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Moral Rights in Work for Hire

5 minute read

When it comes to copyrights, most folks probably think of the economic rights. These are the rights to control the copying and publishing of a work. The moral rights associated with a work are often forgotten, and this can cause unexpected problems.

The source of copyrights and moral rights is the Copyright Act. (the “Act”). Under the Act, copyrights and moral rights apply to “every original literary, dramatic, musical and artistic work”, and “literary” work has been broadly interpreted to include everything from novels, blogs, and essays to computer source code and compiled software programs. In today’s digital world where everyone is a “content creator” and where, as Mark Andreessen famously said, “software is eating the world”, works to which copyright applies are being created everywhere, by everyone, and affect every organization. Copyrighted works are not just fundamental to the bottom line of many organizations, they are often the public face those organizations.

Copyright is presumed to belong to the author, though an exception is made for work made in the course of employment (though what is and is not made in the course of employment is sometimes an open question). Copyright can be assigned to another person in writing, so it’s good practice to include an assignment of copyright in any employment or independent contractor contract where copyrighted works may be created.

Moral rights are somewhat trickier than copyrights, and include the rights to attribution, integrity, and association of an author to the work. Moral rights are personal rights that belong to the author personally and can’t be assigned. Moral rights “treat the artist’s œuvre as an extension of his or her personality, possessing a dignity which is deserving of protection” (Théberge v. Galerie d'Art du Petit Champlain inc.). Moral rights are long lasting rights, with the same term as copyrights under the Act. This is currently the life of the author plus 50 years, though after ratification of CUSMA this will be likely be extended to the life of the author plus 70 years.

The attribution and association rights give the author the right to be associated with his or her work, and to have the work properly attributed. For example, if a former employee wrote a blog to promote a company’s services that was published on the company’s website under that author’s name, the company might find itself being sued for breach of the author’s moral rights if it were to delete the author’s name and replace it with the name of an employee who wasn’t the author but is still with the company.

While attribution and association may be easier rights to delineate, the “integrity” of the work can be more fluid. One of the more famous examples had to do with the sculpture called “Flight Stop” at Eaton Centre in Toronto in the 1980s. This sculpture is composed of some sixty Canada geese hanging from the ceiling of the atrium in the mall. In Snow v Eaton Centre Ltd., Michael Snow, the sculptor, sought and obtained an injunction to prevent Eaton Centre decorating the geese for Christmas on the grounds that the decorations offended the integrity of and distorted his work. In 2017, similar arguments erupted in a debate regarding the “Fearless Girl” statue placed in front of the Charging Bull statue in New York City. Here the debate was over whether or not the placement of Fearless Girl changed the integrity and meaning of the Charging Bull. While that dispute stayed in the court of public opinion (the US and Canada differ on the law of moral rights), it highlighted moral rights issues with regard to public art for municipalities.

Waiting for a court to determine what may or may not alter the integrity of a work can be costly and result in unacceptable delays, even if the company eventually proves successful at trial. A software company may miss getting to market early if a programmer insists that his or her source code can’t be modified because it would harm the integrity of his or her work. Likewise, a video game company can’t risk missing a ship date because a concept artist feels that certain models don’t reflect the integrity of his or her character design. Such delays are life and death where being first to market is the priority.

While moral rights are personal and can’t be assigned, they can be waived. This is an important solution to navigating moral rights in works generated by employees and contractors. And because any assignment of copyright is not an automatic waiver of moral rights, the waiver must be express. Certainty in the ownership of copyrights and the freedom to use the copyrighted works created by one’s employees and contractors is paramount in building value and protecting the bottom line, and a clear record of ownership and waiver is the best way to demonstrate value for any future business transaction.

Contact a Lerners business lawyer to find out how we may assist in navigating any intellectual property or employment matter.

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Mark H. Evans

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