Moral Rights in the US: Still in Need of a Guardian Ad Litem

Abstract

Over ten years ago in the Cardozo Arts and Entertainment Law Journal, I inquired whether authors’ “moral rights” had come of (digital) age in the US. Ever-hopeful at that time, I suggested that then-recent legislation enacted to enable the copyright law to respond to the challenges of digital media might, in addition to its principal goal of securing digital markets for works of authorship, also provide new means to protect authors’ interests in receiving attribution for their works and in safeguarding their integrity. The intervening years’ developments, however, indicate that, far from achieving their majority, US authors’ moral rights remain in their infancy, still in need of a guardian ad litem. Nor is it clear what legal institution can assume that role. Judicial interpretation of the Digital Millennium Copyright Act underscores that text’s limited utility as a legal basis for attribution rights. Moreover, the US Supreme Court’s 2003 decision in Dastar v Twentieth-Century Fox has probably left authors worse off, because the Court removed recourse to the Lanham Trademarks Act as a source of attribution (and perhaps, integrity) rights. If statutes and caselaw afford no general basis of moral rights, might the convergence of contract law and digital communications yield agreements, private in form but public in impact, that collectively approximate attribution and integrity rights? This assessment of developments in moral rights in the U.S. since 2001 will first analyze the caselaw construing section 1202 of the DMCA, which prohibits removal or alteration of “copyright management information.” It will next summarize the damage Dastar has done to the development of moral rights. Finally, I will consider the extent to which online contracts and practices may supply an effective basis for the assertion of attribution and integrity rights. De facto implementation of attribution rights through digital watermarking and other means of incorporating authorship information in connection with the communication of digital copies or performances of work make possible the recognition of many levels of creative contributions, but without a legal obligation to credit creators, it is unclear whether authorship information will remain connected to the copies of their works. Regarding integrity rights, respect for the work as the author created it may, in the absence of enforceable legal or contract norms, yield to online users’ preference for “remix.” In that light, an alternative moral right of the author, proposed by Prof. Jessica Litman, and recounted in the previous AELJ essay, to compel comparison of the altered version with the original by obliging the modifying user to link back to it, is better than nothing. But, without a legal obligation to disclose alterations or link back to the original, the prospects for even this weakened integrity right do not presage imminent adolescence, much less a vigorous adulthood, for moral rights in the US.