Legal Protections for Musicians – Part 2 – Moral Rights

23 January by Mark

Introduction

This is the second part of a series looking at the protections UK law provides to musicians for their work and looks at moral rights.

The first part dealt with copyright. This article looks at moral rights – which provide the artist with a right to be identified as the creator of material such as a song, and to object to any distortion or false or misleading portrayal of their material.

Moral rights can be extremely useful. For example, in 1993 George Michael was granted a pre-trial injunction by the Court of Appeal preventing the release of a medley of various Wham! songs called the ‘Bad Boys Megamix’. The Court found that the release of the ‘Bad Boys megamix’ would be in breach of Michael’s moral rights as it was capable of being distortion or mutilation of his work amounting to derogatory treatment.

What are moral rights?

The basis for moral rights is set out in the Copyright, Designs and Patents Act 1988 (the ‘CDPA’) and provide an artist with the following benefits:
  • The right to be identified as the author of a copyright work. This is known as the “right of paternity”.
  • The right to object to derogatory treatment of a copyright work. This is known as the “right of integrity” and an example is provided by the George Michael case above.
  • The right to privacy for films and photographs that you have commissioned.
Moral rights apply to literary, dramatic, musical or artistic works and films. This includes music, lyrics, original album artwork and music videos. Moral rights do not apply in the case of sound recordings, with the effect that whilst an artist can have moral rights for the music and lyrics to a song, no moral rights can be exercised in any recording of that song.

How long do moral rights last?

The rights of paternity, integrity and privacy last for the normal term of copyright, which is the life of the author plus 70 years.  The right to prevent false attribution is limited to 20 years after the death of the author.

Are there any limitations?

Yes. Moral rights do not apply in all circumstances. For example, where a work is created by an employee, the employer will generally own the copyright to that work. In this scenario the employee will only benefit from limited moral rights. This may be relevant to an artist who has, for example, signed a band agreement where the artist provides services to the band’s company or partnership as an employee.

The right of paternity also has to be ‘asserted’. This means that the artist has to ‘stake a claim’ to their moral right. For an artist this is usually achieved by specifying wording such as:

“The author has asserted his/her moral right in accordance with Section 77 of the Copyright, Designs and Patents Act 1988.”

The simplest way to assert a right of paternity is to ensure that it is clearly set out in any agreement in which you assign your copyright to any music or lyrics to a third party, e.g. a publisher. In respect of jointly written works, each artist must independently assert their right of paternity.

Moral rights cannot be assigned to a third party, e.g. to your publisher. However, moral rights can be waived by the artist, and this fact is often seized upon by media businesses. For example, in film-making a film company will always want the security of moral rights waivers from the composer of any music used in a film. The rationale for seeking a waiver is that any organisation who acquires rights to exploit any type of copyright work should not be inconvenienced by having to respect the artist’s moral rights! However, with an large number of deals between parties of increasingly equal bargaining positions, the time has never been better for an artist to seek to retain their moral rights.

What is the situation overseas?

Moral rights in the United Kingdom are far more limited than in the rest of Europe. In France moral rights (or droit moral) cannot be waived. Other countries benefit from additional moral rights, such as the right to correct work, object to alteration or destruction and withdraw from circulation. In the United States there is no formal concept of moral rights. Bear these differences in mind and take specific legal advice if you are ever working overseas! For example in the U.S. you will need to include contractual protections equivalent to moral rights in your contracts with publishers and record companies.

Wrapping up

In summary, moral rights are extremely valuable and you should endeavour to retain them wherever possible. It is still the norm for these rights to be waived. Artists are, however, finding it increasingly possible to negotiate a retention of moral rights in their music business contracts. If you must waive your moral rights against lawful users (e.g. your publisher) then try to retain your rights against unlawful users.

If you would like to discuss any specific requirements then please feel welcome to call me, Mark Roberts, on 0161 826 1297.

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