The Doctrine of Moral Right and American Copyright Law--A Proposal
![handle is hein.journals/scal24 and id is 395 raw text is: THE DOCTRINE OF MORAL RIGHT AND AMERICAN
COPYRIGHT LAW-A PROPOSAL**
ARTHUR S. KATZ*
... there remains a percentage [of cases] not large indeed, and yet
not so small as to be negligible, where a decision one way or the
other, will count for the future, will advance or retard, sometimes
much, sometimes little, the development of the law. These are the
cases where the creative element in the judicial process finds its
opportunity and power.
CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 165 (1921).
* * * * *
Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic produc-
tion of which he is the author.
Art. 27 (2), Universal Declaration of Human Rights, 6 UNITED
NATIONS BULLETiN 6, 8 (No. 1 Jan. 1, 1949).
Prologue:
The raison d'etre of this article is best expressed when cast as the fol-
lowing proposition:
Proposed: That the doctrine of Moral Right be formally incor-
porated into American copyright law.
Every proposition is, in essence, the expression of a conclusion, which,
like faith, . . . is the substance of things hoped for, the evidence-of things
not seen. Inasmuch as the writer hopes that the doctrine of moral right
will shortly become a part of American copyright law, and in an earnest
endeavour to buttress that hope by demonstrating that the conclusion implicit
in the above proposition has a valid basis in law, he has written this article,
basing it upon the following theses:
(a) that the creator of a literary or artistic work2 has an intellectual
property right in such work which is absolutely, perpetually and uniquely
his to enjoy, either as part of any copyright he may have in his creation,
or independently thereof;
(b) that, while this creator's right is generally described as a moral
right, it is actually a branch (like the right of privacy) of the greater
right of personality; and
*[Of the New York Bar.]
** [This article was originally submitted in the Nathan Burkan Memorial Competition at
the School of Law, New York University, and was awarded first prize in that
competition for the year 1950-1951.]
'Hebrews 11:1. (All biblical quotations cited in this article are from the King
James version of the Bible.)
2The writer employs the terms literary or artistic work, or literary property
as a convenient method of designating those works of mankind which are the products
of intellectual effort and creative genius, whether the end result be sonnet or statue,
song or story, portrait or poetry.
In like vein, the term author is intended to refer to the creators of all forms
of art, and is not restricted to literature.](ViewImageLocal?handle=hein.journals/scal24&div=40&collection=&method=preview&ext=.png&size=3)
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The Doctrine of Moral Right and American Copyright Law--A Proposal
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