Reconciling the Moral Rights of Authors with the First Amendment Right of Free Speech

91 Pages Posted: 23 Jan 2007 Last revised: 5 Dec 2007

See all articles by John T. Cross

John T. Cross

University of Louisville - Louis D. Brandeis School of Law

Abstract

During recent years, there has been a debate over the constitutionality of a moral rights regime in the United States. Although this debate has focused on Congress's powers, another issue lies largely unaddressed: the question of whether moral rights law might violate the First Amendment. Recent Supreme Court rulings sustaining copyright against a free speech challenge do not necessarily apply to the question of moral rights.

This article explores the issue, and concludes that most of the moral rights currently in force satisfy the limits of the First Amendment. The discussion considers both the federal moral rights set out in VARA and other statutes and state moral rights laws. Unlike the few others who have addressed the subject - most of whom seem to assume that a single analysis applies to all moral rights - the article explores several First Amendment doctrines, including commercial speech, defamatory speech, and content-neutral speech.

Keywords: moral rights, copyright, free speech, first amendment

JEL Classification: K39

Suggested Citation

Cross, John T., Reconciling the Moral Rights of Authors with the First Amendment Right of Free Speech. Akron Intellectual Property Journal, Forthcoming, University of Louisville School of Law Legal Studies Research Paper Series No. 2007-17, Available at SSRN: https://ssrn.com/abstract=958964

John T. Cross (Contact Author)

University of Louisville - Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States
+1.5028520850 (Phone)

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