Waiver of Moral Rights

There are a number of compelling reasons for having a
waiver of moral rights in an Intellectual Property agreement.

Moral rights are recognized separately to copyrights and an assignment of copyright does not automatically include moral rights.

In fact, moral rights cannot be assigned!

paint strokes by artist

However, you can have a waiver of moral right and such a waiver can be in whole or in part.

If a company needs full control on how they wish to use creative work, they will be wise to include a provision in an agreement giving them the right to do so at their sole discretion.

In our free Work for Hire Contract we've added this provision and if you review the additional legal information below, it will become clear why there may be a need for it.

What are Moral Rights in a Work?

Although limited compared to copyrights, broadly speaking there are two distinct rights to the author. (Some countries break this further down into a number of categories.)
  • The right to the integrity of the work;
  • The right to be associated with the work - which goes hand in hand with the right against false attribution.

Where we understand "work" to be literary, musical, artistic, cinematographic and software creations.

So let's look at them in detail.

Moral Rights - The Right to the Integrity of the Work

Although this may be a non-economic right, it recognizes the right of the author to object to any alteration, adaptation, mutilation or distortion of the work if it would be detrimental or prejudicial to the honor or reputation of the author.

For example, if an artist did a sculpture of a nude and it is then used to display erotic underwear in a store window, the artist can seek remedies against infringement of his moral rights in various ways. We'll get to that in a minute.

sliced up Picasso painting

Waiver of Moral Rights - Implications to a Company

Moral rights may not apply to work made during an employment relationship or to "work made for hire" in countries that recognise this doctrine.

However, if a company purchases any creative work with the intent of using it in their creative campaigns, they do not want to have to consult with the artist (or even worse, have to get permission) whenever they change a concept or application of the creative work.

A company also needs to be sure that any works obtained from a third party (who owns the copyright) are free from any potential moral rights claims by the creators i.e. that written waivers are in place.

Why are Moral Rights Important to the Creator? The Right to be Associated with the Work

artist signatures

This entitles the author or creator to be credited or given attribution or be associated with the work. The author may choose to use his own name, a pseudonym or may elect to remain anonymous.

Attributing work to the wrong person or falsely claiming credit for work will constitute infringement of this right.

An author can also object if his name or work is used in conjunction with a product that may create an impression of endorsement.

But perhaps more importantly to an artist, is the right against false attribution. e.g. when a painting executed by another person is signed with a well-known artist's name (possibly to improve its value).

There are many instances where one can see correct author attribution:

  • For example, although a publisher may own the copyright in a work (by virtue of an employer/employee relationship or by assignment of copyright in a work by a freelancer) the name of the writer may appear as by-line in a news article.
  • Another example would be where you see the names of contributors to a software program appearing in opening of the software.

Why Must a Company Get a Waiver of Moral Rights?

The owner of copyright in a work may choose not to credit a person or persons for the work for a variety of reasons: impractical, too small a contribution, branding under the company's banner etc. The company should therefore get a signed waiver of this right from the creators to ensure it will be entitled to exercise these options.

Duration of Moral Rights

This varies greatly from one country to the next and can also depend on when such work was created. It may last for the lifetime of the artist, may be similar to copyright i.e. duration of the author's life + 70 years, or may be perpetual as in France.

Remedies against Infringement of Moral Rights

An author can demand (or get a court order for):

  • A public apology
  • Financial compensation
  • Removal / correction of false attribution
  • To cease and desist

Artists need to be aware of all their rights in law and should consider the implications before signing a waiver of moral rights.

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