They always talk handsomely about the literature of the
land, always what a fine, great, monumental thing a great literature is,
and in the midst of their enthusiasm they turn around and do what they
can to discourage it.
In 1882, Samuel Clemens sued publisher Belford, Clarke & Co. for reprinting
an unauthorized collection of his works. Clemens objected to the use of
his nom de plume, Mark Twain. In part, the bill of complaint stated: "And
your orator has by the said wrongful acts of the defendants been greatly
injured, and his property in his said nom de plume or trade-name
of 'Mark Twain,' as a commercial designation of authorship, has been deteriorated
and lessened in value; and your orator is remediless, and can only have
relief in the premisesin a court of equity, wherein such matters are properly
cognizable" (Samuel L. Clemens v. Belford, Clarke & Company;
—Samuel Clemens, speech in Congress, 1906
The court ruled against Clemens, mainly because he had not copyrighted
Literary productions, published without being secured to the author
by copyright, become public property and may be republished by any one,
and the person making such republication has the right to give the name
of the author.
The use of a nom de plume or assumed name by an author, does
not entitle him to protect his writings published under such assumed name
without copyright to any greater or different extent than if published
under his Christian or baptismal name.
Trade marks only protect vendible merchandise, and can not be applied
to or protect literary property.
An author has a right to restrain the publication of any of his literary
work which he has never published or given to the public, but the publication
of literary matter without copyright is a dedication of such matter to
the public (http://www.twainquotes.com/CourtDecision.html).
Clemens' lawsuit was filed years before the moral rights clause that
protects authors' and artists' personal, noneconomic rights and reputations
became part of The Rome Act of 1928 (a predecessor of the Berne Convention,
which recognizes international copyright protection for works created by
member nations). In light of the Tasini ruling, I've been wondering
if the next step for authors of literary works is to advocate the passage
of moral rights legislation in the U.S.
The Origin of Moral Rights
"Moral rights" is the English translation of the French phrase droit
moral. Moral rights differ from copyright. Copyright protects property
rights, which entitles authors to publish and economically benefit from
their published works. Moral rights safeguard personal and reputational
rights, which permit authors to defend both the integrity of their works
and the use of their names. In countries that legally recognize moral rights,
authors have redress to protect any distortion, misrepresentation, or interference
of their works that could negatively affect their honor. Moral rights are
often described as "inalienable." French law recognizes perpetual moral
rights. In Germany, moral rights end when the author's copyright expires
(70 years after he or she dies), while in other countries, moral rights
terminate with the author's death.
For a span of years, various authors and artists have filed lawsuits
regarding the use of their works or, in the case of Samuel Clemens, the
use of their names on works they did not authorize. The first legal international
treaty to recognize the concept of moral rights was The Rome Act of 1928.
Article 6bis of the current Berne Convention treaty includes a moral rights
clause that protects authors' rights to decide whether and when to publish
works, claims of authorship after the work is published, and preservation
of the works' integrity:
(1) 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.
(2) The rights granted to the author in accordance with the preceding
paragraph shall, after his death, be maintained, at least until the expiry
of the economic rights, and shall be exercisable by the persons or institutions
authorized by the legislation of the country where protection is claimed.
However, those countries whose legislation, at the moment of their ratification
of or accession to this Act, does not provide for the protection after
the death of the author of all the rights set out in the preceding paragraph
may provide that some of these rights may, after his death, cease to be
(3) The means of redress for safeguarding the rights granted by this
Article shall be governed by the legislation of the country where protection
is claimed (http://www.wipo.org/treaties/ip/berne/berne01.html).
Moral Rights in the U.S.
The U.S. resisted joining the Berne Convention for over 100 years,
mainly because it needed to significantly revise its copyright law to become
more harmonious with the treaty. One major issue for the U.S. was its lack
of willingness to accept copyright protection on unregistered works and
works without copyright notices. When the U.S. finally joined the Berne
Convention in 1989, Congress had enacted legislation to protect authors'
copyrights regardless of whether or not they had registered their works
or placed copyright notices within their publications.
A secondary concern for the U.S., but one without much press coverage,
was the moral rights issue. Although the U.S. has not enacted moral rights
legislation for literary or digital works, various national and state laws
regarding copyright, libel, defamation, misrepresentation, trademarks,
and unfair competition (the Lantham Act) seemed to satisfy the Berne Convention's
requirements, thus allowing the U.S. to become a signatory.
Soon after the U.S. joined the Berne Convention, the concept of moral
rights gainedpopularity within the visual arts community. The following
year, Congress signed into law the Visual Artists Rights Act of 1990 (VARA).
Under VARA, authors of visual works (paintings, drawings, sculptures, photographs,
prints) are granted two rights: the right of attribution and the right
The right of attribution allows an author "to claim authorship ...,
to prevent the use of his or her name as the author of any work of visual
art which he or she did not create, [and] to prevent the use of his or
her name as the author of the work of visual art in the event of a distortion,
mutilation, or other modification of the work which would be prejudicial
to his or her honor or reputation." The right of integrity permits an author
"to prevent any intentional distortion, mutilation, or other modification
of that work which would be prejudicial to his or her honor or reputation
[and] to prevent any destruction of a work ofrecognized stature" (http://www.loc.gov/copyright/title17/circ92.html#106a).
Both rights last for the author's lifetime—i.e., they are not transferred
to heirs, as in the case of copyrighted works.
In 1996, the U.S. Copyright Office issued a report about the effects
ofVARA. Six years earlier, when Congress had passed the VARA legislation,
there was concern about whether or not artists would waive their moral
rights by signing contractual agreements with the buyers of their works.
A survey was sent to 6,800 artists, artists' representatives, art students,
and art-relatedorganizations. More than 1,000 surveys werereturned to the
Copyright Office. The results "reflected a low level of artist awareness
about VARA, particularly by those earning less than $10,000 annually from
the sale of their art, and those not represented by an agent or gallery."
The Copyright Office recommended onemodification to VARA. Since "VARA
inappropriately permits one artist to waive the moral rights of the other
artists in a jointwork," the Registrar of Copyrights suggested that "Congress
may wish to amend the statute to provide that no joint artist may waive
another's statutory moral rights without the written consent of each joint
artist whose rights would be affected" (http://www.loc.gov/today/pr/1996/96-045).
To date, Congress has not amended the statute, and the clause regarding
joint works remains in the copyright legislation: "In the case of a joint
work prepared by two or more authors, a waiver of rights under this paragraph
made by one such author waives such rights for all such authors."
Although literary and digital moral rights are widely recognized in
Europe, they continue to be limited in scope within the U.S. Some countries
have enacted national laws to expand moral rights as outlined in the Berne
Convention. In addition to the rights of integrity and attribution, France,
for example, includes the right of disclosure (i.e., an author can decide
when and where to publish, including providing written consent to a publisher
about any modifications to the works), the right to withdraw or retract
works (i.e., if an author's views change, the author may purchase all remaining
copies of the works and prevent the printing of additional copies), and
the right to reply to criticism. French law even allows these moral rights
to be transferred to authors' heirs.
Authors and artists have legitimate reasons to be concerned about the
display of their works. Imagine an author submitting a manuscript without
error and a publisher introducing grammatical and spelling mistakes when
the manuscript is edited and typeset. Surely the publication of such a
work would embarrass the author.
Publishers may create derivative works of several authors' writings.
The resulting publications may be poorly received by the public, thus humiliating
the authors. If the publisher chooses not to include the authors' names
on a good publication, those authors will not receive favorable public
reaction to their works.
Those who purchase artists' works may paint over or desecrate the works.
Black and white films have become colorized. Sculptures that were commissioned
for specific buildings may be removed, repainted, or altered.
Notwithstanding these scenarios, publishers have been drafting all-rights
contracts to discourage authors and artists from invoking their moral rights.
One author states that all-rights contracts are "dangerous.... Their whole
purpose is to undermine the crucial principle that each right in a contract
must be claimed separately and specifically, and that any right not claimed
remains with the author" (Nancy Updike, "Green Eggs and Lawsuits—Artists,
Contracts and Money," LA Weekly, July 2026, 2001; http://www.laweekly.com/ink/01/35/coverupdike.shtml).
Despite years of legislation, the various viewpoints of publishers and
authors remain conflicted. As Samuel Clemens stated at the beginning of
the 20th century: "Only one thing is impossible for God: to find any sense
in any copyright law on the planet. Whenever a copyright law is to be made
or altered, then the idiots assemble."
Stephanie C. Ardito is the principal of Ardito Information &
Research, Inc., a full-service information firm based in Wilmington, Delaware.
Her e-mail address is email@example.com.