Copyright and the Moral Right: Is an American Marriage Possible?

69 Pages Posted: 2 Dec 2005

Abstract

This Article explores the interplay between the 1976 Copyright Act and the moral rights doctrine. Although it was written prior to the enactment of the Visual Artists Rights Act, the limited nature of that statute does not significantly alter the analysis or position advanced herein. The Article recogizes that the content of any federal scheme adopted in this country for protecting a creator's personal rights will be influenced greatly by the 1976 Act. It examines the relationship between the 1976 Act and the moral rights doctrine, focusing on three distinct inquiries. The first section of this discussion explores the scope of protection for personal rights currently afforded by the copyright law and concludes that existing copyright law is an inadequate substitute for a cohesive moral rights doctrine. The second section examines the relevant statutory provisions, the legislative history, and judicial interpretations of the 1976 Act to determine the degree of compatibility between the copyright statute and the moral rights doctrine. This analysis demonstrates that, although the 1976 Act has a considerable amount of unrealized potential for protecting a creator's personal rights, the Act also contains some significant limitations, resuting from the recognition of interests conflicting with those of creators, that are likely to influence the scope of any moral rights doctrine adopted in this country. The last portion of this discussion examines whether section 301 of the 1976 Act, which governs preemption of other laws, precludes the adoption of the moral rights doctrine on a state level. Although section 301 does not preempt most forms of state protection for moral rights when such claims are within the framework of substitute legal theories, state statutes that attempt to provide comprehensive protetion for moral rights are vulnerable to preemption. Therefore, the most effective means of safeguarding a creator's personal rights in this country would be the incorporation into the 1976 Act of more provisions governing the special needs of creators distinct from their possible status as copyright owners.

This Article concludes with a proposal for amending the 1976 Act so as to implement an American version of the moral rights doctrine that would balance all the competing interests concerned in extending protection to the personal rights of creators.

Suggested Citation

Kwall, Roberta Rosenthal, Copyright and the Moral Right: Is an American Marriage Possible?. Vanderbilt Law Review, Vol. 38, No. 1, pp, 1-69, January 1985. Available at SSRN: https://ssrn.com/abstract=860324

Roberta Rosenthal Kwall (Contact Author)

DePaul University - College of Law ( email )

Center for Intellectual Property Law & Information
25 East Jackson Blvd.
Chicago, IL 60604-2287
United States
312-362-8131 (Phone)
312-362-5448 (Fax)

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