What is actually the difference between copyright and moral rights?

Illustration by

James Merritt

Words by

Tom May

July 15, 2021

If you’re a freelancer, it’s vital that you pay attention to copyright for two reasons.

Firstly, because you may need to protect your own copyrighted work. And secondly, because otherwise you may end up infringing someone else’s copyright in the process of your work, and getting slapped with a lawsuit.

The basics of copyright are pretty straightforward (if you need a refresher, check out this gov.uk post). But if you're not in the mood to click that link, essentially copyright gives you rights in any work that’s new and original, whether that be a book, a film, a painting or even the design of a building.

But what sometimes confuses people is talk of ‘moral rights’. For example, at the front of most books you’ll see a sentence along the lines of ‘[Name] asserts his/her moral right to be identified as the author of this work in accordance with the provisions of the Copyright, Designs and Patents Act 1988.’ 

So what are moral rights, exactly? In this article, we’ll answer that question, and explain why creative freelancers should care.

 

Moral rights are part of copyright law

The first thing to understand is that moral rights are not separate from copyright law, but a part of it.

Copyright gives you two kinds of rights over your work. Firstly, you’re granted economic rights. These give you the right to profit from use of your work, and prevent other people from making money from it without permission.

So, for example, if you wrote a blog post and someone published it in a book or magazine without your permission, you’d have the right to sue them for compensation.

Secondly, copyright grants you moral rights, which protect your non-financial interests in your work. So rather than protecting your bank balance, they’re primarily about protecting your reputation. 

 

What do moral rights apply to?

Moral rights protect, among other things, literary works, artistic works, musical works, dramatic works and films.

However, they do not apply to sound recordings. This means that while a musician can assert moral rights over the music and lyrics of a song, they can’t assert moral rights over any particular recording of that song. 

There are four specific moral rights offered by UK copyright law, made explicit in The Copyright, Designs and Patents Act 1988 (other territories may vary). We’ll look at each of these in turn. 

  1. The right to attribution

You have the moral right to be recognised as the creator of a work. An obvious example is that if you write a book, you’d expect to see your name on the published edition.

There’s something important to remember, here, though. To be given the right to attribution, you have to first assert it.

So to take the book example, when you’re drawing up a contract with your publisher, you’d want a clause included that asserts your right to be identified as the author. Alternatively if, say, you were exhibiting a painting at an exhibition, you’d want some kind of sign on or near it, identifying yourself as its creator.

The name you wish to be identified by can be your own or a pseudonym; it’s up to you. And note that you only have to assert this right once, you don’t have to keep doing it (phew!).

Be aware, though, that there are exceptions. For example, attribution doesn’t have to be given if your work is featured in a newspaper or magazine, a reference book such as an encyclopedia, or if it appears accidentally in a film or broadcast. 

That said, if you work in the media or entertainment industries and are on the other side of this relationship, it’s always good practice to attribute creative work where you can; for example, attaching a caption in a newspaper article, or adding a credit at the end of a movie. (Plus, well, it’s just polite anyway.)

Note that the right to be identified only applies to works created after 1 August 1989, and does not apply to the authors of computer programs, computer-generated works, typefaces, or works protected by crown copyright.

 

  1. The right to object to false attribution

The second moral right you have as a copyright owner is a logical offshoot of the first. You have the right not to be named as the author of a work you did not create.

For example, if someone other than Banksy spray-painted a piece of street art and falsely signed it ‘Banksy’, they’d be infringing the famed graffiti artist’s moral rights.

It’s important to add, though, that for action to be taken, the falsely attributed work must have been publicly exhibited, broadcasted or distributed in some way. You don’t have to prove that the false attribution caused you harm or damaged your reputation, just that it took place.

False attribution is something you need to think about carefully when it comes to parodies. In 1998, for example, the politician Alan Clark won £250,000 in damages against the Evening Standard newspaper in London, after they published a spoof column titled ‘Alan Clark’s Secret Diaries’. The court held that the headline was a clear case of false attribution, and that the appearance of the real author’s name at the bottom was insufficient to counteract this.

 

  1. The right to object to derogatory treatment of a work

The way the above sentences is worded, it sounds like you can stop people criticising your work! But while that would be many creative freelancers’ dream, that’s not what it means.

In reality, it means you have the right to protect your work from being altered or distorted, in a way that ruins your reputation. An example might be if you wrote a play, went to see it performed, and found that the director had added a sub-plot that invoked racist stereotypes.

That said, this is a tough right to enforce, as you must prove your reputation has been damaged.

For example, in 2003 musician Andrew Alcee sued Warner UK, after they licensed one of his songs, and then overlaid it with rap lyrics by The Heartless Crew referring to violence and drug culture.

The judge, however, ruled against Alcee, on the basis that the rap lyrics were hard to decipher, and that he could present no compelling evidence that his reputation had been damaged.

Another case in 1996 was brought by the Private Eye cartoonist Bill Tidy, who’d entered into a contract with the National History Museum, to create a series of cartoons about dinosaurs to be displayed at an exhibition.

The cartoons he produced were 420 x 297mm, but the museum went on to reproduce them in a book at just 67 x 42mm. They also changed the background colour from white to pink and yellow. None of this was with Tidy’s consent.

However, the judge ruled that it was not obvious that this had damaged the cartoonist’s reputation. And the absence of witnesses to back up Tidy’s claim meant he had to rule in the museum’s favour.

Be aware that the same exceptions that apply to your attribution rights also apply here. This right also explicitly excludes translations of literary works, or arrangements or transcriptions of musical works involving nothing more than a change in key or register.

 

  1. The right to privacy of certain photographs and films 

The final moral right is quite specific. If you have commissioned a photograph or film for private purposes, then you have the right to prevent it from being made public. This right could be enforced, for example, to prevent a wedding photographer putting images of your happy day on their website or Instagram.

When moral rights don’t apply 

Moral rights sound great, don’t they? However in practice, a lot of the time freelancers don’t actually have moral rights in their work. Why? Because while moral rights can’t be sold, they can be ‘waived’. And many clients will insist on this when drawing up your contract.

Whether you resist this and insist on retaining your moral rights will vary from profession to profession. For instance, the National Union of Journalists recommends that you immediately write back and refuse any requests to sign away your rights, and the organisation offers help with drafting a response to such ‘copyright grabs’. In contrast, it’s quite normal for musicians to waive their moral rights when selling music to be used as soundtracks in movies.

Your approach will also depend on your level of experience and standing within your profession. For example, a young and keen photographer may be less concerned about their moral rights than kickstarting their career; while a veteran who’s in high demand will be in a much better position to push back. Either way, before you sign any freelance contract, make sure you check for any mention of waiving your moral rights, so you can make an informed decision.

Finally, be aware that moral rights don’t last forever. Like copyright in general, they persist for the life of the author plus 70 years, or just 20 years in the case of false attribution.

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