Protection of Moral Rights Under U.S. Law
Last month the Ninth Circuit heard oral arguments in an appeal involving the Jay-Z song, Big Pimpin'. Among the matters at issue is the question of whether a sample used in the song's hook violates rights originally provided to the author under Egyptian law. It's an unusual case for United States courts because it involves so-called "moral rights" in music.
The term "moral rights" (or "droit morale") refers to certain non-economic rights that are personal to a creator. Moral rights are distinct from "economic rights," which, for example, would allow a creator to receive money for the distribution of a work. Moral rights, by contrast, may include a right to be attributed as the author of the work, a right to publish a work anonymously, and/or a right to prevent a work from being altered. Moral rights are a part of the Berne Convention for the Protection of Literary and Artistic Works, which is an international agreement among various nations (including the United States) and which deals with copyright.
United States law does not have a lot of express protections for moral rights. In the United States, the main source of moral rights protection is the Visual Artists Rights Act of 1990 (VARA), which is found in 17 U.S.C. § 106A. However, the VARA only applies to a narrow category of visual works. For the VARA to apply to a work, that work must be one of the following:
[A] painting, drawing, print, or sculpture, existing in a single copy, in limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
In addition, there are various exceptions to coverage under the VARA, and note that the types of works not protected under the VARA include posters, maps, technical drawings, applied art, motion pictures or other audiovisual works, books, and magazines; any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; any works made for hire; or any works not subject to federal copyright protection.
In the case of qualifying works, the VARA provides the author(s) with several rights (which are in addition to general rights provided under the Copyright Act). The specific rights provided under the VARA include the right to claim authorship of the work (and the right to remain anonymous), and the right to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to the author's honor or reputation.
There are, however, some other ways that moral rights can be protected under US law. For example, California and New York have state statues that are similar to the VARA. In addition, various moral rights-"esque" claims may be brought under more traditional legal theories, such as theories involving rights of publicity, and theories arising under the Lanham Act (e.g., in cases involving "passing off" of someone else's work ) or the Copyright Act (e.g., in cases involving infringement of the exclusive right to prepare derivative works). Indeed, the United States relies on a combination of state and federal law to comply with its obligations under the Berne Convention (though it's worth noting that in January 2017, the United States Copyright Office began a study to assess the state of moral rights protection under current U.S. law, and to determine whether additional protection is advisable). Finally, moral rights can also be negotiated in private contracts.
Moral rights are also often recognized outside the United States. In fact, in territories outside the United States these types of protections can be stronger and more well-developed than they are domestically. For example, in Europe (where the concept of moral rights first originated), moral rights generally enjoy stronger protections those that arise under U.S. law.