On April 23rd, the US Copyright Office released its report on Moral Rights (including how they might interact with the right of publicity), wrapping up several years of study and public comment. A week later (May 1), bills taking up the CASE Act — the Copyright Alternative in Small-Claims Enforcement Act of 2019 — were reintroduced in the House and Senate, having died in committee in the previous Congress. Clearly, were either of these proposals enacted, copyright law and practice would have to change to a significant degree. Thus, now seems like a good time to take a brief look at the proposals, as Congress and the interested public set down to consider the public policy benefits of each.
Moral Rights? What are Those?
The phrase “moral rights” has an odd ring to it, to US ears at least. It sounds like it might refer to a subtopic from a college course in Kantean ethics, alongside his Categorical Imperative. But it is, in fact, a well-known jargon term used in international copyright law.
“Moral rights” are best understood as a special class of rights recognized under the Berne Convention (the main international treaty relating to copyright) and in those countries which have implemented its provisions for these sorts of rights.
“Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
– Berne Convention for the Protection of Literary and Artistic Works (Paris 1971, as amended), Article 6bis, section (1) (reflecting similar provisions in earlier versions of the Convention going back to 1886)
In the US’s implementation of this part of the Berne Convention, moral rights to an author’s or artist’s creative output (as distinct from the economic rights entailed in them) are given little prominence, with the government long taking the position that other provisions of U.S. law (particularly under the Lanham Act relating to trademarks and unfair competition) adequately protect creators’ moral rights without need for an explicit provision. At the federal level, they weren’t specifically referenced at all until after 1989, when Congress, at the urging of groups representing creators working in the visual arts, passed the Visual Artists Rights Act (VARA), which implemented the Berne-based rights for one category of works. Just a few years ago, there was a prominent dispute involving these very rights under VARA: the 5Pointz case.
Specifically, what are these moral rights? Briefly, they include (but in some countries are not limited to):
- The right of attribution. You wrote it, composed it, painted it. You have the right to keep your name on it. You may also have the right to insist that your name be taken off of it. This is about the association of you (the creator) with your work, and it just makes intuitive sense. You should be able to claim authorship of works which you, in fact, authored and to prevent any attribution of authorship of works which you did not author.
- The right against mutilation. Logically deriving from the right of attribution, under a moral rights regime the creator can often prevent use of her name on any version of the work that has, in that person’s view, been distorted, mutilated, or modified in a way that would be prejudicial to her reputation.
- Moral rights are considered separate from economic rights. Which is to say, the creator may sell all rights to financially exploit the work to another person (an economic right) but, at least in Europe and under VARA, cannot alienate her moral rights. As an aside, I’m not sure how that would work for, say, ghostwritten works in the U.S. (and other countries have handled the issue differently).
New Right of Publicity?
The “right of publicity”(sometimes referred to as a ‘personality right’) created under many U.S. states’ laws is usually categorized as one of the ancillary rights surrounding copyright and its IP cousin, trademark. One source offers: “The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona . . . .” In essence, it is a negative right against (commercial) misappropriation of one’s identity by other parties. It is not the same as a trademark right, although the concepts are understandably often confused or conflated.
The Copyright Office Moral Rights Report includes a recommendation for a new federal law to, in effect, put a floor (i.e., establish a minimum) under these state publicity laws —without pre-empting them. It also includes suggestions for tweaks to VARA, and other small adjustments to Copyright Office practices in this context. But the lede here really is about the call for new right of publicity legislation.
Some scholars, including Jennifer Rothman and Roberta Kwall, have studied US right of publicity questions extensively. As with other aspects of rights closely associated with copyright, protection of individuals’ rights of publicity sometimes bumps up against freedom of speech implications. Recently, Olivia de Havilland – she of The Adventures of Robin Hood (1939) and Gone With the Wind (1939) fame — brought a case under California law alleging violations of her rights of publicity.
A Small Claims Option in Copyright Disputes?
Photographers especially (but other self-employed creators too) have long sought a better means of addressing misuse and misappropriation of their works, and many find the existing rules for bringing a copyright infringement suit to be inadequate —and too costly. One means of addressing this issue would be to implement an alternative, lower-cost process. Thus, the impetus behind the Copyright Alternative in Small-Claims Enforcement Act (CASE) as introduced in Congress in 2017, and again last month.
Small claims processes are familiar to many small business owners, who sometimes are stiffed by their clients on services rendered or costs incurred. The notion of a facilitated hearing before a judge or a magistrate which avoids the cost of engaging a lawyer, goes back many years in American law. A second form of expedited, low-cost means of resolving disputes is known as Alternative Dispute Resolution, or ADR. Essentially, the CASE Act envisions a process that somewhat blends ideas from both of these methods.
Over at the PatentlyO blog, Dennis Crouch has summarized CASE’s provisions: “The statute calls for creation of a “Copyright Claims Board” empowered to decide infringement cases with a limit of $30,000 damage award per case and no injunction (except to enforce a settlement agreement) and no attorney fees (except for bad faith conduct). Although the Board will be based in DC, hearings will be via the internet with very limited procedural requirements.”
Currently lined up in favor of this bill are such groups as American Photographic Artists, the National Press Photographers Association, and the Press Photographers of America. On the other hand, Public Knowledge and the EFF have voiced their concerns with the provisions of this bill. In a public comment back in 2012, Google raised some issues it saw with the small claims approach. This may be one of those issues where there are actually valid points to be addressed on both sides, hopefully before the Act is finalized and decided upon.
So What Happens Next?
The Moral Rights report from the Copyright Office is just that, a report. It may be months before any sort of implementing legislation for it is drafted and submitted. The CASE Act, on the other hand, was introduced with bi-partisan sponsorship in both houses of Congress and may well proceed through the legislative meat-grinder at a pretty good pace.
In the US and many other countries, the circumstance of a Work-Made-For-Hire would mitigate this.