We all recognize that there’s something unique about creative labor and creative products, something setting them apart from mass-produced property. There’s a qualitative difference between a poem and a shovel. As former Guild president Scott Turow said recently, “artists traditionally are believed to have put a little bit of their soul into whatever they create . . . there is a kind of specialness in creative work.” The belief that creative products, because imbued with an individual’s spirit, are something more that physical property, and thus deserve additional protection, is recognized by the concept of “moral rights.”
We’ve been thinking about moral rights recently. The United States Copyright Office has been studying the issue, and we recently responded to its call for comments on whether U.S. law sufficiently recognizes the moral rights of authors and other creators, as the U.S. is required to do since joining an international copyright treaty—the Berne Convention—in 1989.
The Copyright Office is studying two separate moral rights: the right of “attribution” and the right of “integrity.” The right of attribution recognizes an author’s right to be credited as the author of his or her work. The right of integrity recognizes an author’s right to prevent prejudicial changes to or distortions of his or her work. The right of integrity is not foremost among the concerns of book authors: changes made to a book that are great enough to be “prejudicial” would likely be prevented by the author’s rights to derivations of his or her book—“derivative works” rights, as they’re known in the law. We’ll be addressing the right of integrity in subsequent comments. We focused on the right of attribution in the comments just submitted, making the case that current U.S. law does not provide sufficient attribution rights.
Unattributed publication hasn’t been a major problem for authors because the widespread practice in the publishing industry has been to credit the author (unless otherwise agreed, such as for ghostwritten works or works made for hire). But, in the absence of a statutory right of attribution, or a contractual clause securing it, there is legally nothing preventing publishers from publishing a work without crediting its author.
Moreover, there are many situations where written contracts aren’t entered into, or where an agreement doesn’t address attribution, or where, in the context of Internet piracy, a writer’s name is removed from the book, or replaced. These are the situations where a right of attribution could provide a remedy. And that’s what we’ve asked for in our comments, which you can read in full below.
We will be providing follow-up comments and will be reaching out to you, our members, for input on the how you feel about moral rights. Should the rights be waivable? Should authors have a non-waivable right so that they are given credit even for ghost-written works?