MORAL RIGHTS: THE AMERICAN VERSION•The concept of moral rights in copyright comes from French law—“droits moral” or “droits d’auteur”.•The concept is generally recognized throughout Europe and elsewhere, and is codified in the Berne Convention:

Independently of the author’s economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

• On this basis, the Berne Convention recognizes:1)The right to claim paternity of the work (the “right of

attribution”); and2)The right to the work’s integrity.

• In some countries, the moral rights last as long as the copyright; in others, they end at death.

• The U.S. government long fought to keep moral rights out of U.S. copyright, but, to accord with the Berne Convention, has afforded its own version of moral rights.

Gilliam v. American Broadcasting Companies, Inc.538 F.2d 14 (2d Cir. 1976)

THE VISUAL ARTISTS RIGHTS ACT•Following the U.S. joining the Berne Convention in 1988, Congress enacted the Visual Artists Rights Act of 1990 (VARA).•VARA grants the author of a “work of visual art”:•The right of attribution;•The right to prevent any intentional distortion, mutilation, or other modification of the work that would be prejudicial to his or her reputation; and•(In the case of works of art of “recognized stature”) the right to prevent destruction.

• A “work of visual art” includes “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author…”

• This does not include posters, maps, globes, charts, technical drawings, diagrams, models, applied art, motion pictures, books, magazines… (see 17 U.S.C. §106A).

• The rights under VARA (for works created after its effective date of 06/01/91) last for the life of the author.

Lilley v. Stout384 F. Supp. 2d 83 (D.D.C. 2005)

Martin v. City of Indianapolis192 F.3d 608 (7th Cir. 1999)

THE RIGHT OF ATTRIBUTION REVISITEDDastar Corp. v. Twentieth Century Fox Film Corp.539 U.S. 23 (2003)

PUBLIC PERFORMANCE & DISPLAY RIGHTS•Under the 1976 Act, copyright owners of “literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works” have a sole right to perform or authorize public performance of their works.•Copyright owners of sound recordings have a limited right to digital audio transmission of their works.•Copyright owners of “literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work” are granted a public display right.•Copyright owners of sound recordings and architectural works have no public display right.

PUBLIC PERFORMANCE•17 U.S.C. §101 To “perform” a work means to recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible.

• 17 U.S.C. §101

To perform or display a work ‘publicly’ means—(1) to perform or display it at a place open to the public or at any

place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Columbia Pictures Indus. v. Redd Horne, Inc.749 F.2d 154 (3d Cir. 1984)

Cartoon Network LP v. CSC holdings, Inc.536 F.3d 121 (2d Cir. 2008), cert. denied, 129 S. Ct. 2890 (2009)

PUBLIC DISPLAY•17 U.S.C. §106 To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or author audiovisual work, to show individual images nonsequentially.

• Public display, distinguished from performance, only rarely arises in legal cases, largely because of a clause of §109(c):

Notwithstanding the provisions of section 106(5), the owner of a

particular copy lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to display that copy publicly, either directly or by the projection of no more than one image at a time, to viewers present at the place where the copy is located.

• This does not apply to rented or loaned copies.

• So there are effectively two means of violating the public display right:

1)By displaying a work illegally copied; or2)By publicly displaying the work at a place other than where the

copy is located.• The issue of public performance and display includes

transmission via the Internet and other computer networks.• Usually, Internet copyright issues turn on the reproduction

right, but posting a work on the Web may involve the rights of reproduction, public distribution, and public display, which can lead to complications.

Perfect 10, Inc. v. Amazon.com, Inc.508 F.3d 1146 (9th Cir. 2007)