Authors’ Moral Rights after Death

Abstract

The protection of an author’s moral rights is recognized during lifetime. An author has at least the right to claim the authorship of her work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to her work, which would prejudice her honor or reputation. If an author’s moral rights are also to be protected after the author´s death - apart from any protection under copyright law - third parties are inevitably put on the scene, who may have their own ideas of which actions or behaviour are within the scope of what serves the author´s interests.

This article analyzes the consequences of moral rights after the death of the author under the monistic model of copyright under German law, Austrian law and the Revised Bern Convention. The prevailing view is that the author´s heirs are not bound by the deceased´s interests and may exercise the moral rights they inherited in any fashion they want to. The author argues, against the prevailing view, that: (1) legal successors are in a trustee-like position and bound by the deceased author's interests; and (2) the protection of moral rights can be asserted during the entire term of copyright protection. The article also finds that these consequences are consistent with the copyright regime in France - known as the birthplace of moral rights - but diverge deeply from the United States and its approach to moral rights under the U.S. Visual Artists Rights Act.

Keywords: moral rights, copyright law, Austria, Germany, France, USA, VARA, term of protection, postmortem, death, author