Where is the Morality?
Published on 09.10.10
We were recently shocked and stunned here at Myows to find our logo, site design etc. sitting snugly within another person’s portfolio of work, where it was being passed off as his own on his website.
Fortunately, the offending site was taken down after we alerted him to the error of his ways. But the case raised some interesting questions about what could be done legally in situations like this where someone claims your work as their own.
One of the legal options available is to claim and enforce your moral rights over your work.
Now for those of you who know your way around the legal system, you will know that morals don’t often come into it. But did you know that as the creator of a design, the writer of an article, the maker of a YouTube video, or the developer of code, you enjoy certain additional rights over and above the normal copyright protection available over your work. Even when you have given your copyright away, you still retain these moral rights over your original work.
These moral rights consist of two separate rights:
a) the right of paternity which allows you to tell the world that you are the author of a work;
and b) the right of integrity which allows you to prevent others from distorting, mutilating or modifying your work in a way that is prejudicial to your honour or reputation (e.g. painting excessive facial hair on the Mona Lisa).
What to do when your Moral Rights are infringed
Let’s use our experience as an example – our work was displayed on someone else’s website under their portfolio of work. They did not have authority to publish our work, but more importantly they claimed that they had created the work themselves. We would have the normal recourse against the offender for the infringement of our copyright; but we could also claim that our right of paternity was infringed because the offender failed to attribute the work to us.
There is a fine distinction here – if the offender had stated on his site that he was not the creator of the design but failed to say that we were, he would not be infringing our right of paternity unless we had previously required that he attribute authorship in the design to us. However, by going further and holding himself out as the creator, he immediately infringed our paternity right.
Let’s take another example – let’s say we had assigned the copyright in our design to another person (person X) and they had then authorised another person (person Y) to make modifications to the design. As the original author of the design, we would not be able to claim copyright protection (we gave it away); but we could still challenge any modifications that were prejudicial to our honour and reputation by enforcing our right of integrity.
Recognised by the Berne Convention, moral rights are separate and distinct from copyright.
However, an infringement of an author’s moral rights can be acted upon in the same way as if there was an infringement of copyright. You would be entitled to claim civil damages and/or injunctive relief, and you could bring criminal charges against the offender.
The offender cannot rely on any of the normal exemptions to copyright infringement, e.g. fair use, as these don’t apply to an infringement of moral rights. However, if you authorised the use of your work in the making of a movie or computer program, you cannot prevent modifications that are absolutely necessary on technical grounds, or for the purpose of commercially exploiting that movie or program.
Unlike copyright, you cannot transfer your moral rights to someone else.
They remain vested in you for your lifetime. You can however waive your moral rights or agree that you won’t enforce them. Although no formalities are required for a waiver of moral rights, it is always a good idea to reduce any waiver to writing.
So go out there and uphold good “morals”!