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If I tag your house, do you have to keep it? A short word on Moral rights.

If you live in the USA (or France, or India) you can be forced to keep a work of art in tact, even it is painted onto the outside of your property. This is all down to the operation of moral rights.

Moral rights

Moral rights are sort of a sub-species of copyright. Whereas copyright is an author’s economic right in the exploitation of a work, and this right like any other property right is sellable and licensable; a moral right protects (in theory at least) the inalienable interest of an artist in their creative offspring. This interest often includes the right to maintain a work’s integrity. That is to say, an interest in the work remaining in situ and in one piece. It can also encompass various other rights, such as protection from derogatory treatment, the right to release a work into the public, the right to be identified, and so on.

Concepts like this sit uncomfortably with Common Law free-trade economic principles. Especially the bit highlighted in bold in the paragraph above, which is distinctly continental in flavour.

The application of these principles in court can be extremely controversial, as you can see from the Feb12 ruling of Cohen and others v G & M Realty LP (2018). A more readable version is available via the Independent. The case involved a number of graffiti artists successfully claiming damages for the destruction of their work by a New York property owner. There are other similar moral rights cases in various jurisdictions involving claims for: the removal of a work from a location, the destruction of a piece of work, and the use of a film score for distasteful political purposes.

Moral rights in your UK contracts

Needless to say, England has tried to avoid the clash between the freedom to deal economically in works and the inalienable rights of the creative. So, moral rights exist, but in an extremely limited fashion.

The most important of the moral rights afforded to an author here are:

  • The right to be identified as the author (so long as he asserts it and subject to various exceptions); and
  • The right to object to derogatory treatment of their work (subject to various exceptions).

Both of these rights can be waived by the author.

An example of a problem stemming from a failure to waive: you hire an artist to create your new logo, they assign the copyright to you, which is excellent. You then use the logo as an endorsement for a political campaign that they disagree with. They take action against you for supporting activities that they find abhorrent.

This scenario could have been avoided at the start by ensuring that a signed waiver had been obtained in the same document as the assignment.

Finally

Ensure that creatives waive their moral rights in any contract. Look out for the absence of these clauses and suggest them wherever possible. They may object, but at least the issue has been aired before any commercial harm has been caused. Speak to our IP experts to learn more about your moral rights.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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