Copyright/Intellectual Property

Lawyer for Andy Warhol Foundation Says Pop Artist Did Not Copy Photo of Prince

13 June 2019

From ArtNews:

In New York’s Southern District Court on Monday, lawyers for the Andy Warhol Foundation for the Visual Arts and photographer Lynn Goldsmith stood before Judge John G. Koeltl in service of their clients in a case taking up a 1984 series of Warhol screenprints of the storied musician Prince.

. . . .

Goldsmith has alleged that Warhol copied an image she took of Prince in 1981 and, in doing so, violated her copyright. She shot her image of Prince while on assignment for Newsweek, and Warhol used her image for “Prince,” a series of 16 screenprints he made in 1984.

The Warhol Foundation first filed a preemptive motion against Goldsmith’s claim in 2017, alleging then that she was attempting a “shake down.” As the case has continued, the foundation is now demanding a “declaratory judgment” to the effect that Warhol did not infringe upon the photographer’s copyright.

The case takes up complicated issues surrounding art and appropriation. Did Warhol artfully reconstitute Goldsmith’s image, or did he merely copy it? How could one side prove its position either way?

. . . .

Luke Nikas . . . attempted to address such questions. He said that, however similar they might appear, Warhol and Goldsmith’s representations of Prince serve different purposes. “Andy Warhol took images of people, goods, and companies to force us to confront how we consume them,” Nikas said—adding that, as viewers, “we’re not consuming Prince the person or the icon—we’re consuming the image.”

. . . .

Nikas suggested that “Goldsmith conveyed no intent to deal with the same topics as Warhol,” adding that their work was made for “entirely different purposes.” The judge concurred, asserting that if one were to put the two prints next to each other, the “common person would point to one and say, ‘Hey, that’s a Warhol!’ So that is its own work of art.”

Lawyers from both sides debated the “protected elements” of Goldsmith’s photograph—formal aspects of it that involved creative choices, such as lighting, color palette, angle, and cropping. Nikas argued that the Warhol work differed from Goldsmith’s photograph in all these respects. Goldsmith’s lawyer . . . said another protected element ought to be considered—that Warhol’s work did itself appear in Vanity Fair in 1984, meaning that it, too, could have been made for a magazine. Judge Koeltl disagreed with Werbin’s assertion, noting that the Warhol “Prince” works were art objects originally and not intended for editorial use.

Link to the rest at ArtNews

PG will note that he doesn’t think the reporter from ArtNews has spent much time in court prior to this case.

PG interprets the quotes from Judge Koeltl as reflecting that he doesn’t spend much time on cases of interest to anyone beyond police reporters and hopes to become the go-to guy for cases involving famous artists.

Here It Comes

8 June 2019

From Kristine Kathryn Rusch:

[F]or years, I’ve been wondering why big traditional publishing companies aren’t licensing their backlist. There’s a million ways to make money off copyright licenses, and the most obvious is to keep books in print. Yet so many big traditional publishing companies don’t keep their books in print.

Or, worse, in my opinion, those companies don’t publish ebook versions of their catalog. All of their backlist in their catalogs. Realize that this isn’t thousands of titles for them. In the case of some of the larger companies, the title list has to be closer to a million.

But the companies have no idea which books they still can license, whether or not the old contracts have clauses in them that allow ebooks, or even who handles the estate of those old books. I had just read a Daphne Du Maurier novel, My Cousin Rachel,  which had recently been made into a movie, and it took me a lot of scrolling to find that book. I want to read more of her work, but I’m going slowly in ordering it or buying it.

. . . .

We’ve hit the point in the ebook revolution—the online revolution really—where we expect everything (and I do mean everything) to be at our fingertips.

So back to Led Zeppelin. The band is fifty years old this year. And yeah, jeez, that hurts. Because I remember when they were the epitome of cool (and being young and not being understood by the old fogies). Anyway, the folks at Warner Music Group which apparently owns or licensed most of Zeppelin’s catalog, were planning some kind of celebration of the band.

Instead of issuing a retrospective album, they set up a website with a logo name generator. You plug in your name, and it comes up in the Zeppelin iconic font. That’s not the coolest thing about the website, though. The coolest thing is the playlist generator, which allows users to compile their own playlist of Zeppelin songs or covers of Led Zeppelin songs, and then share those playlists on social media.

Think about that for a moment: the website, if set up properly, will help Warner Music Group know what songs from the Led Zeppelin catalog (and related catalogs, like Jack White’s, are the most beloved). That information can be used in marketing later.

This little landing page, with its logo generator and its playlist generator, will then direct users to the Zeppelin website, where you’ll find all the fiftieth anniversary goodies, including the ubiquitous best-of collection and an authorized book about the band.

. . . .

According to Rolling Stone:

The [logo] site received more than 200,000 unique visitors in its first 10 days, with users making 230,000 logos and 20,000 custom playlists. The “biggest uplift” was from White’s playlist, branded as “Led Zeppelin x Jack White,” which drew thousands of users each day — which translates to hundreds of thousands of streams, which translates to a steady stream of cash to Warner and Led Zeppelin without the band lifting a finger.

Hundreds of thousands of streams, “without the band lifting a finger.” Passive income, based on one idea. Yes, streaming services don’t pay a large amount for streams, but they pay. And even a small amount of money adds up when it is multiplied by hundreds of thousands. Not counting the visibility, discoverability, and all those other “abilities” that come from the social media shares, and the links between the various playlist generators. They all play into the streaming services algorithms, which results in even more recognition, and more plays.

Once upon a time (maybe as recently as three years ago) working with what we call the backlist and what the recording industry calls “catalog marketing” was the unlit basement of the industry. No one wanted that job. It wasn’t glamorous, and it barely earned its way.

But that’s changing, and changing rapidly. Apparently, consumers no longer care about the latest and greatest thing. They want what’s new to them. More than that, they want something that they like.

This is where sync marketing comes in. A lot of younger consumers buy music because they heard it on their favorite TV show or in an important scene in a blockbuster movie. From the Rolling Stone article:

Tiffany’s 1987 cover of “I Think We’re Alone Now” has seen 42 percent of its all-time Shazams come after it appeared in Netflix’s 2019 series The Umbrella Academy, and several tracks from the 1940s to 1970s climbed up the company’s global charts after floating into people’s ears from the background of Avengers: Endgame.

. . . .

I’ve noted for years now that traditional publishers have become reluctant to let go of a license once they receive it. In other words, books don’t go out of print anymore, no matter how badly the publisher is mismanaging the book. (In the past, if the book wasn’t in stores, the writer could get her rights back. Not anymore.)

Someone in that megaconglomerate knows that these rights are worth money. They’re worth a lot as assets on a balance sheet, but in the music industry, anyway, they’re also being turned into active revenue streams.

When this starts happening to books—and it will—writers are going to have to be vigilant about their contracts. They’re going to have to see if the contract’s vague 1997 language covers things like streaming rights or omnibus rights or any one of a dozen other ways to license that print book into something new.

What will probably happen is that publishing companies will do what they always do—figure it’s easier to ask forgiveness than it is to ask for permission. They’ll also not want to make payments, so writers are going to have to start auditing their publishers (which no traditionally published writer will do for fear of being blacklisted—because that’s what agents tell them to do. Sigh.

. . . .

So…be warned. Changes are coming, traditionally published writers. Within five years or so, expect a department of back catalog management in your publisher’s offices (if that department doesn’t already exist now). Expect to have every inch of your contract exploited by that department—and maybe some rights you didn’t license as well.

Link to the rest at Kristine Kathryn Rusch

Here’s a link to Kris Rusch’s books. If you like the thoughts Kris shares, you can show your appreciation by checking out her books.

PG says that many authors have so much emotional energy (and more than a bit of insecurity) tied up with their publisher that they desperately want to believe that publisher will always be honest and considerate of their welfare. Unfortunately, such is not always (or even frequently) the case.

Google in Australia: Sudden Conversion or Tactical Manoeuvre?

4 June 2019

From Hugh Stephens Blog:

In news coming out of Australia, it has been reported that Google has voluntarily agreed to de-index several hundred websites that distribute pirated audio-visual content. This will make it more difficult although not impossible for Australian consumers to access these sites. Village Roadshow Chairman Graham Burke, Australia’s most prominent anti-piracy crusader, has been reported as saying, with regard to Google, “We’ve gone from being enemies to being allies”. That’s quite a transformation.

Google has apparently agreed to voluntarily remove from its search engine results any sites that ISPs in Australia are required to block as a result of court orders under relatively new provisions of Australian law.

. . . .

These amendments require internet providers to block websites identified by content owners (and ratified by a court order) that infringe, facilitate infringement or whose primary purpose or effect is infringement. In addition to an expanded requirement for action by internet providers (referred to as Carriage Service Providers in Australia), and new measures to prevent “site-hopping” by pirate sites, the 2018 copyright amendments also required search engines to block or de-index search results for sites subject a court order. Google fought long and hard against that particular amendment, without success.

. . . .

Google . . .  argued that the there was no evidence that the existing law was deficient and claimed its own voluntary takedown process in response to complaints from rights owners was sufficient. This prompted Graham Burke to describe Google’s efforts as a “sham”. Burke’s submission to the legislative review process claimed that; “Their sole interest is using a treasure trove of stolen movies as part of attracting people to a business model that is strengthened by theft…Google auto complete and search are used to steal movies”. Despite opposition from Google and some others, the amendment passed in the Australian Parliament last autumn, with broad bipartisan support.

. . . .

At the same time, in the aftermath to the tragic shootings in Christchurch, New Zealand, in April the Australian Parliament passed (again with bipartisan support) robust legislation holding the executives of social media platforms, including Google-owned YouTube, criminally responsible (and the companies corporately responsible), if violent material is not removed expeditiously after notification by authorities.

. . . .

The ubiquity of the Google and Facebook platforms and the lack of transparency of the operation of these platforms, have had adverse effects on news publishers and their opportunities to monetise their content”.

. . . .

This is relevant given Google’s experience in Canada in the landmark Google v. Equustek case. In that case . . . Google was required by the British Columbia Supreme Court to de-index search results for a competitor of Equustek (a Canadian company manufacturing internet routers) found to have stolen Equustek’s intellectual property in order to market online clones of Equustek’s products. Google agreed to de-index results for its Canadian site,, but refused a blanket delisting on and its other national sites as ordered by the court, and appealed. The BC Court of Appeal upheld the global de-indexing order. Google then appealed to the Supreme Court of Canada and lost. It then resorted to a series of legal actions in the US designed to invalidate the order and then have it varied in Canada pursuant to a California court order. These tactics failed (although Google was able to get an unopposed order in California that the Canadian Supreme Court order could not be enforced in the US), but they demonstrate the lengths that Google will go to in order to retain its ability to do what it wants in the way that it wants.

Link to the rest at Hugh Stephens Blog

These Trump Socks Went Viral—and a Nightmare on Amazon Began

2 June 2019

From Wired:

When Donald Trump visited Louisiana earlier this month, he was greeted with an unexpected hairy surprise. Billy Nungesser, the state’s lieutenant governor, got dressed with the commander-in-chief in mind that morning. With the president and news cameras as his witness at the airport, Nungesser joyfully lifted the leg of his pants to reveal a goofy pair of socks: Each ankle bore Trump’s face, complete with a signature tuft of fake blond locks waving daintily in the breeze. The bizarre-looking socks quickly went viral and were covered by a smattering of news outlets. Stephen Colbert even mentioned them on The Late Show.

For Erica Easley, all the attention was great, at least at first. Easley is the founder of Gumball Poodle, a small Los Angeles–based sock company that originally came up with the hirsute design during the last presidential election. “They went really viral, beyond anything we’d ever experienced before,” she says about the aftermath of Nungesser’s photo-op. “And these socks have been on Rachel Maddow, The View, a bunch of things in 2016.” Wholesale orders started ticking up. Several media outlets linked to Gumball Poodle’s Amazon listing, and soon the Trump socks reached Amazon’s best-seller list for men’s novelty socks.

About a week passed before Easley noticed that something had gone horribly wrong. Dozens of third-party merchants, most of whom looked to be from China, had jammed her Amazon listing with what Easley believed to be knockoffs, selling for a fraction of the original $30 price tag. (Included in that price, for the record, is a tiny comb, to style your socks’ hair. Everything is made in the USA.) To make matters worse, Amazon had chosen one of the frauds as the default seller, shutting Gumball Poodle out. Meanwhile, other third-party sellers appeared to have taken Easley’s photos and set up their own, much cheaper listings.

Easley had done everything to protect her business from exactly this kind of attack. Her hairy sock design is patented in the US, and her logo, which is stamped on the bottom of the socks, is trademarked. What’s more, Gumball Poodle is enrolled in the Amazon Brand Registry, an enhanced suite of tools the company provides eligible brands to protect their intellectual property. But Easley found Amazon’s protections weren’t enough, and she says the company largely ignored her pleas for help. Only after WIRED reached out to Amazon for this story were the counterfeits removed.

. . . .

Gumball Poodle isn’t alone. “There are thousands of other trademark owners who face the same kind of nonsense every single day,” says James Thomson, a former Amazon employee and a partner at Buy Box Experts, a firm that consults with Amazon sellers. “Amazon does have a problem with counterfeits.”

Counterfeiting is a booming, trillion-dollar industry that costs businesses around the world billions of dollars a year. Its growth has been fueled by the rise of ecommerce, which a government report says has led to “a fundamental change in the market for counterfeit goods.” That report, published last year by the Government Accountability Office, found that the volume and variety of counterfeit goods seized by officials has grown year after year, and it’s increasingly difficult to distinguish knockoffs from the real thing. It also notes that fraudulent goods are sold on a number of different ecommerce platforms.

. . . .

But on Amazon, counterfeits can be uniquely devastating, in part because of the site’s sheer scale. Half of all US ecommerce sales go to Amazon, and the site is also where about half of all product searches on the web begin. Not many companies can afford to avoid it. If they do stay away, they risk letting other sellers determine how their brand is marketed on one of the biggest online retailers in the world.

Another problem is the way Amazon is designed. Unlike on eBay, Etsy, or other online marketplaces, a single Amazon product listing can feature offers from dozens of independent sellers. The company uses an algorithm to decide which merchant’s goods should be the default, based on factors like price and shipping speed. Winning the default slot, referred to as the “Buy Box,” gives sellers an enormous advantage. Customers can “Add to Cart” or “Buy Now” their products with a single click, while the losers are hidden behind a dropdown menu. The idea is to allow consumers to quickly make a purchase, without needing to sift through every similar option. But the system, experts say, also makes sneaking counterfeits into the hands of consumers easy.

Link to the rest at Wired

Artist Agrees to Modify Controversial Mural

31 May 2019

From ArtForum:

Following backlash from community groups, Brooklyn artist Beau Stanton has offered to make changes to the mural of American actress Ava Gardner he painted on the Robert F. Kennedy Community Schools complex two years ago. The work, which features a profile of Gardner’s bust overlaid with palm trees and set against a blue-and-orange backdrop that evokes the rays of the sun, drew criticism from Korean Americans and the Wilshire Community Coalition, who claim that the rays are too similar to Japan’s Rising Sun flag, which is viewed as a symbol of the war crimes the Japanese military committed during World War II.

After numerous arts professionals of the Korea diaspora called for the work to be removed or altered . . . the Los Angeles Unified School District . . . announced it would paint over the mural in December 2018. The move sparked an outcry from artists and Los Angeles residents who don’t have objections to the piece and led to a debate about censorship. Those who came to the mural’s defense include Shepard Fairey, who claimed he would remove his own mural from the campus if the school destroyed Stanton’s.

On Wednesday, Stanton revealed that he agreed to modify the piece. “These interactions have allowed me to synthesize a solution that aims to rise above the original binary conversation of ‘keep or remove the mural’ in order to build upon the original work and create something that speaks to the past, present, and future of the RFK campus,” he told the Los Angeles Times. The compromise allows the artist to revisit his vision for the work while he makes changes in order to be sensitive to the activists who find it offensive.

The district has allotted around $20,000 to fund the additional work on the piece.

Link to the rest at ArtForum

Here’s a photo of the mural in question that also shows parts of the school that are not included in the mural:


As mentioned in the OP, the school where the mural was painted is named after Robert F. Kennedy, who was assassinated at this location, formerly the site of The Ambassador Hotel. Kennedy was shot and killed in the kitchen of the hotel in 1968. The hotel was closed in 1989 and demolished in 2005-2006 after its purchase by the School District.

Here’s more from the Los Angeles Times:

Earlier this month, L.A. Unified announced its decision to paint over the mural after the Korean group pronounced the background as offensive as a swastika and threatened legal action.

The mural’s artist, Beau Stanton, has denied any connection between his artwork and the battle flag. The rays on the flag differ in number, thickness and color.

The leader of the Korean group, Chan Yong “Jake” Jeong, said he does not challenge Stanton’s good intentions, but his group still wants the mural gone.

. . . .

“As a result of the extensive input, there is a need to have additional conversation,” Eugene Hernandez, administrator of operations for that part of the school system, said Monday. “Therefore, we will not be taking immediate action on the mural at this time.”

Last week, Hernandez defended painting over the mural, saying that schools belong to the community, which should be able to determine whether such works are appropriate.

But since then district officials have heard from a wider swath of community. Some teachers at RFK have stepped forward to say that the views of faculty and students were never considered.

. . . .

“My father was sympathetic to cultural sensitivities,” [Robert F.] Kennedy said. “But he understood that the central bedrock tenets of American democracy are freedom of speech and expression. As fiercely as they supported tolerance, and diversity, my father and my uncle loathed censorship. . . .

“My father and uncles considered people who destroyed art in the service of political agendas as the worst sort of scoundrels,” he wrote. “There is so much reprehensible and irrational about this scheme that one could write a thesis enumerating the idiotic flaws that catacomb the shallow arguments in its favor.”

. . . .

The district possibly has another problem related to the mural. As of midday, officials had been unable to locate releases from the artists.

It is district policy to obtain such releases, which give L.A. Unified full control over the artwork, General Counsel David Holmquist said. If the district cannot find such paperwork, its options may be more limited.

Even if releases are located, he said, the district will want to give serious consideration to the wishes of the artists.

Stanton said Monday that his attorney has contacted the district, threatening legal action if it proceeded with the plan to paint over the mural.

“We wanted to stay the decision until the other stakeholders had a chance to speak their minds,” he said.

Link to the rest at the Los Angeles Times

PG has written previously about Moral Rights of artists and authors.

The mural described in the OP would seem to be a candidate for protection under The Visual Artists Rights Act of 1990 (VARA), a narrow protection of moral rights for visual artists only.

Prior artists’ victories under VARA have included several suits for damaging graffiti placed on urban buildings in the US.

However, one of the earlier higher profile moral rights lawsuits was over a six-story Los Angeles mural painted on the side of a building owned by the US government. That case resulted in a $1.1 million judgment in favor of the artist.

Under VARA, an artist may waive moral rights, but, according to the OP, apparently there was no waiver with respect to the mural that was almost painted over by the school district.

PG will also note that World War II ended with the defeat of Japan 74 years ago.

The International Military Tribunal for the Far East was convened from 1946-48 to try Japanese war crimes committed during World War II.

Twenty-nine Japanese military and political leaders were charged with 55 separate counts encompassing the waging of aggressive war, murder and conventional war crimes committed against prisoners-of-war, civilian internees and the inhabitants of occupied territories. The defendants included former prime ministers, former foreign ministers and former military commanders.

The indictment accused the defendants of promoting a scheme of conquest that “contemplated and carried out … murdering, maiming and ill-treating prisoners of war (and) civilian internees … forcing them to labor under inhumane conditions … plundering public and private property, wantonly destroying cities, towns and villages beyond any justification of military necessity; (perpetrating) mass murder, rape, pillage, brigandage, torture and other barbaric cruelties upon the helpless civilian population of the over-run countries.”

All defendants who were tried were convicted of war crimes and received sentences ranging from seven years’ imprisonment to execution. Two defendants died prior to the end of their trials and one was found unfit to stand trial.

See Wikipedia for more information on Japanese war crimes trials.


Google and Oracle’s $9 Billion ‘Copyright Case of the Decade’ Could Be Headed for the Supreme Court

31 May 2019

From Newsweek:

Google calls it the “copyright case of the decade.”

“It” is the $9 billion copyright infringement suit Oracle filed against the search giant nearly 10 years ago. Oracle brought the case in 2010 after Google incorporated 11,500 lines of Oracle’s Java code into Google’s Android platform for smartphones and tablets. Android has since become the world’s most popular operating system, running on more than 2.5 billion devices.

Google won twice at the U.S. District Court level. But each time, a federal appeals court overturned the verdict, ruling for Oracle. Now, Google is begging the Supreme Court to hear the case, and so are the 175 companies, nonprofits and individuals who have signed 15 friend-of-the-court briefs supporting Google’s plea.

. . . .

Here’s the pressing issue: How much protection do copyright laws give to application program interfaces, or APIs? That might sound arcane, but these interfaces are omnipresent in software today. They form the junctions between all the different software applications developed by various companies and independent developers that must seamlessly interact to work right.

All the apps that sit on our smartphones—like Pandora or Uber—use interfaces to communicate with our phones’ operating systems (Apple iOS for iPhones, for example). If the owner of a platform can claim, through copyright, to own those interfaces, it can limit innovation and competition, Google contends. Not only can it determine who gets to write software on its own platform, but, as we’ll see, it may even be able to prevent rival platforms from ever being written. The Harvard Journal of Law and Technology considers the case so consequential that it devoted an entire 360-page “special issue” to it last year.

“If the appeals court’s rulings stand, it’s likely to lead to entrenching dominant firms in software industries,” says Randy Stutz, an attorney with the American Antitrust Institute, which supports Google in the dispute.

Oracle, on the other hand, says the case is cut-and-dried. Its basic argument: Google negotiated to take a license for the Java code, it wasn’t able to reach terms, and then it used portions of the code anyway. (And that’s all true.) Now, it’s time to pay the piper.

. . . .

“Before Android,” Oracle’s lawyers write in their brief to the Supreme Court, “every company that wanted to use the Java platform took a commercial license…including smartphone manufacturers BlackBerry, Nokia and Danger.”

Oracle claims that, if not for Android, Oracle’s own Java software could have become a major smartphone platform. (Although Java was written by Sun Microsystems, Oracle acquired Sun in 2010, shortly before bringing this suit.) Oracle’s lawyers mock the notion that the rulings in its favor will spawn any dire consequences. Despite Google’s “sky-is-falling” arguments, they write, the software industry did not crash in the wake of May 2014 or March 2018, when the U.S. Court of Appeals for the Federal Circuit issued the two key rulings that Google seeks to reverse.

In fact, Oracle has enjoyed fervent support from its own friend-of-the-court briefs, including one from BSA, the Software Alliance, which counts companies like Adobe, Apple and IBM among its members.

Remarkably, for a case about software interfaces, the key Supreme Court precedent was decided in 1879. Obviously, that suit didn’t involve a smartphone platform, but it did define the limits of copyright and explain how a copyright differs from a patent. In that dispute, Charles Selden had authored and copyrighted a book laying out a method of bookkeeping. The book included some blank forms that could be used to implement the system. Later, W.C.M. Baker began marketing his own set of forms to implement Selden’s method that were very similar to those in Selden’s book.

Selden’s widow sued Baker for copyright infringement—and lost. Basically, Justice Joseph Bradley explained in the opinion, she was trying to use copyright to protect the ideas contained in Selden’s book. He explained that, while a patent can protect an idea, a copyright protects only expression—in this case, the particular words Selden used to describe his bookkeeping method. “The copyright…cannot give to the author an exclusive right to the methods of operation which he propounds,” the Supreme Court’s decision said. (Selden had not patented his bookkeeping method.) Since Selden had no monopoly on his method, he had no monopoly on the forms needed to carry out that method.

Congress later wrote the Court’s Baker v. Selden ruling into the federal copyright statute, specifying that a copyright cannot “extend to any idea, procedure, process, system, [or] method of operation,” even if that idea is “described” in copyrighted work.

Link to the rest at Newsweek

Moral Rights

25 May 2019

In PG’s experience, most authors in the U.S. aren’t familiar with moral rights. In part, this is because the federal government did not do much about moral rights until 1989.

When the country joined the Berne Convention in 1989, it amended its Copyright Act to include moral rights. However, while the moral rights set out in Berne are intended to apply to all types of copyright-protected works, the U.S. took a narrower interpretation of the moral rights requirements, stipulating that the Convention’s “moral rights” provisions were addressed sufficiently by other statutes, such as laws covering slander and libel. Some international copyright experts contend that the U.S. is not, in fact, complying with its Berne obligations.

Some state legislatures have enacted state moral rights laws, but there is more than a little doubt about whether such laws can be enforced because federal IP laws preempt state IP legislation.

However, in the ever-so-slow manner in which intellectual property laws are changed in the United States, moral rights may be on the path to more structured protection.

From a recently-released study of moral rights by the U.S. Register of Copyrights (footnotes omitted):

Taken from the French phrase droit moral, the term “moral rights” generally refers to
certain non-economic rights that are considered personal to an author. Central to the idea of
moral rights is the idea that a creative work, such as a song or book, actually expresses the
personality of the author.

Society has long recognized the importance of such a bond between a creative work and its author: as far back as the early 1500s, courts in France recognized that only the author has a right to publish their work. Over the course of the last two centuries, countries have increasingly codified this close connection between the author and their work, first through judicial doctrines and limited statutory protections for certain aspects of moral rights, such as a right of first publication, and later through formalized statutory moral rights schemes. While countries have come to recognize a variety of different moral rights, the two most commonly recognized moral rights are the right of an author to be credited as the author of their work (the right of attribution), and the right of an author to prevent prejudicial distortions of their work (the right of integrity), both of which were codified at the international level in the 1928 Rome revision of the Berne Convention.It was not until 1989, however, that the United States became subject to an obligation to provide moral rights protections for authors by joining the Berne Convention.

. . . .

[T]he growth of the internet as the primary locus for buying, selling, and licensing works of authorship has meant that original works in digital form have become more accessible to more people. On the one hand, this has meant that the attribution and integrity of works have been more susceptible to mishandling and manipulation. For example, the metadata containing attribution and other information for creative works is very simple to remove (or “strip”) or replace with erroneous information. A work stripped of proper identifying information then can be disseminated widely to the detriment of both the author’s reputation and ability to profit from the work. Similarly, the increasingly accessible video editing technology behind “deepfake” software can not only fundamentally alter the content of an author’s work, but can also lead to social and moral harm for the artists and the subject of the video through malicious use. On the other hand, digital technologies such as fingerprinting and visual recognition software that allow photographers to identify and track metadata related to their works on the internet have enabled authors to combat some of these threats to their attribution and integrity interests. Whether considered as a useful tool or a threat to protection of integrity and attribution interests, there is no question that technology has transformed the moral rights landscape in the United States.

As the foregoing indicates, there is a significant amount of variation in how moral rights are recognized around the world, as well as the manner in which they are protected. For example, in addition to the rights of attribution and integrity, other countries have recognized a number of additional moral rights, some of which are counterparts to economic rights, including:

  • the right of withdrawal, or droit de repentir, which allows authors to retract works from public circulation that they feel no longer represent them or their views;
  • the right of divulgation, through which an author can control the public disclosure of their work, and which supports the economic right of first publication;
  • the right of the author to have access to the original copy of a work in order to “exercise his author’s rights”;
  • the right to prevent others from associating one’s work with an undesirable “product, service, cause or institution”;
  • the right to pseudonymity; and
  • the right of an author to compel the completion of a commissioned work of art.

Additionally, not all countries protect the rights of attribution and integrity in the same manner, and many countries have laws protecting discrete aspects of those rights using different terminology. As many scholars have noted, civil law and common law countries historically took different approaches to the protection of authors’ moral rights: while many civil law countries conceived of moral rights as separate and distinct from an author’s economic rights, common law countries tended to conceive of moral rights as part and parcel of the general copyright protections afforded to an author. Although the Berne Convention largely adopted the civil law approach, conceptualizing moral rights as separate from economic rights, member states have wide discretion in how they chose to implement the moral rights protections of Article 6. For this reason, the contours of the rights of attribution and integrity look quite different, depending upon the country.

One area in which there is significant variance among countries is in how they approach the concepts of waivability and alienability of moral rights. While moral rights are often described as “inalienable,” “nonwaivable,” or in other terms that express the inherent relationship between author and work, moral rights are in fact often waivable and sometimes also alienable under many countries’ moral rights schemes. In some countries like Canada, waivability is explicitly spelled out in the statute. Elsewhere, it is inferred by the ability of authors to authorize certain uses of their works, such as in Nigeria, Germany, France, China, and Switzerland. This ability to waive moral rights is generally tempered by limits designed to protect authors from unwittingly or unwillingly waiving their rights.

Another area of variation in international approaches to moral rights has to do with how the country’s laws treat situations where a work is “authored” by a corporation or has many “authors” that all contribute a small piece to a larger whole  In some countries that have adopted copyright ownership rules similar to the work-for-hire doctrine in the United States, corporations are allowed to hold and assert moral rights in such works. For example, South Korea, Japan, and China all designate employers as the default legal author of works created by employees, including for some moral rights purposes, although they allow the parties to contract around this default.  Indian courts have also recognized moral rights for corporations. In contrast, under both Swiss and French law, moral rights can attach only to natural authors and not corporate entities; employees may maintain or waive their rights, but employing companies cannot hold them. Several countries, including France and Israel, require that moral rights remain with the natural author even when the law or a contract transfers economic rights away. Countries have also adopted different approaches regarding how to address potential conflicts that may arise resulting from the grant of moral rights to different contributors. For example, Guatemalan authors contributing to newspapers do not have control of their contributions when combined in a newspaper, but they do have rights in their works when those works stand alone.

The question of moral rights protection for multi-author works has been particularly acute in the area of audiovisual works. Some countries have adopted special rules for moral rights in these works, attempting to balance the interests of the producer, the director, individual performers, and the authors of incorporated works such as musical scores. For example, while China recognizes motion pictures as collaborative works with several individual authors, the various authors are only granted the right of authorship while all other copyrights belong to the producer.  While Guatemala grants moral rights to the producer (who is also holder of the economic rights), this right includes mandatory attribution for the director, the script author, the author of any underlying work, and the authors of the musical compositions in the audiovisual work. In Nigeria, which also grants moral rights to the producer, the law is designed to encourage performers and others involved in films to execute contracts with the producer in order to preserve any of their rights. Performers in audiovisual works in France are considered employees, and thus their rights of attribution and integrity are governed not only by the moral rights regime, but also by employment law regulations and collective bargaining agreements. In Germany, although moral rights attach to both filmmakers and performers, a rightsholder may only prohibit gross distortions of their work and their interests must be balanced with the legitimate interests of the other film creators and the producer.

Link to the rest at

PG says if you have gotten this far, you know more about moral rights than 99.99% of the authors in the United States. He cannot confidently provide any sort of estimate for authors outside of the United States.

U. S. Copyright Office Considers a Federal Right of Publicity

24 May 2019

From Rothman’s Roadmap to The Right of Publicity:

In a report issued on April 23rd by the Register of Copyrights, the U.S. Copyright Office suggests that the lack of uniformity in state right of publicity laws may require Congressional intervention.

The call for Congress to consider such a right arose in the course of a 107-page report issued by the office on the status of moral rights in the United States. The focus of the report is on moral rights for authors, rather than on personality rights more generally. The report, titled Authors, Attribution, and Integrity: Examining Moral Rights in the United States, primarily focuses on the international treatment of moral rights, and the federal regime in the United States, particularly under the Copyright Act (including the Visual Artists Rights Act (VARA)) and the Lanham Act.

The report focuses on “the rights of attribution (the right to be credited as the author of one’s work) and of integrity (the right to prevent prejudicial distortions of one’s work).” As part of this inquiry, the report identifies various state laws that potentially serve to protect the moral rights of authors and performers.

. . . .

The inclusion of state privacy and publicity laws in the report is solely focused on how these laws can help authors (and performers) protect their moral rights. In particular, the report notes that these laws can provide claims against misattribution, and when a performance is usurped without permission.

. . . .

The report importantly highlights the current chaos in right of publicity laws. The report notes that the “appearance of near-uniformity in adoption of some version of the right of publicity belies the degree to which the exact contours of the right differ significantly from jurisdiction to jurisdiction.” Because of this lack of uniformity, the report suggests that federal intervention may be advisable, albeit with some ambivalence: “If Congress wished to address some of the uncertainty and ambiguity created by the lack of harmonization among state right of publicity laws, Congress might consider adopting a federal right of publicity law.”

. . . .

The report also wisely highlights potential pitfalls of any federal right of publicity law. The report points to the need to determine whether the right should be transferable and under what conditions. I have strongly advocated against making the right transferable, at least when such alienability is unfettered. Allowing the right of publicity to be owned by anyone other than the underlying person jeopardizes our ability to maintain ownership of our own names, likenesses, and voices.

. . . .

Further on in the report, the Copyright Office notes the substantial debate on whether moral rights should be waivable or alienable, observing that when such waivers and transfers are allowed they often become standard. Such a result undercuts the provision of moral rights protections in the first place. This concern is true in the extreme when it comes to allowing transfers of rights of publicity, because what is being transferred are not rights over an external work, but rights to one’s own personal identity.

Another concern with regard to drafting a federal version of the right of publicity is also one that I have raised: quoting from my book, the report notes that providing a postmortem right of publicity raises taxation issues, and could “force heirs to commercialize the deceased person’s identity to pay off [estate tax] debt.”

Link to the rest at Rothman’s Roadmap to The Right of Publicity

The first section of the Copyright Office Report (after the Executive Summary) is a quick overview of the Right of Publicity, however, if you want more of an introduction, the Rothman’s Roadmap site is a good place to start.

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