Authors, Attribution, and Integrity: Examining Moral Rights in the United States

The U.S. Copyright Office has completed its comprehensive study of attribution and integrity rights in the United States. The report presents an extensive review of the U.S. moral rights regime, exploring the current state of attribution and integrity interests—particularly with respect to legal and technological changes since the United States joined the Berne Convention thirty years ago. This report also presents recommendations for enhancing existing moral rights protections should Congress decide that potential changes are desirable.

The term “moral rights” comes from the French phrase droit moral and generally refers to certain noneconomic rights that are considered personal to an author. Chief among these rights are the right of an author to be credited as the author of their work (the right of attribution) and the right to prevent prejudicial distortions of the work (the right of integrity). While these rights have a long history in international copyright law, the United States did not consider formal adoption of moral rights until it prepared to join the Berne Convention, which it ultimately did in 1989.

More recently, moral rights were part of the congressional copyright review held in 2013–2015. During a July 2014 hearing of the Subcommittee on Courts, Intellectual Property, and the Internet of the House Judiciary Committee, the ranking member of that subcommittee and the chairman of the full committee both indicated their interest in knowing more about how current laws were working at the time with respect to moral rights issues. The Register of Copyrights recommended further study of moral rights under U.S. law in her testimony April 2015, and at that hearing, the ranking member of the House Judiciary Committee requested this study. As part of the preparation for this study, the Office co-hosted a day-long symposium on moral rights in April 2016 to hear views about current issues in this area. The Office issued a notice of inquiry for public comments on January 23, 2017, and interested parties filed sixty-two comments by the March 30, 2017 deadline.

In reviewing the U.S. framework regarding moral rights protection, the Copyright Office identified three important principles: respecting foundational principles of U.S. law (including the First Amendment, fair use, and limited terms), appreciating the importance creators place on their attribution and integrity interests, and recognizing and respecting the diversity among industry sectors and different types of works.

The Copyright Office concludes that the U.S. moral rights framework (which includes a variety of federal and state laws) continues to provide important protections, despite there being some room for improvement. Should Congress wish to strengthen this framework, this Report provides possible avenues to do so. Possible legislative changes for consideration include amendments to the Visual Artists Rights Act (VARA) and the Lanham Act to better protect attribution and integrity interests, along with suggestions to expand authors’ recourse for removal or alteration of copyright management information in section 1202 of Title 17. Congress may also wish to consider adoption of a federal right of publicity law as a means to reduce uncertainties and ambiguities created by the diversity of state right of publicity laws. The Office further suggests some areas where preferred interpretations of judicial decisions could boost the landscape of protection for authors.