Horror films don't scare most lawyers. In fact, not much does. Jaded attorneys, well versed in the terms of filmic discourse seldom dread stepping into the most arcane and scary legal conundrum in the course of deal making. But there is one clause that sends shivers of doubt and uncertainty into the hearts of all but a few stalwart counselors. The Moral Rights Clause.
I touched on Moral Rights in the sidebar of my article on Life Rights, but, they are or should be a part of every creative endeavor. Though it is rarely discussed in legal circles in Hollywood, this article aims to shine more light on the seemingly taboo totem, the Moral Rights Clause. You might be surprised at how familiar the contents truly are.
Most Hollywood attorneys shy away from the subject. Out of necessity, most contracts contain a single, poorly constructed clause attempting to address the matter in the vein of “give it breath once, to ne'er speak of again” manner. Just what is it, why are attorneys afraid or ignorant of what it contains and why is it important to recognize for both creatives and producers to make sure you get it right in contractual relations?
I Don't Know What It Is, But, I Don't Like It
Moral Rights, Droit Moral, Non-Economic Rights, loaded phrases all. They are all referring to the internationally recognized set of rights whose main goal is to give purchase to the idea that
a created work has some tie to the reputation of the creator.
Above and separate from the economic rights, (the biggest and most recognizable of these being Copyright) these rights attempt to make certain that the reputation of the creator is correctly tied to the works, and that the work properly reflects and falls within the expected reputation of that creator. This is why I have attempted to address these issues in my own dealings using the less politically charged and broadly applying term Reputational Rights for this idea. (Please feel free to use this term in your own dealings.)
International treaties abound with the concept. The Universal Copyright Convention (UCC), The Berne Convention for the Protection of Literary and Artistic Works (Berne) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) all have clauses addressing Moral Rights. And the US is a signatory to each of these treaties. So there should be plenty of Federal laws on the books stipulating these rights, right?
It depends... on how you look. Directly the evidence is not good. Apart from an extremely limited and poorly interpreted when applied set aside of rights for visual artists (the Visual Artists Rights Act, or VARA) there is not one clause asserting Moral Rights for US works. But the treaties require it, don't they?
When challenged, the courts eventually determined that no more laws needed to be written. That US laws already covered the countries treaty obligations. So industrious legal minds went looking. Initially it was thought that a trademark type law, the Lanham Act would provide those protections. It was promising until a judged decided, in a Monty Python involved case, that the use of that law was improper for issues relating to the subject matter of copyright. If you wanted those rights, an addendum to the copyright laws was needed.
No existing, suitable alternative has been found. So, the courts say no new law is needed and there's nothing available until a new law is passed. No wonder attorneys get a little skittish about the subject.
What Are the Rights in Moral Rights?
Different countries recognize different versions of the classes of rights that are available as Moral Rights, so, there's no single definition. It all depends on where you are as to what you get. Here's my list that captures the bulk of the ideas behind the differing offerings.
Rights of Appellation (a.k.a. Rights of Paternity)
Right of the creator to:
be named in association with their created work.
remove their name from association with their created work.
avoid confusion by not allowing a misnaming to a work they may not have created.
Rights of Integrity
Right of the creator to prevent the destruction of their created work. (VARA has this right.)
Right of the creator to prevent or correct distortions of their created work. This could include allowing the creator to make additions, alterations, amendments or deletions to the work to preserve the integrity of not only the work, but, of the reputation of the creator as well.
There are also some more out there concepts that are protected in some jurisdictions that fall under a Reputational Rights banner:
Right of Disclosure – where a creator can dictate when a work associated with the creator can be publicly displayed. Which is a companion right to the Right of Withdrawal – where a creator can demand a work associated with the creator to be removed from public view. And available in some highly protective of reputation jurisdictions there is the Right of Access and Amendment or Alteration which allows a creator to have full access to the work, regardless of where it stands, in order for the creator to alter, amend and all out change the work.
In most cases, these rights superseded the economic rights holder. The possessor of the work or the owner of the copyright of the work cannot deny the creator these rights and actively must oblige the exercise of these rights, within the bounds of the law, by the creator.
You can imagine why these rights are scarier than a zombie horde to an attorney, producer or film studio about to release a film product.
The early days of filmmaking Hollywood completely ignored these rights, especially since they didn't seem to exist in the U.S. You didn't see any Moral Rights clause in typical contracts of the day. Until...
Ted Turner, Asphalt Jungle and the French
John Huston and Ben Maddow co-wrote and Huston directed the black and white picture, Asphalt Jungle, in 1950. As per the standards of the day, they signed away any economic rights and all copyrights to their work to the studio they made it for, MGM. The course of events found Ted Turner's company purchasing rights to the film and in 1988 he made a colorized version of the film for television broadcast. The original creators could have made the film in color if they had wanted to, but, chose black and white as a stylistic choice. But they had signed away all their rights in the US. And so Turner showed the colorized version on US TV. Later, the Turner Company sold the rights to air their version to French television. Now France is a big supporter of Reputational Rights. After all, most of the world knows it as Droit Moral, a french term. So Huston's estate and Maddow sued to stop the airing of the colorized version in French courts under the claim of Moral Rights. The French, being French, decided that the citizenship of the creators didn't matter and that the claim was a just one and found for the creators. Money changed hands and contracts throughout Hollywood suddenly got an additional clause added.
Because of the complexities of variation in international implementation of Moral Rights laws, it is difficult to make a simple clause that would cover all eventualities. Many Moral Rights clauses, even today are flawed. The tendency is to have the creator assign or waive any Moral Rights they may have to a work. A quick glance at international laws would reveal that clause to be ineffectual. There are many countries that strictly forbid waiver, others that also forbid assignment and most that allow Moral Rights decendability, meaning the heirs of a creator would have a say in preserving the reputation of their fore-bearer. Accommodating all these issues can quickly make the clause verbose. It is possible, but, remember how I said attorneys tend to avoid dealing with these issues?
It's a shame too, since the reality of it is Hollywood already deals with Moral Rights issues daily and handles most of the claim points in contracts all the time.
Hidden in Plain Sight
Though not called Moral Rights issues, nearly every Hollywood contract deals with them and has structures that handle the details well. Here's a quick overview:
Credits clauses and the determinations of collective bargaining agreements (e.g. WGA) handle whose reputation gets associated with created works for writers, directors, cinematographers and virtually anyone whose name on a work affects their next job. How are these different than Rights of Appellation?
Story By Credit
A negotiated right to be given credit for creating the work, even if there isn't enough of your original material in the finished product to give you credit as a writer, certainly sounds like a Reputational Right to me.
Right of First Refusal
A negotiated right to have first crack as writing a sequel, though not always available, is a way of being able to control the additions, alterations, amendments and alterations of a work. Sound familiar?
Even though Holy Grail “Final Cut” is a myth nowadays, giving the director an opportunity to put their name on a cut that they controlled allows them to protect their reputational connection to the film.
Alan Smithee and his Kin
There is a long history of allowing a disenfranchised director to have their name removed from a work that they feel no longer represents their efforts. Having their name as director replaced by a fictitious one protects the director's reputation in perfect unison with the traditional protections of the Right of Appellation.
Moral Rights are all around us. Attorneys shouldn't be afraid of dealing with them directly. Creators should be aware of them and what they are there to protect. Reputations should be protectable. Just how to do it? Well, it depends...
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