Published on May 9th, 2014 by Alan L Sklover
Question: Dear Alan: After four months between jobs, I am thrilled to receive a job offer from a good company. They have sent me an agreement to sign that seems fine with me. However there is one paragraph that says:
“To the extent permitted by applicable law, you hereby waive any and all Moral Rights you may have, including the rights of paternity, integrity, disclosure and withdrawal.”
Sounds frightful. I am at a loss. What does this mean?
Answer: Dear Jenelle: You probably have nothing to worry about. While it sure sounds ominous to give up anything “moral” including “paternity” and “integrity,” in the law of most countries and in the practical world at most companies this is usually not a significant problem. First I will describe “Moral Rights” for you, and then I will explain how they affect, or might affect, you at work.
1. What are “Moral Rights?” No doubt you have heard of the word “copyright.” That is, as the word implies, “the right to make a copy.” In the law of many countries, there are other rights, as well, that are reserved for “creative people,” usually meaning authors and visual artists, namely the right to control some other aspects of the fate of their creations. These are “moral rights.”
In some countries and states, these additional “creative” rights are written into statutes, that is, laws passed by legislatures. In other countries and states, these additional “creative” rights are not written into statutes, but instead are simply recognized by Courts. Where “moral rights” are not written into statutes, their “boundaries” are not clearly delineated.
The concept of “moral rights” arises from a belief that there is something very special between a creative person and his or her creation, something akin to the special relation between a mother and her child, that must be respected, preserved and protected. Moral rights are not monetary in nature, but rather they are personal and reputational. Sometimes the French words “Droit Moral” are seen used in place of “Moral Rights.”
While moral rights for many years were attached only to visual images and written words, in more recent years we have seen more and more claims of “moral rights” to digitally creative works, such as graphics, logos, written code and animations.
2. The most common kind of Moral Rights relate to (a) “integrity, and (b) attribution.” Moral Rights relate to certain rights of creative people. They may include (i) the right of the creator of the work to receive credit for the creation (“attribution”), (ii) the right of a creator of the work to prevent his or her creation from being altered without the creator’s consent (“integrity”), (iii) the right to determine how much or in what manner the work is reproduced (“paternity”), and (iv) the right to determine how or in what places the creative work is displayed (“disclosure”) or displayed at all (“withdrawal.”) Incidentally, a creative person is also considered to have a moral right not to be associated with a creative work if he or she does not want to be.
3. Who has Moral Rights? A creative person is considered to have moral rights in his or her creative work regardless of who owns that work. Moral rights are not transferrable, and end upon the passing of the creative person. Even if the author has conveyed away the ownership of a work, or the author’s copyright in it, the author retains the moral rights to the work. Authors may, however, waive their moral rights by doing so in writing. (Jenelle, that is exactly what your prospective employer is asking you to do right now in your employment agreement.)
I don’t know too much about Australian law, other than that it is based on English law, as is American law. In the U.S. a federal law known as the Visual Artists Rights Act of 1990 (commonly called “VARA”) provides for “Moral Rights,” but the protections afforded by that law apply only to works of “visual art” which include paintings, drawings, prints, sculptures, and photographs.
4. Why do employers care about “Moral Rights” at work? Generally speaking, the things that an employee “creates” during the period of employment – including perhaps writings, drawings, computer codes, musical works or photographs –are presumed to be owned by the employer. So, the employer can use and sell those creative works, or license the copyright relating to those works to others.
However, the employee (whether still employed there or not) might one day just come back and say, “Hey, I created that work, and I have ‘moral rights’ in and to that work. So, whoever now owns it, (a) I insist I get credit for it, (b) I don’t want anyone to modify or alter it, and (c) I don’t want it exhibited unless it is in a round purple frame.” That is to say, the employee might seek to exercise his or her moral rights to that creative work, and the Courts just might uphold those moral rights. For an employer, this can be summed up in one word: Ouch!
It is for this reason, and because moral rights are now more often claimed in a wider variety of “creative works,” many employers are insisting on a written waiver from all of their employees – both creative and uncreative, alike – of any and all moral rights they may now or in the future have in any kind of creative work. That is exactly what your prospective employer is doing now to you, and probably to every new employee it hires.
It is kind of funny: most employers, themselves, have no idea what “moral rights” are, and most of their attorneys are, likewise, without a clue on this subject. Still, they ask for them to be waived, “whatever they are.” If you are not a creative person who creates creative things for a living, you have nothing to worry about. Even if you are such a person, it is quite rare in my experience that you will seek to exercise such moral rights.
On the other hand, now that you know what “moral rights” are, and you might find them valuable to you, it is more likely you can stand up and exercise them. For the employee who now – after reading this blog post – knows more his or her greater rights, and can now exercise them, I say, “Go for it!”
Want to have or share ownership or authorship rights in creative works you create? We offer Two Model Memos Requesting Ownership/Authorship Rights in what you create at work. If you do, just [click here.] They show you “What to Say, and How to Say It.”™ Delivered by Email – Instantly!
Jenelle, thanks for writing in from “down under.” And thanks, too, for letting me explain something to my blog family that I have been wanting to write about for a long, long time.
My Best to You,
P.S.: Don’t forget: we offer Model Letters, Memos, Checklists and Form Agreements for almost every workplace issue, concern and problem that requires your smart navigating and negotiating. They show you “What to Say, How to Say It.™” Want to see our Entire List? Just [click here.] Delivered by Email – Instantly!
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