts for both parties to an agreement to discuss thoroughly what their concerns are; and since an author also has a stake in realizing some commercial benefit from their work, it may be that by revising the agreement to address specifically what the author wishes to protect against, the licensor can convince the author to waive those moral rights. Failing that, the licensor may want to address potential future liability by renegotiating the author's compensation, devising an agreement that protects both of parties' interests.

Conclusion

The entire edifice of intellectual property law has arisen to seek to prevent the commercialization by others of ideas belonging to a creator. Once an avocation of the learned, copying and representing a work without acknowledging its source is not only now generally seen as odious, and may also incur substantial legal risks. Therefore, minimizing copyright liability by ensuring that contracts are comprehensive and explicitly address the rights of both creator and licensor is a valuable risk management exercise for all parties. Eliminating the potential of a moral rights assertion by the creator of a licensed work should be part of that exercise.

Scott J. Slavick is a shareholder at Brinks Hofer Gilson & Lione. His practice focuses primarily on trademark prosecution and trademark litigation, as well as licensing, non-compete agreements, international filing and digital trademark matters. He can be reached at [email protected].

In today's society, copying is ubiquitous. But from the Code of Hammurabi forward, copying has a long and proud history. Before the advent of the printing press, monks would devote their lives to copying manuscripts. Outside abbeys and cloisters, lawyers would copy texts to memorize and share them. Even today, highlighting and copying content to represent it ' in education and in research as in law ' is a valuable and perhaps unavoidable method of learning, sharing, and persuading.

But in today's age of endless content recycling, the provenance of any particular published work can be disguised or ignored as it is churned through multiple media ' including on the Internet in social media. Content farms cycle news endlessly ' sometimes with items even being automatically generated by specially designed computer software. And it goes without saying how much Hollywood loves a recycled idea.

Consequently, it can be difficult for authors and creators to identify and assert their rights in their published works in every circumstance where they might have been licensed or are being used. But for licensors to overlook these rights brings peril. Corporations that are not mindful of the rules or that don't closely enough examine provisions in copyright agreements run risks; and lesser known elements of copyright law present risk also.

Economic and Moral Rights

In copyright law, the creator of a copyrighted work retains certain rights by virtue of his or her role in the development of the work. Those rights can be divided into two distinct ones: economic and moral .

Economic rights allow the work's creator to sell access to the work, or otherwise exploit it for the creator's profit. Moral rights ' a special subset of copyright law often overlooked by lawyers and laymen alike ' allow the creator to control how a creative work is used in non-economic ways. The two major moral rights provided for under the U.S. Copyright Act are the right of attribution, also known as the right of paternity, and the right of integrity. Their application in the U.S. deserves some attention for those who would seek to license and use another's creative content.

The right of attribution provides that no matter who is allowed to exploit the economic rights of a particular copyrighted work (for example, no matter to whom it is licensed), the author still retains the right to be credited as the creator of the copyrighted work. This seems straightforward, and it is largely easy to obey and enforce.

The right of integrity, in contrast, can be difficult to pursue, not least because of the relative laxity of its enforcement in U.S. courts. This right allows the creator of a work to object to and prevent any action that would destroy its integrity. If a creator feels that making certain changes to a work would undermine his or her creative intent or vision, then he or she can prevent that change from being implemented. This right stands independent of any economic rights that another person may own by virtue of a license or ownership of the underlying copyright.

Moral rights come historically from France and are also sometimes referred to as droit morale . In many countries in Europe, it is impossible for an author to transfer his or her moral rights by contract: that is, despite the fact that a licensor of an author's work may have a contract that grants it a copyright license and gives it all forms of right to do whatever it wants to with that work, the author still retains the moral rights listed above (and others, as provided under French law). This means that under current French law, any contract terms contrary to this droit morale are irrelevant; the French court will not enforce a contract if it attempts to take away or undermine an author's moral rights in her or his work.

Moral Rights and Jay-Z

The U.S. takes a very different perspective on moral rights. The U.S. Copyright Act grants moral rights to creators of visual works in 17 U.S.C. '106A, but does not grant moral rights to creators of other types of copyrighted works, such as literary or musical works. And, according to most legal commentators, U.S. law does not accord moral rights much value, and only includes them when under pressure to conform with certain international treaties. A brief search of U.S. case law confirms this skeptical view that moral rights are rarely asserted in the U.S. and often such an assertion is given little weight by a court. Part of the reason for this appears to be that many copyright licenses or copyright assignments contain an explicit waiver of all of the creator's moral rights, even for works (like books) for which U.S. law does not protect moral rights.

What does this mean for today's licensor of copyrighted content? Often, it means frustration. Just ask rapper and music business mogul Shawn Carter ' a.k.a., “Jay-Z” ' about how much fun it is to fight a moral rights case. Carter had a smash hit in 2000 with his single “Big Pimpin'.” The song features a catchy loop of “Khosara, Khosara,” an Egyptian song from the 1960s by Baligh Hamdy. Hamdy's children inherited the song's copyright interests upon the musician's death in 1993; and Jay-Z had licensed it from one of those children. Seven years later, in 2007, another of Hamdy's children, Osama Ahmed Fahmy, sued Jay-Z, EMI Publishing, and a host of other parties, claiming that even though Jay-Z had a license to use the song, that license only gave him “economic rights,” i.e., the right to reproduce, perform or distribute the work “without alteration.” Fahmy claimed that because Jay-Z altered “Khosara, Khosara” by sampling and looping parts of it and adding his own lyrics on top of it, the rapper had violated Fahmy's father's “moral rights,” which exist under the Egyptian copyright code.

Similarly to French law ' but unlike U.S. law ' Egyptian copyright law strongly preserves an author's moral rights. Basically, Fahmy argued, if Jay-Z wished to “mutilate” the original song by sampling it, looping it and adding his lyrics, then he needed to get the express permission of each of Hamdy's four children. Jay-Z argued, among other things, that the federal court lacked subject matter jurisdiction over alleged violations of Egyptian “moral rights,” but in an opinion issued on May 2, 2011, U.S. Judge Christina Snyder disagreed. The court ruled that additional fact-finding was necessary on the issue of whether the use of “Khosara, Khosara” was outside the scope of the licenses at issue. The case continues today, with no end in sight. (Justia.com has a page tracking the case.)

The lesson from the Jay-Z case is not simply about a cross-jurisdiction conflict of laws. Whether in the entertainment industry or outside it, arrangements not explicitly addressed in contracts and license agreements can create unwelcome exposure to liability later on. From a practical standpoint, therefore, if an author refuses to explicitly waive their moral rights in connection with a project that a corporation or entity has hired them to perform, that author could in turn create problems in the future by arguing that a change that the licensor or copyright holder may want to make may destroy the work's integrity.

The clear path forward for licensors is to ensure language addressing this potential risk is included in the copyright agreement. Unlike in France, Egypt and other European countries, authors may waive their moral rights in the U.S. if such a waiver is expressed in writing. Such an explicit waiver is now frequently included in such contracts. Corporate licensors of original creative content, then, should require such language whenever possible to maintain flexibility and control over the commissioned work.

Of course, it is possible that an author will steadfastly refuse to waive his or her moral rights. In such circumstances, the best recourse would be to understand the grounds for their objections (which could arise from a previous experience of one or more works having been substantially altered by other producers or publishers). It never hurts for both parties to an agreement to discuss thoroughly what their concerns are; and since an author also has a stake in realizing some commercial benefit from their work, it may be that by revising the agreement to address specifically what the author wishes to protect against, the licensor can convince the author to waive those moral rights. Failing that, the licensor may want to address potential future liability by renegotiating the author's compensation, devising an agreement that protects both of parties' interests.

Conclusion

The entire edifice of intellectual property law has arisen to seek to prevent the commercialization by others of ideas belonging to a creator. Once an avocation of the learned, copying and representing a work without acknowledging its source is not only now generally seen as odious, and may also incur substantial legal risks. Therefore, minimizing copyright liability by ensuring that contracts are comprehensive and explicitly address the rights of both creator and licensor is a valuable risk management exercise for all parties. Eliminating the potential of a moral rights assertion by the creator of a licensed work should be part of that exercise.

Scott J. Slavick is a shareholder at Brinks Hofer Gilson & Lione. His practice focuses primarily on trademark prosecution and trademark litigation, as well as licensing, non-compete agreements, international filing and digital trademark matters. He can be reached at [email protected].