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29 Comm. Law. 25 (2012-2013)
Enforcing Moral Rights Abroad

handle is hein.journals/comlaw29 and id is 25 raw text is: Enforcing Moral Rights Abroad PETER TRAVIS In February 2012, an Australian court awarded damages to Ameri- can recording artist Armando Perez (also known as Pitbull) because a disc jockey's alteration of his hit song Bon, Bon was prejudicial to his repu- tation and honor.' Perez v. Fernandez was a vindication of Pitbull's moral right to integrity of authorship in the musical and literary work comprising his song. Generally speaking, moral rights protect the investment of art- ists of their personality and creativity in their work by ensuring proper attri- bution of authorship and protecting the work from derogatory treatment. These rights are personal to the artist and persist even after artists have given away all copyrights to their work. In the United States, only visual artists such as painters, drawers, sculp- tors, and exhibition photographers enjoy moral rights. In many other jurisdictions, however, virtually all cre- ators of copyrighted work, including musicians and recording artists, are granted enduring moral rights. This means that successful U.S. artists will find that as their work crosses interna- tional borders, they acquire rights that they do not have at home. The Perez decision represents a recent example of a U.S. musician and recording artist flexing his moral rights abroad.2 The moral rights stat- ute applied by the Australian court, which is found in the Australian Copyright Act 1968, echoes similar statutes enacted in the United King- dom, Canada, and many other parts of the world. The Australian court's approach to Pitbull's claim suggests that those moral rights, particularly the moral right of integrity, may be more valuable than previously understood. Rather than focusing on whether there has been deroga- tory treatment of the artist's work, the Australian court appears to have Peter Travis is a barrister with Roma Mitchell Chambers in Brisbane, Australia. been willing to assume derogatory treatment if any material alteration of the work might result in the type of injury to the artist that is traditionally remedied by claims for defamation, injurious falsehood, passing off, or unfair business practices. Although this development presents a poten- tial boon for international artists, it means that U.S. copyright owners and their licensees should tread carefully when exploiting copyright outside the United States. Moral Rights Moral rights are understood as rights inhering in the artist's per- sonality, transcending property and contract rights and existing inde- pendently of the artist's economic interest in his work.3 The principal moral rights are those of attribution and integrity. The right of attri- bution is concerned with authors' rights to be recognized as the work's authors; to hide the fact of their authorship; to prevent their name being attributed to works of others; and to prevent others being credited with authorship of their work.' The right of integrity is concerned with protecting the author's honor or reputation against derogatory treat- ment of the work.' The doctrines underpinning moral rights were born in the European civil law tradition.6 But since those rights were incorporated into the Berne Convention in 1928,7 statutory moral rights have been enacted in jurisdic- tions that were previously hostile to such ideas, including the United States, the United Kingdom, Ireland, Australia, and New Zealand.8 In the United States, for exam- ple, the federal government enacted the Visual Artists Rights Act of 1990 (VARA)9 shortly after ratifying the Berne Convention. VARA grants art- ists moral rights of attribution and integrity in relation to paintings, drawings, prints, sculptures, and pho- tographs created for exhibition.0 Those rights last during the artist's lifetime and survive transfer of own- ership of the work or assignment of the artist's copyright. VARA rights cannot be transferred or assigned, but the artist can waive those rights with respect to specific uses of an identi- fied work.2 Prior to the enactment of VARA, some states granted similar moral rights with respect to fine arts.'3 The United Kingdom,14 Ireland,5 Australia,6 and New Zealand7 have enacted statutory moral rights, includ- ing rights of attribution and integrity. In large measure, the content of moral rights granted in those countries are similar to the corresponding rights granted under VARA. Unlike the United States, however, these coun- tries have not limited the grant of those rights to creators of specific fine art. Instead, they have granted attribu- tion and integrity rights to the authors of literary, dramatic, musical, and artistic works. Moral Right to Integrity of Authorship in Australia Under the Australian Copyright Act, the right of integrity of authorship is the right not to have the work sub- jected to derogatory treatment.'8 As for literary and musical works, derogatory treatment means doing anything to those works, including distortions, mutilations, or altera- tions of the work, that is prejudicial to the author's honor or reputation.9 The Australian right of integrity thus reflects the concern shared in the United States (for visual artists), the United Kingdom, and elsewhere with protecting the honor and reputation of authors from derogatory treatment of their works. Those who subject a work to derogatory treatment do not infringe the author's right of integrity if they establish that the treatment was rea- sonable under the circumstances.2° The factors taken into account include the nature of the work, the purpose for which it is used, and the June 2012 El Communications Lawyer El 25

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