American Law Analogues of the Author's "Moral Right"

Abstract

Professor Kaplan has suggested that there exist in American law various of protection cognate to that have grown up in an unprincipled way outside the federal statute.1 Since the federal statute does not itself speak in explicit terms about rights, American authors must rely on Professor Kaplan's forms of protection cognate to copyright to confer benefits that resemble the benefits available in France under the right concept. To assess the prospects of future interaction in the moral realm between the French and American law of intellectual property, it will be necessary, first, to set forth the teaching about the French doctrine on rights provided by M. Sarraute;2 second, to identify those non-statutory cognates in American law that confer protection analogous to that conferred by the French right; and third, to determine whether the continued existence and development of these analogues is threatened by the contemplated revision of the federal statute or by recent judicial pronouncements describing the pre-emptive quality of existing national policy. I. THE RIGHT OF DISCLOSURE The right in France, according to M. Sarraute, reflects the intimate union between an author's personality and his work. It protects this union during the period of creation as well as after the work has been made public. During the period of creation the right concept gives to the author the right without limitation of time to determine when the work has been realized; after publication the concept gives to the author the right to have his authorship acknowledged, the right to have the integrity of his work respected and the right, in the case of publishing contracts, to withdraw the work. In French law, the right protects the author and his work during the period of creation. Until he determines that his work has matured he can refuse to entrust it to one who has contracted for its completion, and he can keep others from exploiting it after he has abandoned or discarded it, at least where it remains identified as a product of the author's creativity.