Copyright law is based on property law. It evolved over time and recognized more and more economic rights, such as those of music creators to collect on sound recordings and public performances. But original copyrighted material may arguably possess certain inalienable personal rights that supersede any economic right. In many European countries, for instance, a droit moral is in play when a wholly original work is fixed in a tangible form. This moral right makes the work inseparable from its creator, for the work is seen as embodying that person’s personality or “creative soul”.1 In effect, this standard allows a higher degree of artistic protection and exists independently of economic copyright. It also gives European creators much more veto control in the distribution of their work than is allowed in the U.S.
An author of an original work in a country where moral rights are recognized will always be protected, even in cases of works for hire or transfers of copyright share. And there are four basic considerations associated with droit moral: first, there is the right of disclosure, i.e. determining when a work is ready for release, if ever; second, there is the right of retraction, i.e. removing a work from public circulation; third, there is the right of attribution, i.e. the paternity of the work; and, finally, there is the right of integrity.
The integrity right merits its own discussion. It allows the creator of a work “to prevent presentation of a work in a derogatory manner contrary to the intentions of the creator.”2 This has many applications today. One example is a composer objecting to the usage of a sample in a hip-hop recording, such as Newton vs. the Beastie Boys for Pass the Mic. Another is a songwriter protesting usage of their work at a political rally for a cause that they disagree with, as happened with Neil Young’s recent objection to Donald Trump for playing his Rockin’ in the Free World.
While droit moral has flourished abroad, it has not made a dent in the United States, where domestic protection for creators of original work does not extend for the most part beyond the six exclusive economic rights embodied in 17 U.S.C § 106 (1) through (6). Therefore, despite being able to receive financial compensation and exercise partial control for derivative works, synchronizations, public display, public performances, reproductions and distributions of their content, creators of original works are only minimally able to control the context in which these uses occur.
Given that the United States was a signatory of the Berne Convention that granted creators of original work specific moral rights, this is odd. Initially, when the U.S. became a member party of Berne in 1988, it was determined by congress that precedents in current legal code and common law were sufficient to adhere to Berne, guaranteeing the rights of both attribution and integrity to an author of an original work.3 As for Berne, the period of time to which these rights applied was not specifically laid out in the convention, but it was suggested that they last for either the length of time afforded to economic copyright, or at least as long as the work’s original creator lived.4 The Berne convention also lacked a universal set of application standards and allowed member countries to enforce the law as they saw fit.
The World Intellectual Property Organization Performances and Phonographs Treaty of 1996 (WPPT), to which the U.S. was also a signatory member, explicitly included musicians, songwriters, performers, and producers as parties that had moral rights to compositions and sound recordings.5 Again, the United States has been reluctant in its application of WPPT, and has only loosely, if ever, enforced it. This has resulted in some American musicians being unable to claim moral rights against misuses of their work domestically, seeking redress in international court.
Moreover, international artists in the United States are not receiving the same rights afforded to them in their home countries. Due to the increasingly instant and globalized nature of information sharing, the issue has become pressing. American copyrighted content is shared abroad instantly, and international content is digitally imported constantly, each being subject to different rights.
Despite many examples abroad, including Canada, New Zealand, France, and, more recently, a buy in by the United Kingdom, moral rights are extended only towards works of visual art in U.S. legal code. 17 U.S.C. § 106 (A) or, the Visual Artists’ Rights Act of 1990 enables a creator of a work of visual art to control attribution and prevent misappropriations of their work, which may be harmful to the artist and/or their body of work.6 But that is where it stays, and the law does not generalize to other means of creative expression.
As such, artists like Neil Young, Aerosmith, and R.E.M, all criticized usage of their work by certain political figures and have been largely unable to intervene with the courts. When questioned about Trump’s usage of Young’s Rockin’ in the Free World, a representative of Trump’s campaign rightly claimed that they had received the necessary licenses to publically perform the work legally.7 Indeed, so long as the public figure in question only publicly performs and or broadcasts a song in venues and through stations that are in possession of the relevant public performance blanket licenses, they cannot be legally stopped based on the composers’ political or personal opposition to their views. As such there have been rampant miscommunications and public relations gaffes in the current election cycle, due to the lack of integral protection afforded to musicians under copyright law. This creates a double standard wherein a visual artist may prevent a political figure from appropriating their works of art for the purpose of their campaign based on principle alone, but a musician may not.
Digging deeper, we see that, according to ASCAP’s Using Music in Political Campaigns, a campaign needs to contact a song’s publisher, as well as the master recording owner in order to obtain the relevant licenses for usage of songs in a campaign video. Not so for campaign events held only through licensed values and channels, where a blanket public performance license for the campaign is what is needed.8 As the right to public performance is a compulsory one, musicians and composers can do little more than denounce politicians or else make loose claims at defamation when they are in disapproval with public performances of their work.
In this case, like others, a lack of moral rights protection in the United States is reflective of the nature of US intellectual property law, which is meant to promote diffusion and serve the strongest economic interests at play, at the expense of the actual creators of content. The failure of terrestrial radio to recognize public performance rights in sound recordings is yet another example: neighboring rights prevalent in Europe and in most of the developed world are held hostage in the United States by the lobbying power of broadcasters. Intellectual property law in the United States, in short, is at best outdated and limited in its scope; at worst, and this is current practice, it ignores the right of artists not to be manipulated for a cause they disagree with as well as shortchanging their collections on public performances.
Examples of artists that successfully argued for a violation of their moral rights are easy to find abroad. When French center-right political party UMP (Union For a Popular Movement) publically performed “Kids”, a 2009 rock song by American band MGMT at a campaign event, they faced immediate legal action. Upon establishment that the UMP had not obtained permission to use the song, the party was made to pay a €30,000 ($32,644) settlement for unauthorized usage based on the integrity rights of its creators.9
US artists have benefitted too, it must be said, from the lack of moral rights enforcement. Jay-Z and Timbaland recently faced charges of copyright infringement for their usage of “Khosora Khosara”, an Egyptian film music excerpt from the 1960’s used in their 1999 hit Big Pimpin’. Jay-Z and Timbaland had obtained the proper licenses from EMI for $100,000 but Osama Ahmed Fahmy nephew of the work’s creator, Balign Hamdi, contended that his moral rights had been circumvented in the process. Fahmy asserted that he did not approve of a usage of his uncle’s work in a song celebrating promiscuity and as Hamdi’s heir, he should have been consulted before the sample was used.10 This case, hinging on the legitimacy of moral rights, was quickly dismissed in the Los Angeles courtroom, with the judge citing that the plaintiff had signed away economic rights to the work, and that he could not claim moral rights violations outside of Egypt.11
In rap and hip-hop, where sampling can create an entirely different context for a song, the actual enforcement of moral rights could therefore create problems for sellers if the Berne Convention and the WPPT Treaty had more bite in US Courts. If the Roy Orbison Estate exercised its moral rights in the case of 2 Live Crew’s sampling of Oh, Pretty Woman, their song use could have been stopped. Instead, the case went to the Supreme Court, came down to an issue of fair use, and the ruling was in favor of 2 Live Crew based just on economic rights. Legislators, actually, seem concerned that moral rights can create a critical mass of copyright suits within the court system.12
Nevertheless, overall it seems right that the law should protect creators when reproducing or broadcasting music performances. Individuals are at the core of a modern market economy, and sellers, including music creators, cannot be forced to march to market against their will. Moreover, the principle of a people’s self-determination is at the core of international law and dispute resolution. It is therefore strange that, in the United States, moral rights are such a side story in the intellectual property trade. Freedom of speech and uncensored lyrics are all very good, but without moral rights on the table the rights of musicians are being compromised.
By Spencer Ritchie
ASCAP. (2015, 01 01). Using Music in Political Campaigns: What You Should Know. Retrieved 12 8, 2015, from ASCAP: http://www.ascap.com/~/media/files/pdf/advocacy-legislation/political_campaign.pdf
Bird, R. C., & Pinte, L. M. (2007, 01 01). \\server05\productn\B\BIN\24-2\BIN203.txt unknown Seq: 1 18-JUL-07 16:39 PROTECTING MORAL RIGHTS IN THE UNITED STATES AND THE UNITED KINGDOM: CHALLENGES AND OPPORTUNITIES UNDER THE U.K.’S NEW PERFORMANCES REGULATIONS. Retrieved 12 7, 2015, from Boston University: https://www.bu.edu/law/central/jd/organizations/journals/international/volume24n2/documents/213-282.pdf
Chandler, A. (2015, 10 14). Can A Jay-Z Song Violate Your Moral Rights? Retrieved 12 8, 2015, from The Atlantic: http://www.theatlantic.com/entertainment/archive/2015/10/can-a-jay-z-song-violate-your-moral-rights/410560/
Harris, L. E. (2011, 01 01). Moral Rights in Works of Visual Art in the US. Retrieved 12 8, 2015, from http://www.copyrightlaws.com/wp-content/uploads/2010/01/Moral-rights-in-the-US.pdf
Newman, J. (2015, 06 17). Neil Younh, Donald Trump Spar Over ‘Rockin’ in the Free World’. Retrieved 12 7, 2015, from Rolling Stone: http://www.rollingstone.com/music/news/neil-young-donald-trump-spar-over-rockin-in-the-free-world-use-20150617
Rosenblatt, B. (1998, 03 01). Moral Rights Basics. Retrieved 12 8, 2015, from Harvard Law School: https://cyber.law.harvard.edu/property/library/moralprimer.html
Sisaro, B. (2015, 10 21). Jay-Z and TImbaland Win Copyright Lawsuit over ‘Big Pimpin’ Trial. Retrieved 12 6, 2015, from The New York Times: http://www.nytimes.com/2015/10/22/business/media/jay-z-and-timbaland-win-copyright-lawsuit-over-big-pimpin-sample.html?_r=1
World Intellectual Property Organization. (2015, 01 01). WIPO-Administered Treaties. Retrieved 12 8, 2015, from WIPO:http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=16
1. (Bird & Pinte, 2007)
2. (Rosenblatt, 1998)
3. (Bird & Pinte, 2007)
4. (Bird & Pinte, 2007)
5. (World Intellectual Property Organization, 2015)
6. (Rosenblatt, 1998)
7. (Newman, 2015)
8. (ASCAP, 2015)
9. (The Conexion, 2009)
10. (Chandler, 2015)
11. (Sisaro, 2015)
12. (Bird & Pinte, 2007)