More On Moral Rights
The copyright you own as a songwriter consists of economic rights and moral rights Economic rights in a song – the money-making ones – are what gets traded Moral rights in a song – the inalienable and untransferable ones, the ones that a business corporation may wish you to surrender in order to be allowed the full and unfettered ability to exploit the economic rights you’ve traded – are what gets protected.
We'll return to their contentiousness in a bit - but first, let's look at them a little closer.
2. Four Elements Of Moral Rights
The inalienable moral rights that you as an artist have vested in your own work are recognised in law as being made up of the four constituent rights called paternity, integrity, divulgation and withdrawal.
- The Right of PaternityThe right to have your name as author associated with your songs.
- The Right of IntegrityAssumes that what you create as an artist is an expression of your personality, and that derogatory use or distortion or misrepresentation of your song messes with your identity and honor.
- The Right of DivulgationYou have the absolute right, the final word, over when and whether your song is complete and finished and ready to be foisted on an unsuspecting world.
- The Right of WithdrawalYou have the exclusive right to withdraw a song and to subsequently change it.
3. The Power and Contentiousness of Moral Rights
There are two things I want you to take note of from the above four elements:
Their enormous power. They give you complete and de facto ownership and control over your product and the ways in which it is used. With them, you have proper righteous rule over your own stuff. Without that real essential power and control, your ownership of your own work will be in name only, and your only right will be to get paid
You are able, I hope, to thus easily see and understand the reasons why this issue is such a big deal and becomes so highly contentious. To all those music publishers and record companies and media conglomerates whose sole interest in your songs lies in their potential to generate money, your moral rights are seen as an unnecessary obstacle to doing business.
That's why they prefer to have them waived.
Now, a lot of people in the business likely disagree with the Lazzerini opinion. They may claim that the surrender of moral rights is simply part of the cold reality of dealing professionally in the music business, and that making money is what it's all about anyway, But for me, to take an admittedly extreme example, I might still prefer that synchronisation rights for my songs simply NOT be licensed to a promo campaign for a fascist al-Qaeda reunion with the paedophile wing of the Klu Klux Klan.
Hypothetically speaking, of course.
You may otherwise just prefer that your stuff didn't get hacked about or messed with without your consent by some unknown brute in uncool ways that totally compromise the integrity of your work.
Moral rights are of fundamental and crucial importance.
You should take care of them.
How can you?
4. The TRIPS Sell-Out Of Your Moral Rights
There are no particularly special radical ideological credentials needed to register the basic clinical observation that there is a predictable and fundamental incompatibility between the commercial thrust of the international copyright regime as driven by corporations, and the philosophy of moral rights. This corporate community of big-time bully-boy copyright holders, remember, are the same guys who negotiate the World Trade Organisation agenda. The flies in the ointment of copyright protection. Their interest spells trouble.
They're in it to make money and can't afford to bother with les pretensions d'artistes. The right of paternity causes no grief to anyone. Obviously no problem. The other three elements of moral rights are the real spanner in their works.
They don't want to have them protected.
Hence the TRIPS agreement, while stressing compliance with "the substantive provisions" of Berne (as quoted in Part 1 of this little series), also carries the bad news that signatories to the treaty .....
"will not be obliged to protect moral rights as stipulated in Article 6bis of that Convention."
So, on the one hand we have the generally recognised and accepted international status of moral rights as inalienable and unable to be sold or transferred while, on the other, we have member states of the W.T.O., courtesy of TRIPS, comfortably relieved of any obligation to protect them.
They can if they want - but they don't have to.
Given this contradiction, it becomes common practice for publishers or record companies to expect you to waive them.
But you don't necessarily need to.
5. The Python Position
When the US broadcaster ABC licenced Monty Python from the BBC (which, for the non-English amongst us, is supported by a user fee and hence refreshingly free of commercial advertising) they planned to edit out 6 minutes of each half-hour episode so they could more easily chop them up and slot-in their essential life-blood of money-making ads for deodorant, cars or panty-liners.
In response, Monty sued - well, in actuality, it was Michael Palin - to prevent this, on the grounds that the network's editing "impaired the integrity" of the work, was in breach of the agreed permissions, and that the deletion of scenes violated their moral rights.
Python's legal claim, the court agreed, found its roots...
"in the continental concept of droit moral, or moral right, which may generally be summarized as including the right of the artist to have his work attributed to him in the form in which he created it."
... and, since the ABC version "impaired the integrity of appellants' work and represented to the public as the product of appellants what was actually a mere caricature of their talents", they held that it did indeed constitute a violation of Monty Python's moral rights.
So even in American law, always historically reluctant to recognise moral rights, court decisions have more recently suggested that it is certainly possible to enjoy the benefits of moral rights, but that first you have to make sure that they are secured and protected in your contracts.
6. Protecting Your Moral Rights
With Python, of course, their original contract was with the BBC, and had clauses which preserved their moral rights, including the right to make alterations, and maintained that episodes had to be broadcast as written and recorded, in their entirety. Any subsequent deal the BBC then made to license the series into foreign markets could in consequence only be struck within the terms of the governing agreement with the Pythons. And so in fact ABC, tampering with those shows in that way, was presuming to exerciseg rights it never had in the first place.
You can work this way, too, by becoming a publishing company, protecting your moral rights in the deal with yourself, and then entering into third-party sub-licensing agreements with any of the stampeding hordes of other publishers hungry for a piece of your action.
If you're serious and professional about your songwriting it's a great way to go.
In my experience, it's a lot more straightforward dealing with other entities like publishers if you are another company rather than another solitary individual. You are able to cut a better deal all round.
Think about it.
7. Useful Links
Moral Rights In Copyright Law, by K. Agarwal & S.S. Sagar Priyatham, is a great article.
Part IV - The Shape Of The Deal
Discuss this article in our Music Forum.
About Colin Lazzerini
Except for the occasional mistaken spotty teen-aged outing – it was actually not until he was approaching my thirtieth birthday in foreign parts that he embarked upon performance with earnest commitment and real intent. Even then, a couple of busy decades slipped by between his first stumbling attempts at making original songs and his happy arrival at a truly satisfying level of craft-confidence and the ability to deliver professional goods.