Moral Rights IP Fordham Law

+
Moral Rights
Copyright Law & Moral Rights Civil Law and Common Law approach
Fordham Law School Comparative IP & IT - IPGL-0230-001 Room 310 February 2010 / Prof. Pablo A. Palazzi
Rights under Law

Pecuniary Civil
rights vs. Moral rights
law tradition: both are important, but Droit Moral most unique feature law: weak moral right or inexistent
Common Born
from case law, not statute statutory rights in civil law tradition
Currently
How moral right was born?

France
(first cases)
1828: case Widow Vergne
v. Creditors of Mr. Vergnean unpublished manuscript is not property that could be seized anterior to the publication (there is a private interest and right that belongs exclusively to the author) 1845: case Marquam Lehuby - editor does not have the right to alter a work submitted for publication.
Berne
Convention (1928 Rome Act) statutes in civil and common law
Several
New problem: the Internet

Great
expansion of author and heirs rights Critics to uses of works?
April
Obstacle
2006: the estate of Spanish painter Joan Miro objected to Google's copying of Miro's style on its home page in an attempt to honor him on his birthday. The family's representative indicated that the purported tribute violated Miro's copyright and moral rights. Google denied any violation of Miro's rights, but removed the Miro-like elements from its logo.
Internet
+
International Sources
International Sources
Berne
Convention : article 6 bis Universal Convention : no provision
Geneva WIPO WIPO
Copyright Treaty 1996 : no provision
Performances and Phonograms Treaty (WPPT): article 5 (moral right of performers) Agreement 1994: no provision, but see article 9.1, sentence 2. Community Law : no provision
TRIPS
EU
Moral Rights : International Sources

Berne
Convention : article 6 bis
Geneva
Universal Convention : no provision : why ? Minimalist approach of International Copyright Law 1996 : no provision
WIPO Treaties WIPO TRIPS
Performances and Phonograms Treaty: article 5 Agreement 1994: no provision Law : no provision
Community

Berne
Convention : article 6 bis Universal Convention : no provision
Geneva
WIPO Treaties
1996 : no provision : why ? Different purposes Internet / Software / Databases / DRM / Information Performances and Phonograms Treaty: article 5 Agreement 1994: no provision Law : no provision
WIPO TRIPS
Community

Berne
Convention : article 6 bis Universal Convention : no provision 1996 : no provision
Geneva
WIPO Treaties WIPO
Performances and Phonograms Treaty: article 5 Agreement 1994: no provision : why ? Economic Organisation : Moral Right outside of its scope Law: no provision
TRIPS
Community
10

Berne
Convention : article 6 bis Universal Convention : no provision 1996 : no provision
Geneva
WIPO Treaties WIPO
Performances and Phonograms Treaty: article 5 Agreement 1994: no provision Law : no provision
TRIPS
Community
11
Article 6bis - Berne Convention

(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 maintained. (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.
12
Moral Right : International Sources

Berne Convention: article 6 bis
1. To
claim authorship; to object to certain modifications and other derogatory actions; the author's death; of redress
2. After
3. Means
13

article 6 bis: Content
(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.
14

(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 (paternity right or right of attribution)
15

(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 (integrity right)
16

Berne
Convention: article 6 bis
Paternity
right Integrity right No right to divulge No right of withdraw or repent
Minimalist conception of Moral Rights as compared to civil law tradition countries (France; Germany)
17

Article 6 bis: Authorship /duration
(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 maintained
18

(2) The
19

(2) The
20

Article 6 bis : conflict of Law: legislation of the country where protection is claimed
(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.
21

Scope and effectiveness of the article 6 bis
Limited scope as it is possible to comply with article 6 bis without introducing express provisions within copyright law (e.g. United States?) reference to the Berne Convention does not extend to article 6 bis (exclusion)
The TRIPS
22
TRIPS Agreement 1994

Article 9 - Relation to the Berne Convention: 1. Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.
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Reasons to exclude moral rights from TRIPS

Article 9.1 is a Bern-minus provision Objective: to remove moral rights from TRIPS However exception does not derogates from rights and obligations under article 6 bis BC But the WTO dispute settlement rules do not apply or of the rights derived therefrom: to exclude not only 6 bis but also 10(3) and 11 bis (2) BC
+ Reasons to exclude moral rights

Article Worry
24
9.1 sentence 2 is a result of a US initiative. U.S. highly sceptical of moral rights about WTO potential dispute settlement proceeding: minimal amendment of the Copyright Act since US accession to the Berne Convention cast doubts about compliance with BC art 6 bis lobby + Hollywood film industry which feared that author moral rights may interfere with licenses that have already been acquired US argument: the moral rights were non economic rights and did therefore not belong to the trade-related aspects of IP which are TRIPS sole topic clause in NAFTA Annex 1701.3 No. 2: This Agreement confers no right and imposes no obligations on the US with respect to Art. 6 bis BC or rights derived from this article
US
Official
Similar
25

WIPO Performances and Phonograms Treaty
Article 5- Moral Rights of Performers
(1)Independently
of a performers economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation. rights granted to a performer in accordance with paragraph (1) 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 Contracting Party where protection is claimed. However, those Contracting Parties whose legislation, at the moment of their ratification of or accession to this Treaty, does not provide for protection after the death of the performer of all rights set out in the preceding paragraph may provide that some of these rights will, after his death, cease to be maintained.
(2)The
(3) The means of redress for safeguarding the rights granted under this Article shall be governed by the legislation of the Contracting Party where protection is claimed.
Moral right in the Civil Law tradition
26
27
Moral Right : Civil Law

Monist conception Germany, Austria, Hungaria,Czech Republic. Urheberpersnlichkeitsrecht
Same duration: End of moral right at the expiration of economic rights Urheberrecht as a whole is not alienable: Same philosophy : balance of interests
Dualist conception France, Italy, Spain Droit moral, diritto morale, derecho moral Different regime from economic rights Different philosophy (author centered) perpetual, inalienable imprescriptible
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Moral Right : Civil Law

Droit No
moral is inalienable
unanimity:
on duration, on scope, on possibility of waiving ones right

Ex
: ghostwriter agreement - is not really enforceable? of waiver of the right to be named?
Effect
29
French IP Code
Article An
L121-1
author shall enjoy the right to respect for his name, his authorship and his work. right shall attach to his person. It shall be perpetual, inalienable and imprescriptible. It may be transmitted mortis causa to the heirs of the author. Exercise may be conferred on another person under the provisions of a will.
This
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Nature
One View: Non-pecuniary
nature: resemble rights of personality or individual civil rights. view: Moral rights are not inherent in an author's individuality, they just relate to a work. E.g: a legal entity may be granted moral rights. does not fit the personality right analysis.
Another
It
31
Problems
Prof. Raynard
MR should be regarded as a mere derogation from the normal exploitation of a work, through a potential limitation on prerogatives of copyright assignees. a US view France's droit moral seems to hold an excessive place within copyright law to undermine producers' economic expectations and to harm both modern creation and the public interest
For
Tends
32
Moral Rights
ight r
of paternity (or attribution); ight of integrity; r ight of disclosure; R ight to withdraw the work. r
+
Right of Attribution
33
34
Right
of paternity: allows an author to claim authorship of his work and, therefore, to be acknowledged as the author of the work intended to enable the author to be identified as the author of the work on copies or whenever the work is communicated to the public. U.S. terms, it is the author's right to credit for authorship.
Is
In
35
Guille v. Colmant
Guille
a painter agreed to deliver to Colmant, a dealer, his entire future production for a period of ten years at a rate of twenty paitings a month. No duress in entering contract. provided that the works furnished to the dealer would be signed with a pseudonym and that the painter would not sign his earliers works. sued artist for breach of contract.
Contract
Dispute. Dealer
36
Guille v. Colmant
Held: the
dealer could not prohibit the artist from using his real name in connection with works he created, despite the terms of the contract.
Guille v. Colmant (1967) Recueil Dalloz-Sirey D.S. Jur 284 . Gazette du Palais I. 17 (Cour dappel, Paris).
37
Publishing
a work without designating its author violates the author's moral right of attribution. name should be mentioned on publicity for the work. parties who delete the author's name or substitute their own for that name commit an act making them liable for damages.
Author's
Third
38
Negative In
aspect of attribution
the case of a work falsely attributed to an author, the author alleging false attribution is permitted to forbid the use of his name as a creator of the work. of fake Borges poem in Argentina. Widow of Borges initiated actions against publishing house.
Case
39
Rodin case French
court holding that "attribution to Rodin, by means of an usurpation of name, of a work he actually did not make, undermines the sculptor's right to respect for his name and harms the artistic identity of his work."
CA, Paris, 13e ch., Mar. 23, 1992, R.I.D.A., 1993, 155, 181.
40
Barrault v. Citroen
Commissioned
draftsman demanded, on the grounds of his paternity right, that his contracting car manufacturer affix his name on the coachwork of each marketed vehicle. judge rejected the claim, stating that "in the field of industrial designs, the artistic work has an accessory character in comparison with the exploited product, so that success is mostly relying on a financial effort of the company that took an exploitation risk.
The
41
French IP Code
Article An
L121-1
author shall enjoy the right to respect for his name, his authorship and his work. right shall attach to his person. It shall be perpetual, inalienable and imprescriptible. It may be transmitted mortis causa to the heirs of the author. Exercise may be conferred on another person under the provisions of a will.
This
42
Smith v. Montoro
The
court held that the removal of an actor's name from the film credits and accompanying advertising material in connection with the film, as well as the substitution of another name, violated section 43(a) of the 1946 Lanham Act on trademarks, as a false designation of origin of goods or services.
Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981).
43
Clevenger v. Baker Voorhis & Co
Clevenger
v. Baker Voorhis & Co., New York Court of Appeals granted former author and editor of law books the right to prevent his former publisher from using his name. had terminated his position as editor and had revoked his consent to have his name used as editor of any later editions. Defendant publisher indicated that Clevenger was the editor of a subsequent edition filled with errors.
Plaintiff
44
Lamothe
v. Atl. Recording Corp., 847 F.2d 1403 (9th Cir. 1988) : Addressing removal by a songwriter of his coauthor's name on published music Johnson v. Jones, 149 F.3d 494 (6th Cir. 1998) Substituting one architect's name for another's on architectural plans.
Dastar Corp. v. Twentieth Century Fox
In 1948, Fox obtained the exclusive rights to create a television series called Crusade in Europe, based on the 1948 book, Crusade in Europe written by Dwight D. Eisenhower and published by Doubleday. The 26episode series showed World War II film footage from the US military and other sources, with a voice soundtrack based on a narration of the book. In 1975, Doubleday renewed the copyright on the book. Fox, however, did not renew the copyright on the TV series, so the show entered the public domain in 1977.
46

In
1988, Fox reacquired the television rights to the book, and licensed to other companies the right to purchased Betacam videotapes of the original TV series, copied the tapes, edited them to about half the original length, . created new packaging, and sold the TV series as World War II Campaigns in Europe. The new videotapes and advertising mentioned Dastar and its employees as the producers, and did not mention the original Crusade in Europe book, TV series, or producers.
47

Fox
sued in 1998, claiming that Dastar had infringed the copyright to the Crusade in Europe distribute Crusade in Europe on video. Then in 1995, Dastar book, and that, under the Lanham Act, it had illegally done a "reverse passing off", passing off the work of others as its own work. The district court found for Fox and awarded it double the profits that Dastar had made. The Court of Appeals reversed the copyright claim and sent it back to the district court on remand, but upheld the "reverse passing off"/Lanham Act ruling, and affirmed the award of double the profits
48

A former copyright holder could not bring a Lanham Act claim for false designation of origin against a subsequent distributor who labelled itself the "producer" rather than the work's original author, because "origin" under the Lanham Act refers only to the origin of the physical goods rather than the intangible ideas contained therein. Ninth Circuit Court of Appeals reversed and remanded.
49
Dastar case (2003)

Professor
Jane Ginsburg expressed the view that from now on, "in the United States neither the copyright nor the trademark laws establish a right of attribution generally applicable to all creators of all types of works of authorship," and so the compliance of American copyright law with Berne might be challenged.
Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law, 41 Hous. L. Rev. 263 (2004)
50
Academic criticism of Dastar

Austin, Graeme W., The
Berne Convention as a Canon of Construction: Moral Rights After Dastar. NYU Annual Survey of American Law, 2005. Available at SSRN: http://ssrn.com/ abstract=707181 Author's Name as a Trademark: A Perverse Perspective on the Moral Right of 'Paternity'?, http://lsr.nellco.org/columbia_pllt/ 0591/
Ginsburg, Jane, The
+
The Right of Divulgation
51
52
The Right of Divulgation

The
right of divulgation is the right of the author to decide when and how his work is to be disclosed to the public, including the right not to disclose it. the course of its development, French copyright law came to acknowledge that, when the moral right of divulgation conflicted with economic rights, the former would prevail over the latter
In
53
Whistler decision
The American painter Whistler, while living in Paris, had been contractually commissioned by the British Lord Eden to make a portrait of Lady Eden. Whistler not only made the portrait, but allowed it to be shown briefly to the public in the Salon du Champ de Mars, and then refused to deliver it as he had promised, and had been paid, to do. Whistler painted out Lady Edens head, painted in another and refused to deliver the work.
54
Whistler decision
The Cour de cassation held that ''the contract by which a painter promises to execute a painting in return for a fixed price constitutes a special contract by which the property [to the embodiment of the work] passes to the commissioning party only when the artist makes the painting available to such party and such party accepts it.' Lord Eden was entitled restitution of 100 guineas he had paid and damages for breach of contract but he could not compel restoration of the portrait or its delivery.
55
French IP Code
Article The
L121-2
author alone shall have the right to divulge his work. He shall determine the method of disclosure and shall fix the conditions thereof ....
56
French IP Code
After
his death, the right to disclose his posthumous works shall be exercised during their lifetime by the executor or executors designated by the author. If there are none, or after their death, and unless the author has willed otherwise, this right shall be exercised in the following order: by the descendants, by the spouse against whom there exists no final judgment of separation and who has not remarried, by the heirs other than descendants, who inherit all or part of the estate and by the universal legatees or donees of the totality of the future assets. right may be exercised even after expiry of the exclusive right of exploitation set out in Article L123-1.
This
57
French IP Code
Article
L121-3. In the event of manifest abuse in the exercise or non-exercise of the right of disclosure by the deceased author's representatives referred to in Article L121-2, the first instance court may order any appropriate measure. The same shall apply in the event of a dispute between such representatives, if there is no known successor in title, no heir or no spouse entitled to inherit. matters may be referred to the courts by the Minister responsible for culture.
Such
58
French IP Code
Article
L121-6. If one of the authors refuses to complete his contribution to an audiovisual work or is unable to complete such contribution due to circumstances beyond his control, he shall not be entitled to oppose use of that part of his contribution already in existence for the purpose of completing the work. He shall be deemed the author of such contribution and shall enjoy the rights deriving therefrom.
+
Right to withdraw the work
60
French IP Code
Article
L121-4. Notwithstanding assignment of his right of exploitation, the author shall enjoy a right to reconsider or of withdrawal, even after publication of his work, with respect to the assignee. However, he may only exercise that right on the condition that he indemnify the assignee beforehand for any prejudice the reconsideration or withdrawal may cause him. If the author decides to have his work published after having exercised his right to reconsider or of withdrawal, he shall be required to offer his rights of exploitation in the first instance to the assignee he originally chose and under the conditions originally determined.
The Right of Integrity of the Work
61
62
The Right of Integrity

Definition This
of Berne Convention
right starts by assuring that the integrity of the author's work is maintained, but its scope is somewhat broader.... author may assert this right against others for violations of which he is, to a large extent, the arbiter. parties who suppress, supplement, alter or otherwise modify a work do so at their own risk.
The
Third
63

In
many civil law tradition regimes the author of the work does not have to prove that such acts did or might prejudice his honor or reputation to obtain relief against them, nor need he justify his reasons for refusing to tolerate such acts. about parody? fair uses?
What The
author alone judges whether, and how, it might be fitting to alter the work and, accordingly, in what form it should reach the public.
64

Not
an absolute right
Case
in which Salvador Dali asserted his right to respect to oppose additions which a theatrical production had made to costumes he had designed. allowed changes as long as ''the additions do not result in an inaccurate portrayal of the work.
Court
65

French
law seeks to preclude the public, third parties, or the courts from substituting their choices or value judgments for the author's concerning whether modifications of his work might be fitting. decision made this clear when enjoining a director of Waiting for Godot from exercising his free choice to cast men or women, since the playwright Samuel Beckett had clearly expressed his intention not to have women play in this piece.
E.g. a
66
Millet case
Son
of painter Millet claimed that two publications distorted and falsified his father work moral rights and should be prohibited. of Millet popular painting The Angelus. refused destruction of existing copies but held...
Reproduction
Cort
67
Millet case
the reproductions brightened the light in the painting, made objects look real and vulgar, added a bonet on one persons head and a scarf around a womans neck, and changed an evening scene to one suffused by a glaring noonday sun....
68
Leger case
Leger
v. Reunion des Theatres Lyriques Nationaux, 6 R.I.D.A. 146. Bolivar Leger designed setting for the Opera
Fernand
New
production without one scene of the opera (Crossing of the Andes) has no right to make a cut without the artist permission and without informing the public
Producer
69
Rousseau Galeries
v. Galeries Lafayette (1974)
L., a Paris department store, used paitings of artist in its windows decorations of the artist sued invoking moral righsts
grandfather
repdroductions
employed different colours and altered images affecting right of integrity mention of name of artist
No
+ De Chirico v. Ente Autonomo La Bienale de

Venezia
70
1950 Venice Biennale drew together works by the Italian artist Giorgio De Chirico from public and private collectors for a retrospective exhibition. None of the paintings belonged to the artist. Artist filed action to prohibit the exhibition: the show misrepresented him by overincluding earlier works and underincluding the later ones.
71
Trial Court
the
one man show at the Bienale is very important for the reputation of the artist is viewed as a critical and representative exhibition of the artist work and it may strongly affect the estimation of the artist. has a legally protectable interest in being accurately and fairly represented in it. of the artist????
it
artist
consent but
Court of Appeals revoked the decision
72
Court of Appeals
narrow Italian
and literal reading of the statute
Copyright act provided no right to the artist to control the exhibition of works he no longer owned court: censorship? is the limit of the right of integrity?
trial
what
Shostakovich case
The
Iron Curtain Film used S. music that was in the public domain.
FRANCE
Judgment of Jan. 13, 1953 (Soc. Le. Chant de Monde v. Soc. Fox Europe et Soc. Fox Americaine Twentieth Century), 1953 G.P. 191.
USA
Shostakovich v. Twentieth Century-Fox Film Corp., 80 N.Y.S.2d 575, 578 (Sup. Ct. 1948).Shostakovich v. Twentieth Century-Fox Film Corp., 87 N.Y.S. 2d 430 (1st Dep't 1949). Result: injunction denied! Moral right not recognized in common law
74
Right of Integrity
The
right to respect goes beyond remedies for alterations of a work itself. right may allow the author to obtain relief against various practices that might present his work in misleading, disparaging, or derogatory circumstances, fashions, or contexts. does not protect artist honor or reputations (tort law)
The
It
75
Tintin Case
The
heirs of the author of the comic-book series Tintin, famous for a boy and his scrappy little dog as well as other picturesque characters initiated lawsuit to protect Tintin.
76
Tintin case
First
case: plaintiff obtained an injunction against performances of a play placing these characters in situations so different from their adventures in the series as to ''corrupt the ethics'' of the work as a whole. case: parody of Tintin in Switzerland. Court said there is no parody. The obscene character of the work affects the reputation of Herg and mutilated the work.
dappel de Bruxelles, june 8 1978, Casterman et Georges Remi v. Callico
Second
Cour
77
Buffet v. Fersing
French
artist Bernard Buffet was invited to decorate a Refrigerator to be auctioned in Paris for the benefit of charity. He did so by painting a composition consisting of six panels: 3 on the front one on the top and one on each side of the refrigerator. The work of art was auctioned. Six months later the catalog for another auction included a Still Life with Fruits by Bernard Buffet and described as painting on metal.
78
Buffet v. Fersing
Artist brought an action against the ownerconsignor to prevent the separate sale of the panel and the court so ordered. Tribunal also awarded symbolic damages of one franc, the right to publish it decision in three art periodicals of his choice at defendant cost and expense. It refused artist request that the six panels be awarded to him as damages.
79
Buffet v. Fersing
On
appeal the court revised the judgment to prohibit even private piece-by-piece disposition of the work (not only public dismemberment). of moral right of the artist warrants the limitation of defendant right of property.
Protection
Buffet v. Fersing (1962) recueil Dalloz 570, 571 (Cour dappel, Paris). Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1035 (1976).
80
Moral Right : Civil Law Film Colorization
Dualist conception France Droit moral
International Public order Asphalt Jungle / colorization of american film
81

Turner
Entertainment Co. v. Huston, CA Versailles, civ. ch., December 19, 1994, translated in Ent. L. Rep., Mar. 1995. Entertainment Company (TEC) acquired the rights to "Asphalt Jungle," a 1950 John Huston movie, when it merged with Metro Goldwyn Meyer (MGM). Once TEC so acquired the movie, it proceeded to add color to Huston's black and white movie; and entered into an agreement with the French television channel, La Cinq, to broadcast the modern version of the movie.
Turner
82

Huston's
heirs and the screenwriter, moved to prevent the broadcast of the altered work. ruling in favor of the Plaintiffs, the French Court held that the "integrity of a literary or art work cannot be affected in France, regardless of the state in whose territory the said work was made public for the first time.
In
83

The
Court noted that the Section 6 of the Law of 11th March 1957, is the textual support for the right of integrity. provides that "the author enjoys the right to respect for his name, his status, his work--this right attaches to his person and may be transmitted to the author's heirs after death.
It
84

colorization
is not an adaptation or an original work in an of itself both in expression and composition, rather it is a modification of the original work. and white movie was made at the time when color was available to the artist, and therefore, the motion picture in question was filmed in black and white (and not in color) following a deliberate aesthetic choice was a violation of the moral rights.
black
colorization
85
French IP Code
Article
L121-5. An audiovisual work shall be deemed completed when the final version has been established by common accord between the director or, possibly, the joint authors, on the one hand, and the producer, on the other. of the master copy of such version shall be prohibited.
Destruction Any
change made to that version by adding, deleting or modifying any element thereof shall require the agreement of the persons referred to in the first paragraph above. transfer of an audiovisual work to another kind of medium with a view to a different mode of exploitation shall require prior consultation with the director. authors' own rights, as defined in Article L121-1, may be exercised by those authors only in respect of the completed audiovisual work.
Any
The
86
Plon v. Hugo (Heir of Victor Hugo)

Article 10 ECHR
87
Right of Integrity - Spain

Spanish architect, Santiago Calatrava, was commissioned by the Bilbao municipal authorities to design and oversee the construction of a bridge over the river Nervin, which runs through the middle of the city. The bridge was part of Bilbaos urban development project to unite the two sides of the river. Construction was completed in May 1997, and the work was received by the city Council to their apparent satisfaction. The bridge, known by its Basque name Zubi Zuri (white bridge) became one of the citys landmark attractions. Some years later, two companies began work on the construction and promotion of new riverside complex close to the Zubi Zuri. In order to connect the new development to the other side of the river via the Zubi Zuri, some changes were needed...
88

An
extended walkway supported by two concrete pillars was attached to Santiago Calatravas bridge in 2006 by removing a section of the balustrade. Mr. Calatrava claimed infringement of his moral right to the integrity of his work, citing the fact that the extension had been added without his authorization, and nor had his permission been sought for the removal of part of the balustrade.
89

He
demanded that the bridge be restored to its original state and the walkway demolished, plus 250,000 euros for moral damages and publication of the judgment in the national and specialist press. Alternatively, if the bridge could not be restored, he requested a compensation payment of 3 million.
90
91

The
judge agreed that Santiago Calatravas bridge had suffered an alteration: a section of balustrade had been removed, and a walkway had been attached which was built in a completely different style, using a support structure which broke with the design of the plaintiffs bridge. The grayish color also contrasted markedly with the white bridge. He concluded that the addition to the Zubi Zuri had without question altered its character. Spanish Law makes a clear distinction between the rights of the owner of the material work (Bilbao City) and the rights of its author (Mr. Calatrava). fact that the city council is the legal owner of the architectural work does not entitle it to make alterations to the work which damage its authors moral rights. Nor does the fact of the evident practical utility of the work i.e. enabling the citizens of Bilbao to cross the river prevent the application and validity of the authors moral rights.
The
The
92

In
the final analysis, however, the judge determined that the legitimate (private) interests of Mr. Calatrava with respect to the integrity of his work must be weighed, not only in terms of his case against the city council, but also with respect to the (public) interest of the citizens. For the people of Bilbao, the addition of the walkway to the Zubi Zuri enabled them to access the new Isozaki Atea complex on one level, without the difficulty and inconvenience of walking up and down several flights of stairs. the conflict between these private and public interests, it was the moral rights of the architect which lost. The Court rejected Mr. Calatravas demand and ruled that, while alteration of the work had certainly taken place, the right to the integrity of the work was not breached because the author is obliged to tolerate this in consideration of the public service that his work provides.
In
93

On
appeal the Court found an infringement of moral rights of Calatrava and awarded the plaintiff Euro 30,000 due to the alteration of the bridge.
94
Right of integrity - India

Amar Nath Sehgal vs Union of India
Amar Nath Sehgal vs Union of India [2005 (30) PTC 253].

Facts: in 1959, the Ministry of Works of the Union Government of India commissioned a talented sculptor, Amar Nath Sehgal, to design a mural. The work was to adorn the walls around a central arch of the Vigyan Bhawan, a venue for important government functions in the capital city. The mural was completed in 1962. In its final shape, it measured a mammoth 40 feet high and 140 feet long. For nearly 20 years the mural attracted dignitaries and art connoisseurs from all over the world. It became a landmark in the cultural life of the capital. Then the Vigyan Bhawan buildings were renovated. In the process, the mural was ripped off the walls and the remnants put into store.
95

Defenses:
the
plaintiff (Mr. Sehgal) had assigned his copyright to the defendant (the government) in an agreement dated 31st October 1960; defendant had purchased all rights from the plaintiff, and was consequently free to do as it pleased with the mural; the mural had already been damaged in a fire in the Vigyan Bhawan;
the
96

Defenses:
according to the terms of the 1960 agreement, any grievance should be referred to an arbitrator appointed by the defendant. Pradeep Nandrajog of the Delhi High Court ruled that: "All rights of the mural shall henceforth vest with Mr. Sehgal." The court ordered the return of the remains of the mural to the sculptor, and also slapped damages of Rs.500,000 (some US$ 12,000) on the defendant. Ultimately, the matter was amicably resolved. After the hard fought and emotional battle, Mr. Sehgal, grateful for his victory, waived the claim of damages against the government in exchange for the return of the mural.
Justice
SOURCE: Binny Kalra, Copyright in the Courts: How Moral Rights Won the Battle of the Mural, WIPO Magazine, April 2007, http://www.wipo.int/wipo_magazine/en/2007/02/ article_0001.html

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Rights under Law

rights vs. Moral rights

How moral right was born?

1828: case Widow Vergne

Convention (1928 Rome Act) statutes in civil and common law

New problem: the Internet

expansion of author and heirs rights Critics to uses of works?

Convention : article 6 bis Universal Convention : no provision

Geneva WIPO WIPO

Copyright Treaty 1996 : no provision

Moral Rights : International Sources

Convention : article 6 bis

WIPO Treaties WIPO TRIPS

Moral Rights : International Sources

Convention : article 6 bis Universal Convention : no provision

Moral Rights : International Sources

Convention : article 6 bis Universal Convention : no provision 1996 : no provision

WIPO Treaties WIPO

Moral Rights : International Sources

Convention : article 6 bis Universal Convention : no provision 1996 : no provision

WIPO Treaties WIPO

Article 6bis - Berne Convention

Moral Right : International Sources

Moral Right : International Sources

Moral Right : International Sources

Moral Right : International Sources

Moral Right : International Sources

Convention: article 6 bis

right Integrity right No right to divulge No right of withdraw or repent

Moral Right : International Sources

Moral Right : International Sources

Moral Right : International Sources

Moral Right : International Sources

Moral Right : International Sources

TRIPS Agreement 1994

Reasons to exclude moral rights from TRIPS

+ Reasons to exclude moral rights

Moral Right : International Sources

Moral right in the Civil Law tradition

Moral Right : Civil Law

Moral Right : Civil Law

on duration, on scope, on possibility of waiving ones right

: ghostwriter agreement - is not really enforceable? of waiver of the right to be named?

Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981).

Dastar Corp. v. Twentieth Century Fox

Dastar Corp. v. Twentieth Century Fox

Dastar Corp. v. Twentieth Century Fox

Dastar Corp. v. Twentieth Century Fox

Dastar case (2003)

Academic criticism of Dastar

Ginsburg, Jane, The

The Right of Divulgation

The Right of Integrity of the Work

The Right of Integrity

The Right of Integrity

The Right of Integrity

The Right of Integrity

v. Galeries Lafayette (1974)

+ De Chirico v. Ente Autonomo La Bienale de

Court of Appeals revoked the decision

and literal reading of the statute

Moral Right : Civil Law Film Colorization