Moral rights – taking the high ground

By MARK PEARSON

International conventions and the laws of many countries grant you ‘moral rights’ over your work in addition to your actionable economic rights over copyright. They give you the right to claim authorship of your work through attribution and also the right to object to any changes others might make to your work that might damage your integrity as the creator.

Even if you transferred the copyright in your work to someone else – as you might have done as a freelance blogger or if you were writing as an employee in a government or media organisation – you would still retain your moral rights as an author. This means you can take action against those who might put their own names to your work or those who have put your name to the work but have changed it to your disadvantage. It operates in part to protect you from unfair attacks and parodies where your work has been mutilated, distorted beyond recognition, or reproduced in a thoroughly inappropriate context that damages your honour.

It won’t protect ‘reasonable’ criticism of your work or any critique you have agreed to. It also does not prevent employers or clients leaving your name off work if you have contracted to allow them to do so. But it sends a warning to others that they shouldn’t mess with your work or republish it without giving you due credit. As a blogger, it also means you should be careful when writing parodies pretending to be someone else or denigrating their content and style by chopping and changing it to your satirical ends.

A recent Australian case resulted in the award of $10,000 in damages over a moral rights breach to international rap/hip-hop recording star ‘Pitbull’ (Armando Perez) by an Australian DJ and promoter who had altered one of his songs and played it automatically when his website was visited and at nightclub performances. Freehills executive counsel Melanie Bouton gives an excellent summary of the case here

The issue of moral rights also raises copyright issues for the blogger or social media user writing under the name of someone famous – beyond the hazards we considered earlier in this book.

Many parts of the world have limitations on how you can use the name and image of others – particularly if you are making a profit out of it. These are often called ‘personality rights’.

In European and other civil law jurisdictions there are tough limits on how you can use the likenesses of others – all bundled up in the laws of privacy. You can’t just cut and paste someone’s photo from the Internet and use it in your blog – especially if it appears to be endorsing your enterprise in some way.

In common law countries like Australia and the UK there is an action called ‘passing off’ which can be launched against you if you have used someone’s name or likeness to imply they have entered into some commercial arrangement to endorse your product or service in some way. In its basic form, it offers simple protection to businesses against those who pretend to have some connection with them or endorsement from them. It has been extended in the creative arts to protect newspaper columnists from deceptive parodies of their work being published under their names in competing publications and also to protect the ‘pen-names’ of authors being used by their former employers after they have moved on to another title.

The US offers a property right known as the ‘right to publicity’ and several states have passed laws to extend its basic common law protections. It gives people the right to protect their name, image and other identifying features against commercial exploitation by others. However, like so many areas of US law, it is limited by the First Amendment so it usually only encompasses blatant cases of exploitation that lack a free expression rationale.

[Adapted from my book, Blogging and Tweeting Without Getting Sued. A Global Guide to the Law for Anyone Writing Online. (Allen & Unwin, 2012).

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2012

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