Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral Rights Agendas

Fordham Intellectual Property, Media and Entertainment Law Fordham Intellectual Property, Media and Entertainment Law

Journal Journal

Volume 21

Volume XXI

Number 3

Volume XXI Book 3

Article 1

2011

Moral Rights and Supernatural Fiction: Authorial Dignity and the Moral Rights and Supernatural Fiction: Authorial Dignity and the

New Moral Rights Agendas New Moral Rights Agendas

Jacqueline D. Lipton Ph.D.

Case Western Reserve University School of Law

, [email protected]

Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj

Part of the Intellectual Property Law Commons

Recommended Citation Recommended Citation

Jacqueline D. Lipton Ph.D.,

Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral

Rights Agendas

, 21 Fordham Intell. Prop. Media & Ent. L.J. 537 (2011).

Available at: https://ir.lawnet.fordham.edu/iplj/vol21/iss3/1

This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and

History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal

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please contact tmelnick@law.fordham.edu.

Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral

Rights Agendas Rights Agendas

Cover Page Footnote Cover Page Footnote

Professor of Law and Associate Dean for Faculty Development and Research; CoDirector, Center for Law,

Technology and the Arts; Associate Director, Frederick K. Cox International Law Center, Case Western

Reserve University School of Law, 11075 East Boulevard, Cleveland, OH, 44106; E-mail: [email protected];

Telephone: (216) 368– 3303.

This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal:

https://ir.lawnet.fordham.edu/iplj/vol21/iss3/1

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537

Moral Rights and Supernatural Fiction:

Authorial Dignity and the New Moral

Rights Agendas

Jacqueline D. Lipton, Ph.D.

ABSTRACT .................................................................................... 537

INTRODUCTION ............................................................................. 538

I. MORAL RIGHTS: NATURE AND SCOPE .................................... 541

A. Moral Rights versus Copyrights .................................. 541

B. The Rights of Attribution and Integrity ....................... 545

II. WHAT (SUPERNATURAL FICTION) AUTHORS WANT .............. 551

III. EVALUATING NEW MORAL RIGHTS MODELS ......................... 559

A. American Resistance to Moral Rights ......................... 559

B. The Netanel Model ...................................................... 562

C. The Kwall Model ......................................................... 569

CONCLUSION ................................................................................. 577

ABSTRACT

In recent years, several scholars have revisited the question of

moral rights protections for creators of copyright works in the

United States. Their scholarship has focused on defining a moral

rights agenda that comports with American constitutional values,

A PDF version of this Article is available online at http://iplj.net/blog/archives/

volumexxi/book3. Visit http://iplj.net/blog/archives for access to the IPLJ archive.

Professor of Law and Associate Dean for Faculty Development and Research; Co-

Director, Center for Law, Technology and the Arts; Associate Director, Frederick K. Cox

International Law Center, Case Western Reserve University School of Law, 11075 East

Boulevard, Cleveland, OH, 44106; E-mail: [email protected]; Telephone: (216) 368–

3303.

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538 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

as well as being practically suited to current copyright business

practices. Much of this scholarship has prioritized a right of

attribution over other moral rights, such as the right of integrity.

This Article evaluates some of these recent moral rights models in

light of a sample of comments made by American supernatural

fiction authors about their works. The Author questions whether

the moral rights models advocated in modern discourse effectively

fill the gaps between authors’ stated interests and the protections

currently available under copyright law. The Author also

questions the extent to which authors’ rights should be elevated

above others’ rights to enjoy and adapt their works.

INTRODUCTION

The word create . . . derives from the Latin verb

creo, which means “to give birth to.” . . . The

concept that an author “gives birth” to her artistic

creations provides the foundation for the

insurmountable connection between an author and

her work.

The United States has had a checkered history with moral

rights legislation. As a signatory to the Berne Convention,

the

United States is obliged to protect certain moral rights of authors

of copyrighted works.

However, since signing the Convention, it

is unclear whether the United States has complied with those

obligations.

The government has maintained that existing

ROBERTA ROSENTHAL KWALL, THE SOUL OF CREATIVITY: FORGING A MORAL RIGHTS

LAW FOR THE UNITED STATES 13–14 (2010).

Berne Convention for the Protection of Literary and Artistic Works, revised at Paris

July 24, 1971, 331 U.N.T.S. 217 [hereinafter Berne Convention], available at

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.

Id. art. 6bis; MARSHALL LEAFFER, UNDERSTANDING COPYRIGHT LAW 389 (5th ed.,

2010) (describing the moral rights set out in the Berne Convention as the right of

integrity—the right not to have a work mutilated or distorted—and the right of

paternity—the right of the author to be acknowledged as the author of the work).

Berne Convention, supra note 2, art. 6bis(1) (“Independently of the author’s

economic rights, and even after the transfer of the said rights, the author shall have the

right to claim authorship of the work and to object to any distortion, mutilation or other

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 539

competition laws,

supplemented by provisions of the Visual

Artists’ Rights Act (“VARA”),

sufficiently comply with Article

6bis—the moral rights provision.

However, a number of

commentators maintain that the United States is not in compliance

with the Article.

In recent years, copyright scholars have renewed

the debate about the need for moral rights protections in the United

modification of, or other derogatory action in relation to, the said work, which would be

prejudicial to his honor or reputation.”).

LEAFFER, supra note 3, at 390 (“Although American copyright law has never

adopted an integrated version of the moral right, some case law has come very close to

achieving the same result in protecting certain aspects of the author’s integrity and

paternity rights. The leading case is Gilliam v. American Broadcasting Cos., Inc., where

plaintiff’s right to prevent distortion of his work was protected under both the copyright

and unfair competition laws . . . . In addition to copyright and unfair competition laws,

American authors have turned to contract, defamation, and privacy laws to protect other

aspects of their artistic personality and reputation.” Gilliam v. Am. Broad. Cos., Inc., 538

F.2d 14 (2d Cir. 1976)).

Visual Artists Rights Act of 1990, Pub. L. No. 101-650, 104 Stat. 5128.

LEAFFER, supra note 3, at 380 (“Congress justified its decision not to adopt specific

moral rights legislation, claiming that the United States already gives de facto recognition

to moral rights when the entirety of American law is considered. But serious doubts

lingered about whether U.S. obligations under Berne had really been met, without

specific recognition of moral rights. The proponents of specific legislation quickly

prevailed. Congress responded by passing the Visual Artists Rights Act of 1990

(‘VARA’).”).

KWALL, supra note 1, at 37 (“[T]here is the stark reality that [the United States] may

not be in compliance with our [moral rights] obligations under the Berne Convention.”);

EAFFER, supra note 3, at 387 (noting that the United States has arguably not yet fulfilled

its obligations under Article 6bis of the Berne Convention); see also id. at 393

(“Ironically, VARA falls short of conforming to the requirements of the Berne

Convention. Most significantly, VARA specifies that protection lasts no longer than the

life of [the] author whereas Berne requires that moral rights should be protected at least

for the term of the related economic rights—which in the United States is the life of the

author plus 70 years.”); Margaret Ann Wilkinson & Natasha Gerolami, The Author as

Agent of Information Policy: The Relationship Between Economic and Moral Rights in

OV’T INFO. Q. 321, 327–30 (2009) (“The United States, which is now a

signatory to the Berne Convention and leading proponent of strong foreign and

international intellectual property protection, still does not have significant moral rights

provisions in its copyright legislation. . . . [M]any believe that American law does not

provide moral rights protection sufficient to satisfy the Berne Convention . . . despite the .

. . passage of the limited Visual Artists’ Rights Act (1990).”) .

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540 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

States, and have considered what such protections might look like

in practice.

There are a number of reasons for the renewed interest in moral

rights in recent years. In particular, as noted by Professor Neil

Netanel, digital technologies allow authors to relatively easily

express their preferences for uses of their works online.

This has

already occurred in the copyright context, particularly under the

Creative Commons License scheme.

Creative Commons licenses

enable authors to market their work with the freedoms they intend

to bestow on subsequent users.

Thus, a workable model already

exists for authors to express their preferences about moral rights, if

a broader moral rights agenda were to be adopted in the United

States. Another reason to revisit moral rights, also related to

digital technology, is that Internet technologies have rapidly made

the world a much smaller place. Perceived disharmonizations in

the law can be problematic when creators are now sharing their

works online on a global scale.

This Article aims to synthesize some of the more recent digital

developments involving copyright works with some of the relevant

scholarship on moral rights in the United States. The idea is to

evaluate the extent to which some of the newly proposed moral

rights models for the United States would address stated concerns

of authors particularly with respect to downstream online uses of

See KWALL, supra note 1, at 147–65; NEIL WEINSTOCK NETANEL, COPYRIGHT’S

PARADOX 215–17 (2008).

NETANEL, supra note 9, at 216 (“Digital technology may well ease the burden of

compliance [with copyright and moral rights law].”).

Id. at 216–17 (noting use of Creative Commons licensing scheme for authors to

express preferences in relation to online uses of their works).

LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID

ECONOMY, 277 (2008) (“Creative Commons [(“CC”)] gives authors free tools—legal

tools (copyright licenses) and technical tools (metadata and simple marking

technology)—to mark their creativity with the freedoms they intend it to carry. So if

you’re a teacher, and you want people to share your work, CC gives you a tool to signal

this to others. Or if you’re a photographer and don’t mind if others collect your work, but

don’t want Time magazine to take your work without your permission, then CC would

give you a license to signal this.”).

KWALL, supra note 1, at 37 (“As of the close of the first decade of the twenty-first

century, the United States appears to be rather isolated in its failure to recognize

explicitly adequate moral rights.”).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 541

their copyrighted works. Part I examines the nature of moral rights

and the checkered history of moral rights protections in the United

States. Part II addresses a small sample of comments made by

authors of supernatural fiction about downstream uses of their

works online. These authorial concerns are not particularly well

protected by current copyright laws, and the question arises

whether moral rights would provide more appropriate protections.

Supernatural fiction authors are chosen for examination because

they tend to be very articulate in the blogosphere and often

maintain active dialogue with their fans about preferred

downstream uses of their works.

Part III introduces some of the newer models for moral rights

protections advocated in recent years by American copyright

scholars Professors Neil Netanel and Roberta Rosenthal Kwall. It

examines the extent to which these models might effectively

address some of the authorial concerns identified in Part II. Part

IV concludes with some comments about ways in which moral

rights and copyright law could be developed in the future to better

address some of these authorial concerns. It further questions the

extent to which authorial concerns should be allowed to dictate

downstream uses of copyright works.

I. MORAL RIGHTS: NATURE AND SCOPE

A. Moral Rights versus Copyrights

When an artist creates, be he an author, a painter, a

sculptor, an architect or a musician, he does more

than bring into the world a unique object having

only exploitive possibilities; he projects into the

world part of his personality and subjects it to the

ravages of public use. There are possibilities of

injury to the creator other than merely economic

ones; these the copyright statute does not protect.

Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists,

Authors and Creators, 53 H

ARV. L. REV. 554, 557 (1940).

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542 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

Many commentators have noted that the economic rights

protected by copyright law do not grant full protection for the

kinds of interests a creator may want to assert in her work.

dissemination of literary and artistic works by providing sufficient

economic incentives to creators of those works.

prevents the unauthorized copying or dissemination of a protected

work, thus preserving the incentives to create.

If an author can

secure control of the work in the marketplace, she may feel more

confident creating and disseminating the work.

However, copyrights do not fully capture the nature of the

relationship between an author and her work.

For one thing,

copyrights are assignable,

meaning that an author may not be in a

position to control downstream uses of a work post-assignment. In

fact, in jurisdictions where moral rights are available, authors will

often invoke those rights against a copyright owner: that is, a

person to whom the copyright has been assigned.

Further, creators of copyright works engage in their artistic

endeavors for reasons other than pecuniary reward. Some authors

See, e.g., id. (“The copyright law, of course, protects the economic exploitation of

the fruits of artistic creation; but the economic, exploitive aspect of the problem is only

one of its many facets . . . .”); Wilkinson & Gerolami, supra note 8, at 321 (“[T]he

economic rights of copyright, though identified with an author, do not, in and of

themselves, protect the relationship between the author and the text.”).

Wilkinson & Gerolami, supra note 8, at 322 (“The stated purpose of copyright has

long been taken to be to encourage the production and dissemination of works thereby

increasing access to information.”).

See 17 U.S.C. § 106 (2006) (setting out the exclusive rights of copyright holders);

Wilkinson & Gerolami, supra note 8, at 321 (“The economic rights grant the copyright

holders exclusive privilege to make various uses of a work including copying, publishing,

performing, translating, and adapting the work.”).

Wilkinson & Gerolami, supra note 8, at 321 (“[T]he economic rights of copyright,

though identified with an author, do not, in and of themselves, protect the relationship

between the author and the text.”).

17 U.S.C. §§ 201(d), 204; Wilkinson & Gerolami, supra note 8, at 322

(“[Copyrights] are transferable and, therefore, the author, at any given time, is not

necessarily the rights holder.”).

Wilkinson & Gerolami, supra note 8, at 328 (“Moral rights can be invoked by an

author to oppose an economic rights holder’s exploitation of the work in a way deemed to

harm the reputation of the author.”).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 543

“write for glory and fame,”

others for the sake of the purely

creative process in and of itself.

In the software industry, for

example, it has been recognized that motivations such as

“intellectual stimulation and enjoyment of the creative process” are

drivers of innovation in software coding, often more so than

financial rewards or career advancement.

Professor Kwall has

identified a number of situations where creators are spurred by an

intrinsic urge to create rather than by any expectation of financial

reward.

She cites as examples of this phenomenon: “the cave

drawings of prehistoric man, the artistic creations of inmates on

death row, and the works of authorship produced by the inhabitants

of the Nazi death camps during World War II.”

Given the diverse motivations for creation and the variety of

relationships authors have with their creations, a law that focuses

purely on the protection of economic rights will miss important

elements of the creative process. This was realized towards the

beginning of the nineteenth century in Europe.

Since that time,

moral rights have developed throughout both civil and common

law jurisdictions.

Moral rights are further reflected in several

international treaties.

The one notable exception is that moral

Roeder, supra note 14, at 566 (“[A]uthors write for glory and fame as well as for

pecuniary advantage . . . .”).

KWALL, supra note 1, at 11 (“[M]any artists create for the sake of the creative

process rather than to generate profits.”).

Id. at 11–12 (quoting SUSAN SCAFIDI, WHO OWNS CULTURE? APPROPRIATION AND

AUTHENTICITY IN AMERICAN LAW 117 (2005)).

Id. at 20.

Id.

Roeder, supra note 14, at 555 (“The [moral rights] doctrine has been best expressed

and studied in France. As early as the beginning of the nineteenth century cases are

found which, emphasizing the criminal statutes against plagiarism, protected the right of

the creator to have the form of his work preserved from deformation by subsequent

transferees.”); see also K

WALL, supra note 1, at 39 (noting the early development of

moral rights in France in the nineteenth century).

KWALL, supra note 1, at 37 (noting the existence of substantive moral rights laws in

both civil and common law jurisdictions outside the United States).

See Berne Convention, supra note 2, art. 6bis; WIPO Performances and Phonograms

Treaty of 1996 art. 5(1), Dec. 20, 1996, S. Treaty Doc. No. 105-17 (1997), 36 I.L.M. 76

[hereinafter WIPO Treaty] (“Independently of a performer’s economic rights, and even

after the transfer of those rights, the performer shall, as regards his live aural

performances or performances fixed in phonograms, have the right to claim to be

identified as the performer of his performances, except where omission is dictated by the

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544 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

rights are not included in the 1994 Agreement on Trade-Related

Aspects of Intellectual Property Rights (“TRIPs”).

Moral rights can encompass a variety of different elements of

the author’s relationship with her work, and the exact scope of the

rights differs from jurisdiction to jurisdiction.

The relevant

international treaties—the Berne Convention, and the World

Intellectual Property Organization (“WIPO”) Performances and

Phonograms Treaty

—focus on two distinct rights: the right of

attribution or paternity,

and the right of integrity.

These rights

are the focus of the remainder of this discussion.

However, it is worth noting that some civil jurisdictions

maintain a broader array of moral rights. Courts in a number of

civil law jurisdictions have recognized additional rights such as the

right to refuse to create, the right to create and publish in any form

desired, the right to withdraw or destroy the work, the prohibition

against excessive criticism, and the prohibition against other

injuries to the creator’s personality.

Even the more well accepted

rights of integrity and attribution vary in nature and scope from

jurisdiction to jurisdiction.

manner of the use of the performance, and to object to any distortion, mutilation or other

modification of his performances that would be prejudicial to his reputation.”) .

KWALL, supra note 1, at 37 (“Although the 1994 Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPs) incorporates the Berne Convention and

provides for sanctions for noncompliance, the United States insured that Article 6bis was

excluded from the ‘rights and obligations’ TRIPs delineates.”).

Id. at 38 (“Moral rights . . . remain ‘chiefly a matter of national law.’ Historically,

there has been a divergence in moral rights protection between civil and common law

traditions, although recently the majority of common law jurisdictions have enacted

moral rights protections to some degree.”).

See WIPO Treaty, supra note 28.

LEAFFER, supra note 3, at 389 (describing the right of paternity as “the right to be

acknowledged as an author of the work”).

Id. (describing the right of integrity as “the right that the work not be mutilated or

distorted”).

Roeder, supra note 14, at 556 (summarizing these rights); see also KWALL, supra

note 1, at 44 (describing the right of disclosure and the right of withdrawal available in

some civil law jurisdictions).

KWALL, supra note 1, at 42–45 (noting differences of application in the law relating

to attribution and integrity in specific cases in France and Germany).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 545

B. The Rights of Attribution and Integrity

Article 6bis(1) of the Berne Convention obligates signatory

countries to protect an author’s rights of attribution or paternity,

and of integrity:

Independently of the author’s economic rights, and

even after the transfer of the said rights, the author

shall have the right to claim authorship of the work

and to object to any distortion, mutilation or other

modification of, or other derogatory action in

relation to, the said work, which would be

prejudicial to his honor or reputation.

The language protecting the “right to claim authorship of the

work” is generally referred to as an attribution or paternity right.

The language pertaining to an author’s right to object to

distortions, mutilations, modifications and other derogatory actions

in relation to a work is generally referred to as the right of

integrity.

All Berne signatories must, at a minimum, protect

these rights, although nothing precludes a signatory country from

adopting a broader moral rights agenda.

Berne Convention, supra note 2, art. 6bis.

LEAFFER, supra note 3, at 389.

Id.

KWALL, supra note 1, at 44 (describing moral rights recognized in European

jurisdictions outside of the Berne Convention requirements); L

EAFFER, supra note 3, at

389 (noting that traditional European formulations of moral rights would generally

include the right of disclosure as well as potentially the right of withdrawal, the right of

modification and the right to prevent excessive criticism); Roeder, supra note 14, at 556

(“The second half of the nineteenth century witnessed a rapid development of the [moral

rights] concept. The right to refuse to create, the right of paternity, the right to prevent

deformation of the work, all received recognition in civil courts . . . . The various

ramifications of the doctrine have been constantly developed in Europe and, in addition

to the rights already mentioned, the moral right may now be said to consist of the right to

create and publish in any form desired, the creator’s right to claim the paternity of his

work, the right to prevent every deformation, mutilation or other modification thereof, the

right to withdraw and destroy the work, the prohibition against excessive criticism, and

the prohibition against all other injuries to the creator’s personality.”).

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The language of Article 6bis(1) leaves some questions open

even with respect to the rights of attribution and integrity.

For

example, it is unclear whether the right to “claim authorship” of

the work includes the right not to be identified as the author of a

work. In a discussion of anonymous authors, pseudonymous

authors, ghost writers, and collective works, Professor Kwall notes

that: “an author’s decision to write anonymously or under a

pseudonym can be viewed as a branding choice that is a

fundamental part of the author’s meaning and message.”

If the

aim of the attribution right is to protect the author’s meaning and

message,

then one might argue that the author has a right not to

be identified as the author of the work—at least in cases where

anonymity or pseudonymity is essential to the author’s meaning

and message.

It is also unclear from the wording of Article 6bis(1) whether

destruction of a work by a copyright holder falls within the scope

of the right of integrity. The Convention requires that an author

should have the right to object to “distortion, mutilation or other

modification of, or other derogatory action” in relation to the

work.

It is unclear whether or not this encompasses destruction

of the work, particularly in cases where the destruction does not

affect the “honor or reputation” of the author.

In fact, many

countries with well developed moral rights laws do not protect

authors against destruction of a work,

although the Swiss law

KWALL, supra note 1, at 89 (noting unclear history of interpretation of the Visual

Artists’ Rights Act and the Berne Convention as to whether a right of anonymity or

pseudonymity should be protected as part of the right of attribution).

Id.

Id. at 87 (noting that the primary objective of moral rights might be to safeguard the

meaning and message of the author’s work).

Berne Convention, supra note 2, art. 6bis(1).

KWALL, supra note 1, at 44–45 (“Perhaps the underlying rationale for the failure of

most countries to prevent destructions of works of art is that a work that has been

destroyed completely cannot reflect adversely upon the creator’s honor or reputation. Of

course, this explanation is not relevant to those instances where a work is destroyed in a

manner that subjects the creator to shame or embarrassment.” (citations omitted)).

Id.; Roeder, supra note 14, at 569 (“The right to prevent deformation does not

include the right to prevent destruction of a created work. The doctrine of moral right

finds one social basis in the need of a creator for protection of his honor and reputation.

To deform his work is to present him to the public as the creator of a work that is not his

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 547

requires an owner of an artwork to offer to sell it back to its creator

prior to destroying it.

Other issues left open by Article 6bis include the duration of

moral rights. Article 6bis(2) provides that the rights of attribution

and integrity generally must be maintained after the death of the

author at least until the expiry of the economic rights in a work.

However, there is no further guidance on the appropriate duration

of moral rights. It is unclear whether, or to what extent, moral

rights should endure after the expiration of copyright in a given

work. Professor Kwall has suggested that moral rights protections

should not, in fact, endure beyond the original creator’s death.

This is because of her view that moral rights protect the author’s

intended “meaning and message” of her work and that no one’s

judgment about the meaning and message—not even that of the

author’s descendants—can be substituted for the author’s own

judgment.

She also believes that limiting the duration of moral

rights to the term of the original author’s life will mitigate free

speech concerns, including concerns about maintaining a vibrant

public domain of information and ideas.

Of course, this approach

own, and thus make him subject to criticism for work he has not done; the destruction of

his work does not have this result.”).

KWALL, supra note 1, at 44.

Berne Convention, supra note 2, art. 6bis(2) (“The rights granted to the author in

accordance with the preceding paragraph shall, after his death, be maintained, at least

until the expiry of the economic rights, and shall be exercisable by the persons or

institutions authorized by the legislation of the country where protection is claimed.

However, those countries whose legislation, at the moment of their ratification of or

accession to this Act, does not provide for the protection after the death of the author of

all the rights set out in the preceding paragraph may provide that some of these rights

may, after his death, cease to be maintained.”).

KWALL, supra note 1, at 159 (“[F]rom a theoretical standpoint, moral rights

protection should exist for the author’s lifetime, but not beyond.”).

Id. at 160 (“No one, not even the author’s spouse and children, can substitute a

personal judgment regarding the substance of the author’s meaning and message of her

work. Therefore, the author functions as the guardian of the work’s original meaning and

message during her lifetime.”).

Id. (“Moreover, a duration equivalent to the author’s life reinforces a vibrant public

domain.”); id. at 54 (“At the risk of vast oversimplification, the concept of the public

domain in intellectual property law entails common ownership by the public as a whole

of the property comprising the public domain. This means that each member of the

public has a ‘property interest’ and ‘an equal right to adapt and transform the material in

question.’”); see also J

AMES BOYLE, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF

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548 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

is not consistent with the requirements of the Berne Convention, as

Professor Kwall acknowledges.

It is also unclear from the wording of Article 6bis whether the

rights of attribution and integrity should be transferable or

waivable. Most theorists agree that moral rights are not

transferable, unlike copyrights.

This is because copyrights are in

effect a property or quasi-property right

while moral rights are

personal rights.

However, in effect, allowing waiver of moral

rights—which many countries do

—is tantamount to allowing a

transfer, in the sense that the author agrees to give up a right she

could otherwise exercise. Like a transfer, the waiver will generally

operate to the benefit of a third party copyright holder who may

THE MIND 38 (2008) (describing the public domain as “material that is not covered by

intellectual property rights”).

See KWALL, supra note 1, at 160 (“One possible difficulty with this position,

however, is that my recommended period of protection is not consistent with the Berne

Convention’s recommendation, the norms in the international community, or with the

entirety of VARA.”).

See, e.g., Roeder, supra note 14, at 564 (“Moral rights are personal rights; they are

not based on any theory of property, for whatever ‘property’ the creator may possess

exists in the rights protected by the copyright statute. Moral rights are akin to those

rights in tort which protect the individual against injury. They may not, therefore, be

assigned . . . .”); K

WALL, supra note 1, at 50–51 (noting that in Canada moral rights

cannot be assigned but they can be waived). But see K

WALL, supra note 1, at 35 (noting

that in some civil law countries, such as France, authors’ moral rights are often treated as

a special category of property that cannot be waived or transferred); NETANEL, supra note

9, at 215 (noting that the continental European model of moral rights accords authors

inalienable rights to control “the timing and manner in which their creative works are

disseminated to the public”).

See 17 U.S.C. § 201 (2006) (describing conditions for “ownership” and “transfer” of

copyrights).

Roeder, supra note 14, at 564 (“Moral rights are personal rights; they are not based

on any theory of property . . . .”).

See KWALL, supra note 1, at 50–51 (describing the waiver systems adopted in

common law jurisdictions such as Australia and Canada); Wilkinson & Gerolami, supra

note 8, at 329 (“[I]nternationally, there has been a trend which may reflect increasing

neglect of moral rights rather than an embracing of these provisions. Even in countries

where moral rights provisions exist, such as Canada, moral rights may have suffered

erosion. Canada, for example, in its 1988 amendments, introduced a waiver clause to its

moral rights legislation. Such a clause may greatly weaken the rights of authors because

they may easily be required to waive their rights as a condition of publication . . . .”

(citations omitted)).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 549

want to exploit the protected work in a manner inconsistent with

the original author’s preferences.

Professor Kwall has suggested that ideally moral rights should

not be waivable for two reasons. First, because theoretically it

makes no sense to waive a right that is intended to preserve

authorship dignity,

and, second, because allowing waiver of

moral rights exacerbates disparities of bargaining power between

creators and those with whom they contract.

One final issue which is left ambiguous by the wording of

Article 6bis is the precise relationship between the two rights

contemplated in the Article. The wording seems to indicate that

the rights of attribution and integrity are two distinct rights and,

indeed, certain elements, like the notion of damage to the author’s

“honor or reputation” are limited to the right of integrity.

However, there is clearly some overlap between the rights. As

some scholars have noted, the notion of attribution clearly impacts

on a work’s meaning and message.

Thus, the attribution right

often does very similar work to the right of integrity in preserving

the author’s intended meaning and message.

This was recognized as early as 1910 in the case of Clemens v.

Press Publishing Co.

where Judge Seabury noted the relationship

between the right of attribution and the integrity of the author’s

artistic vision:

KWALL, supra note 1, at 156–57 (“[F]ormal waivers should be inoperative as a

general matter. Given that moral rights are designed to recognize inspirational

motivations for creativity, any system sanctioning waiver is inconsistent from a

theoretical standpoint with the justifications for adopting these protections. In other

words, if moral rights protections are intended to redress violations of authorship dignity,

they should not be capable of being waived. An author always should be in a position to

inform the public that a publicly displayed or distributed version of her work does not

comport with her artistic vision . . . .”).

Id. at 157 (“[A]llowing waiver exacerbates the disparity of bargaining power

between authors and those with whom they contract.”).

Id. at 89 (“There is good reason for [the] view . . . that an author’s decision to write

anonymously or under a pseudonym can be viewed as a branding choice that is a

fundamental part of the author’s meaning and message.”).

67 Misc. 183 (N.Y. Sup. Ct. 1910). For a discussion of this case, see Roeder, supra

note 14, at 562–63.

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550 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

If the intent of the parties was that the defendant

should purchase the rights to the literary property

and publish it, the author is entitled not only to be

paid for his work, but to have it published in the

manner in which he wrote it. The purchaser cannot

garble it or put it out under another name than the

author’s; nor can he omit altogether the name of the

author, unless his contract with the latter permits

him to do so.

Professor Marshall Leaffer similarly recognizes the

relationship between the two rights set out in Article 6bis in noting

that the right of attribution encompasses the right “to prevent the

use of [the artist’s] name as the author of the work in the event of a

distortion, mutilation, or other modification of the work that would

be prejudicial to her honor or reputation.”

By linking the notion

of attribution with that of distortions of the work that are

prejudicial to the author’s honor or reputation, Professor Leaffer

emphasizes the link between the rights of attribution and integrity.

In summary, it is clear that Article 6bis contemplates the

existence of personal rights in the creator of a copyright work that

are separate to copyright and that protect different aspects of the

creator’s relationship with the work than copyright. However, the

precise interpretation of Article 6bis, and the way in which

signatory countries choose to implement its provisions, varies

widely. Resulting divergences in opinion on the nature and scope

of the rights of attribution and integrity are important in

considering whether and how enhanced moral rights protections

might be developed within the United States.

The remainder of this article considers some comments that

modern authors have made about the kinds of rights they would

like to protect in their works, and some recent moral rights models

that have been advocated by scholars in the United States. The

aim is to analyze the extent to which these newly advocated moral

rights models effectively address recently articulated authorial

concerns about protection of aspects of their works. This article

Clemens, 67 Misc. at 184.

LEAFFER, supra note 3, at 395.

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 551

focuses on authors of popular supernatural fiction as one subset of

authors who have been extremely articulate about downstream uses

of their work.

II. WHAT (SUPERNATURAL FICTION) AUTHORS WANT

I do not allow fan fiction. The characters are

copyrighted. It upsets me terribly to even think

about fan fiction with my characters. I advise my

readers to write your own original stories with your

own characters. It is absolutely essential that you

respect my wishes.

These words by the reigning queen of vampire fiction, Anne

Rice,

are an interesting example of an author articulating her

perceived or preferred rights in relation to her popularly released

works. In particular, she voices concerns about fan fiction.

Fan

fiction involves fans of an original work writing their own

prequels, sequels and re-tellings of the original stories from

different points of view.

More often than not, fan fiction is not

authorized by the creator of the original work, although some

creators now welcome fan fiction, but may attempt to impose

certain restrictions on its later use and dissemination.

Despite

Rice’s words, it is unclear in the United States whether or not fan

Anne Rice, Anne Rice Readers Interaction, ANNERICE.COM: THE OFFICIAL SITE,

http://www.annerice.com/ReaderInteraction-MessagesToFans.html (last visited Sept. 14,

2009).

Author of The Vampire Chronicles: INTERVIEW WITH THE VAMPIRE (1976); THE

VAMPIRE LESTAT (1985); THE QUEEN OF THE DAMNED (1988); THE TALE OF THE BODY

THIEF (1992); MEMNOCH, THE DEVIL (1995); THE VAMPIRE ARMAND (1998); MERRICK

(2000); B

LOOD AND GOLD (2001); BLACKWOOD FARM (2002); BLOOD CANTICLE (2003).

See Anne Rice, All Books, In Order, ANNERICE.COM: THE OFFICIAL SITE,

http://www.annerice.com/Bookshelf-AllBooksInOrder.html (last visited Jan. 13, 2011).

Anupam Chander & Madhavi Sunder, Everyone’s a Superhero: A Cultural Theory

of “Mary Sue” Fan Fiction as Fair Use, 95 C

ALIF. L. REV. 597, 598 n.6 (2007) (defining

“fan fiction” as “fiction about characters or settings written by fans of the original work,

rather than the original creators”).

Id.

HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE

152 (2006) (“In 2000, Lucasfilm offered Star Wars fans free Web space

(www.starwars.com) and unique content for their sites, but only under the condition that

whatever they created would become the studio’s intellectual property.”).

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552 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

fiction infringes an original author’s copyright.

Most likely, the

answer to this question will depend on the facts of a given case. It

is also unclear under American copyright law whether or not

fictional characters can in fact be copyrighted, as asserted by

Rice.

Assuming her characters are copyrightable, Rice is probably

correct in her assumption that readers who create fan fiction using

her characters without her authorization will be infringing her

really gets to the heart of the interests that Rice is attempting to

assert. Even though she frames her concerns in terms of the

copyrightability of her characters, copyright is intended to protect

economic rights of the author, rather than her personal rights in her

work.

From Rice’s comments, it appears that her concerns are

more personal than proprietary. She notes that it “upsets [her]

terribly” to think about others creating fan fiction with her

characters.

This wording suggests more of a personal injury or

violation than a concern with proprietary benefits. She is not

asserting that her fans are making unjust financial profits by using

her characters. In fact, fan fiction is generally not sold

commercially in competition with the author of the original work.

Thus, Rice’s stated concerns do not appear to be commercial or

proprietary in nature. Rather they appear to be personal—the idea

Steven Hetcher, Using Social Norms to Regulate Fan Fiction and Remix Culture,

157 U. P

A. L. REV. 1869, 1872 (2009) (noting the debate as to whether fan fiction and

online remixing is a copyright infringement or excusable fair use); Dennis Karjala, Harry

Potter, Tanya Grotter, and the Copyright Derivative Work, 38 A

RIZ. ST. L.J. 17, 32–34

(2006) (noting conflicting case law in the Harry Potter lexicon about the extent to which

works based on the Harry Potter books are either regarded as copyright infringements or

excusable fair uses).

1-2 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 2.12

(Matthew Bender rev. ed. 2010) (noting that there is some uncertainty about whether

fictional characters are copyrightable, although the currently prevailing view is that

sufficiently well defined characters are copyrightable); Karjala, supra note 67, at 24–26

(describing the historical development of American courts’ attitudes towards

copyrighting fictional characters).

See LEAFFER, supra note 3, at 2.

Rice, Anne Rice Readers Interaction, supra note 62.

Hetcher, supra note 67, at 1885 (“Within the fan-fiction community, there is a norm

against seeking commercial gain.”).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 553

that the fans have violated her personal dignity in some way. Even

the way Rice says that it is “absolutely essential that you respect

my wishes” suggests an emotive attachment to her work, rather

than a pecuniary motivation behind her concerns.

The language

is that of a creator seeking to protect the artistic integrity of her

creation, rather than of a commercial actor seeking to protect her

bottom line. Thus, even though her concerns are expressed in

undertones. It may be that Rice uses copyright language precisely

because there is no moral rights protection for fictional works in

the United States.

can assert, short of simply appealing to her fans’ good faith in

respecting her wishes.

Rice is not alone in articulating her strong views about fan

fiction. Another vampire novelist, Charlaine Harris, creator of the

popular Sookie Stackhouse novels,

has this to say on her website

in response to an author query about fan fiction:

Q. Can I post my cool story about Sookie on this

site?

A. No, and I’ll tell you why. No fanfic can appear

on this website. Not only does it make me feel

strange to have other people use my characters, but

there are legal issues to consider.

Harris’s comments differ from Rice’s in several ways, although

her concerns about fan fiction seem very similar. Like Rice, Harris

Rice, Anne Rice Readers Interaction, supra note 62.

LEAFFER, supra note 3, at 393 (“The Visual Artists Rights Act is limited in its

subject matter and scope and is essentially confined to the protection of works of fine art.

Qualifying works include those that exist in a single copy, such as original paintings,

drawings, prints, sculptures, or works existing in signed and consecutively numbered

editions of no more than 200 copies.”).

DEAD UNTIL DARK (2001); LIVING DEAD IN DALLAS (2002); CLUB DEAD (2003);

EAD TO THE WORLD (2004); DEAD AS A DOORNAIL (2005); DEFINITELY DEAD (2006);

LL TOGETHER DEAD (2007); FROM DEAD TO WORSE (2008); DEAD AND GONE (2009);

DEAD IN THE FAMILY (2010); see also Charlaine Harris, Bibliography: The Sookie

Stackhouse aka Southern Vampire Series, C

HARLAINEHARRIS.COM, http://www.

charlaineharris.com/bibliography/bibliog-sookie.html (last visited Jan. 12, 2011).

Charlaine Harris, Frequently Asked Questions, CHARLAINEHARRIS.COM,

http://www.charlaineharris.com/faqs.html (last visited July 14, 2010).

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554 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

utilizes emotive language in saying that it makes her “feel strange”

to have others use her characters. Unlike Rice, she refers obliquely

to “legal issues” without specifying copyright law in particular.

Harris also limits her comments to the question whether she herself

is prepared to host fan fiction on her own website. Unlike Rice,

Harris does not purport to ban fans from writing their own stories,

but simply says she would feel strange hosting those stories on her

website. It is possible that the legal issues she is referring to relate

to contractual agreements with her publishers not to endorse any

competing works. Hosting such works on her website may

potentially contravene contracts with her publishers, although this

is not immediately obvious from her online comments.

Whether or not Harris’s reference to legal issues is intended to

imply copyright, trademark or contract law, she is clearly not

referring to moral rights as American moral rights law does not

cover fictional writings.

However, as with Rice’s comments,

Harris’s comments do connote concerns generally associated with

moral rights. She seeks to protect her own authorial dignity and

her emotional investment in characters she has created. Of course

Harris, like Rice, has licensed others to use her characters in

various media. Harris’s characters and plotlines form the basis of

the popular HBO Television Series, True Blood.

Rice authorized

the use of her characters and storylines in a Broadway musical:

LESTAT.

Thus, both authors are sufficiently savvy to utilize

outside the traditional book-publishing arena. Their concern is not

with lack of economic control over their works. Their stated

concerns to fans have to do with something much more personal

than money.

We see the same pattern again and again on creators’ blogs.

Another extremely popular vampire author, Stephenie Meyer,

See LEAFFER, supra note 3, at 393 (noting limited cover of VARA to particular sub-

categories of the fine arts).

See Trueblood: About, HBO, http://www.hbo.com/true-blood/index.html#/true-

blood/about/index.html (last visited Jan. 24, 2011).

Anne Rice, LESTAT on Broadway, ANNERICE.COM: THE OFFICIAL SITE,

http://www.annerice.com/Lestat-TheMusical.html (last visited Jan. 24, 2011).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 555

creator of the Twilight books,

has voiced similar concerns, albeit

in a somewhat different context. As with Rice and Harris, Meyer

has been extremely successful at commercializing her work both

through publication of her books and through licensing

reproductions in different media—notably movies

and graphic

novels.

However, she, too has had issues with fans making

unauthorized use of her work. In Meyer’s case, the concern has

not been so much with fan fiction as she does not specifically

mention fan fiction on her website, although she has made some

comments about fan fiction in interviews.

In the interview

context, she has described being of two minds about fan fiction.

On the one hand she is interested in seeing what people come up

with,

and she confesses to writing her own brand of

parody/fiction based on her own published novels.

On the other

hand, she suggests that fans who are good creative writers should

TWILIGHT (2005); NEW MOON (2006); ECLIPSE (2007); BREAKING DAWN (2008); see

also Stephenie Meyer, Twilight Series, T

HE OFFICIAL WEBSITE OF STEPHENIE MEYER,

http://www.stepheniemeyer.com/twilightseries.html (last visited Jan. 24, 2011).

TWILIGHT (Summit Entertainment 2008); NEW MOON (Summit Entertainment 2009);

CLIPSE (Summit Entertainment 2010); see also Box Office/Business for Twilight,

INTERNET MOVIE DATABASE, http://www.imdb.com/title/tt1099212/business (last visited

Jan. 18, 2010); Box Office/Business for New Moon, INTERNET MOVIE DATABASE,

http://www.imdb.com/title/tt1259571/business (last visited Jan. 18, 2010); Box

Office/Business for Eclipse, I

NTERNET MOVIE DATABASE, http://www.imdb.com/title/

tt1099212/business (last visted Jan. 18, 2010).

1 STEPHENIE MEYER & YOUNG KIM, TWILIGHT: THE GRAPHIC NOVEL (2010); see

also George Gene Gustines, A World of Words Reinvented in Pictures, N.Y. TIMES, Feb.

9, 2010, at C1.

Alison Genet, Stephenie Meyer Talks “Twilight” Fan Fiction & “Breaking Down”

(Her Own Private FF), T

WIFANS (July 7, 2010, 2:30 PM), http://www.twifans

.com/profiles/blogs/stephenie-meyer-talks-twilight.

Id. (“Fan-fiction has become kind of a mixed thing for me. Like in the beginning I

hadn’t heard of it and there were some that were . . . I couldn’t read the ones that had the

characters IN character. It freaked me out. [U]m, but I liked. . . . [T]here was one about

Harry Potter and Twilight that was hilarious. And then there was one that was about a

girl who was starring as Bella in the movie and that was funny. And uh, I hear so many

people arguing about fan-fiction.”).

Id. (“Breaking Down was actually a project for a while. There was a while where

you get burned out, we came up with an alternate Breaking Dawn called Breaking Down

(laughs). It was awesome! Complete spiraling downward & destruction in Bella

Swan[’]s life & everyone around her. Charlie became a meth addict.”).

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556 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

develop their own plots and characters that they can own and sell

without worrying about infringing other people’s copyrights.

However, the one concern she raises on her own website—as

well as discussing in interviews

—is a situation involving an

unpublished and incomplete manuscript that was distributed over

the Internet without her authorization. The manuscript was entitled

Midnight Sun and was a retelling of the original first book—

Twilight—from another character’s perspective.

Twilight is

narrated from the perspective of the series heroine, Bella Swan,

while Midnight Sun retells the Twilight story from the point of

view of her love interest, the vampire Edward Cullen.

When she was about half way through the manuscript, she

released the draft to certain people involved in the film adaptation

of the first book so they could get a better idea of the backstory

behind the character of Edward. Subsequently, the manuscript was

leaked on the Internet without Meyer’s authorization. Meyer was

so upset by this unauthorized leak that she gave up work on the

book and never completed it,

although she did post an “official”

Id. (“As long as the writers of it, move on from it. I think it’s sad to spend so much

energy on something you can’t own. And that makes me a little bit sad because all these

talented kids should be, ya know, get your story out from under the bed and get it out

there.”).

Id. (“The whole Midnight Sun . . . mess, came about because, when you first get

started, you really want people to read your book & give you feedback and no one’s ever

gonna care, like you don’t have to worry about leaks. That’s such a crazy idea. With MS

you know, I had a readers group and we all read each other’s stuff and that’s very normal.

I saw a lot of feedback, like ‘she shouldn’t be giving her stuff out,’ but 10 years ago

before anybody knew that had ever read Twilight, did you ever think anyone was gonna

care or look for this crap? Absolutely not.”).

See Midnight Sun: Twilight with Edward as the Narrator, TWILIGHT NEWS SITE

(Feb. 21, 2010), http://twilightnewssite.com/news-twilight-new-moon-eclipse-breaking-

dawn/midnight-sun-twilight-with-edward-as-narrator.

See id.

Id.

Stephenie Meyer, Midnight Sun: Edward’s Version of Twilight,

STEPHENIEMEYER.COM (Aug. 28, 2008), http://www.stepheniemeyer.com/midnightsun.

html (“So where does this leave Midnight Sun? My first feeling was that there was no

way to continue. Writing isn’t like math; in math, two plus two always equals four no

matter what your mood is like. With writing, the way you feel changes everything. If I

tried to write Midnight Sun now, in my current frame of mind, James would probably win

and all the Cullens would die, which wouldn’t dovetail too well with the original story.

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 557

version of the incomplete manuscript on her website.

Accompanying that post, she had this to say:

I did not want my readers to experience Midnight

Sun before it was completed, edited and published.

I think it is important for everybody to understand

that what happened was a huge violation of my

rights as an author, not to mention me as a human

being. As the author of the Twilight Saga, I control

the copyright and it is up to the owner of the

public; this is the same for musicians and

filmmakers. Just because someone buys a book or

movie or song, or gets a download off the Internet,

doesn’t mean that they own the right to reproduce

and distribute it. Unfortunately, with the Internet, it

is easy for people to obtain and share items that do

not legally belong to them. No matter how this is

done, it is still dishonest. This has been a very

upsetting experience for me, but I hope it will at

least leave my fans with a better understanding of

As with Anne Rice’s post about fan fiction, Meyer here

expresses her concerns in the language of copyright, even though

she characterizes the harm she has suffered as much more personal

than economic in nature. She talks about her rights being violated

both as an author and a human being. This connotes concern with

a dignitary harm rather than a pecuniary harm. She also talks

about the “dishonesty” of the people who posted her manuscript

In any case, I feel too sad about what has happened to continue working on Midnight Sun,

and so it is on hold indefinitely.”).

Id. (“I’d rather my fans not read this version of Midnight Sun. It was only an

incomplete draft; the writing is messy and flawed and full of mistakes. But how do I

comment on this violation without driving more people to look for the illegal posting? It

has taken me a while to decide how and if I could respond. But to end the confusion, I’ve

decided to make the draft available here (at the end of this post). This way, my readers

don’t have to feel they have to make a sacrifice to stay honest. I hope this fragment gives

you further insight into Edward’s head and adds a new dimension to the Twilight story.

That’s what inspired me to write it in the first place.”).

Id.

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558 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

without her authorization. Dishonesty is not an element of a

liability wrong,

and the defendant’s state of mind—honest or

dishonest—is irrelevant. Again, this seems to be more of a

personal than an economic issue for Meyer. As with Rice and

Harris, Meyer also talks about how “upsetting” the experience has

been for her when someone has made an unauthorized non-

commercial use of her work.

Unlike the fan fiction situations troubling Rice and Harris,

however, Meyer could potentially also suffer economic harm if an

early draft of her manuscript is available online and she later

commercially publishes an official version. It is conceivable that

someone might read the version available online, decide they do

not like it, and not bother to buy the final version, when otherwise

they may have bought it. Of course, it is equally possible—and

probably more likely—that her fans would have been titillated by

the online draft into buying the final published version to see what

happens next and perhaps to compare the early draft with the final

product.

Towards the end of the above quote, Meyer links the idea of

fans “understanding copyright law” with the notion of fans

understanding “the importance of artistic control.” In actual fact,

particularly in circumstances where the original creator has

assigned the copyright to a publisher or other distributor. While an

author who retains copyright in her work may use it as a tool to

protect her artistic integrity, in the absence of moral rights

protections, an author who assigns her copyright will be out of luck

unless she can convince the assignee to threaten or sue an alleged

infringer. This again indicates the mismatch between the aims of

protect in relation to their works.

17 U.S.C. § 501(a); see also Dane S. Ciolino & Erin A. Donelon, Questioning Strict

Liability in Copyright, 54 R

UTGERS L. REV. 351 (2002).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 559

III. EVALUATING NEW MORAL RIGHTS MODELS

A. American Resistance to Moral Rights

[C]omprehensive [moral rights] legislation is likely

to be ill-advised. It is likely to be impracticable in

its application, to be unsettling in its impact upon

longstanding contractual and business

arrangements, to threaten investment in and public

dissemination of the arts, to sharply conflict with

fundamental United States legal principles of

law, and ultimately to stifle much artistic creativity

while resulting in only the most speculative

incentives to such creativity.

The question for the remainder of this Article is whether a

moral rights agenda might help authors protect some of the aspects

of their works that are currently not very well protected by

moral rights models for the United States that would accommodate

First Amendment concerns as well as associated concerns about

protecting the public domain of information and ideas from over-

propertization.

Before examining these recent moral rights

models, it is worth briefly addressing the historical concerns within

the United States about moral rights, and the explanations for why

the United States has not been more pro-active in developing a

moral rights agenda, despite signing the Berne Convention.

The United States has a strong First Amendment tradition

which includes preserving works within the public domain for

general use. Those opposed to moral rights are concerned about a

personal right that might severely limit uses others may make of

Robert A. Gorman, Federal Moral Rights Legislation: The Need for Caution, 14

OVA L. REV. 421, 422 (1990).

NETANEL, supra note 9, at 216 (“[L]imited moral rights protection would do more

than merely assuage authors’ feelings. It would also promote First Amendment values.”);

WALL, supra note 1, at 54 (“[I]n developing appropriate moral rights protection for the

United States, it is critical to consider how these protections will impact the public

domain.”).

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560 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

existing works, particularly those works in the public domain.

There are associated concerns that moral rights could impinge on

downstream fair uses of protected works. Fair use is generally

regarded in American copyright law as an important protection for

free speech.

However, if an author asserting a moral right could

prevent an otherwise protected fair use—for example, a parody of

a work—this would be problematic for the First Amendment

balance in copyright law.

Professor Ilhyung Lee has noted that

VARA—the only specific American moral rights legislation—

expressly makes moral rights subject to fair use in order to

accommodate these concerns.

Another related concern about moral rights has been raised

with respect to the position of the copyright holder where that

person is a different person than the original creator. The concern

is that it is uncomfortable under American notions of property law

for a personal right, such as a moral right, potentially to trump a

property or quasi-property right. Professor Lee has evocatively

described this concern:

Perhaps most jarring to the American psyche is the

idea of an author’s moral right taking precedence

over another’s property right. The notion that an

artist may, in the name of the personal interests in

the work, prevent the purchaser and holder of title

in the work from doing with it what she wishes may

NETANEL, supra note 9, at 215 (“To the extent the European [moral rights] regime

gives authors a broad right to prevent creative appropriations of their existing works, it,

no less than proprietary copyright, unduly impedes such expression.”); K

WALL, supra

note 1, at 54 (“[I]n developing appropriate moral rights protection for the United States, it

is critical to consider how these protections will impact the public domain.”).

See Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003) (describing the fair use defense

in copyright law as an important built-in protection for free speech).

Ilhyung Lee, Toward an American Moral Rights in Copyright, 58 WASH. & LEE L.

REV. 795, 814 (2001) (“Another example of the potential conflict between moral rights

and constitutional protections is the author who objects to the alteration or use of her

work by another who, in turn, claims that such alteration or use is parody or criticism,

permitted under the doctrine of fair use. Here, implementation of the traditional droit

moral may result in prohibiting actions based on the First Amendment’s right of free

expression.”).

Id.

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run contrary to the American socio-legal culture and

border on the heretical.

100

Professor Lee goes on to suggest that the legislative creation of

a moral rights doctrine might, on this basis, even be regarded as an

unconstitutional regulatory taking.

101

Other objections to moral

rights in the United States relate to the expansion in recent decades

of the kinds of subject matter covered by copyright law. While

original databases, these works are not the typical subjects of

moral rights protections as they have “little or no artistic, personal,

or cultural heritage [and] are ill-suited for moral rights

protection.”

102

Of course, this concern could be accommodated in

a new moral rights agenda by limiting moral rights coverage to

more artistic and less functional works.

103

Professor Marshall Leaffer has also raised more market-

oriented concerns about the potential adoption of a moral rights

agenda within the United States even in the context of works that

have a significant artistic or cultural dimension:

Moral rights protection will inherently clash with

the way many works are created in cultural and

entertainment industries such as moviemaking,

publishing, and broadcasting. These intensely

collaborative endeavors are exploited through

subsidiary markets. For example, motion pictures

are abridged for television, textbooks are revised

and translated, and music is synchronized, adapted,

and broadcast in a multiplicity of forms. These

lucrative derivative markets, which attract

significant investment into the entertainment and

cultural industries, are regulated by contractual

agreement. But an expansive moral rights concept,

100

Id.

101

Id.

102

LEAFFER, supra note 3, at 400.

103

KWALL, supra note 1, at 148 (“[M]oral rights should be applicable to works

manifesting heightened originality with substantial creativity. If Congress were to follow

this approach, it would be appropriate to exclude completely works from coverage that

are largely functional and therefore lacking in significant artistic characteristics.”).

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562 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

presenting a constant threat of legal challenge

brought by any one or more collaborators, would

tend to undermine the economic expectations and

the delicate allocation of rights achieved through

private negotiation between authors, users, and

labor unions. The result may be less financial

support for such collaborative artistic endeavors,

ultimately harming the public interest.

104

Contracting parties will be less certain of their rights where

third party creators are able to assert unexpected moral rights in a

way that significantly impacts on the performance of the contract.

Thus, any moral rights agenda needs to be carefully thought out

and implemented within the United States to ensure that major

commercial markets are not harmed to the detriment of the

economy and the public interest. Of course, thriving entertainment

industries also raise First Amendment concerns. Movies,

television shows, books and the like are all important forms of

expression protected by the First Amendment. They are also forms

of commercial property that may be protected by the takings

clause.

105

The models of moral rights protection proposed recently

by Professors Netanel and Kwall respectively attempt to strike this

delicate balance.

B. The Netanel Model

[T]he law can—and should—give some

accommodation to authors’ interest in creative

control, without excessively burdening creative

speakers.

106

Drawing on the work of Professor Jessica Litman,

107

Professor

Netanel has proposed a moral rights agenda for the United States

that emphasizes the right of attribution.

108

In particular he focuses

on the concern that “those who disseminate a creative

appropriation should be required to label it as an unlicensed

104

LEAFFER, supra note 3, at 387.

105

See Lee, supra note 98, at 814.

106

NETANEL, supra note 9, at 215.

107

Id. (citing JESSICA LITMAN, DIGITAL COPYRIGHT 185 (2001)).

108

See id. (citing LITMAN, supra note 107, at 185).

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modification of the original work.”

109

In this context, the right of

attribution operates in tandem with a de facto right of integrity to

ensure that creators are not falsely attributed with distortions of

their works. Both Professor Litman and Professor Netanel have

identified ways in which modern digital technologies can assist

authors in protecting a right of attribution.

Professor Litman suggests that a modified version of a work

posted online could be required to be accompanied by a citation or

hypertext link to an unaltered copy of the author’s original work.

110

Professor Netanel also suggests that if the focus is on the right of

attribution, digital technology makes compliance quite simple.

111

The law could merely require copyright management

information

112

that is digitally embedded in the original work to be

included in a creative appropriation of the work by a downstream

user.

113

This is not much of a stretch from what the law already

requires under the Digital Millennium Copyright Act (“DMCA”).

Currently this legislation prohibits the intentional removal,

alteration, or knowing falsification of copyright management

information from a protected work.

114

Professor Netanel further stresses data from the Creative

Commons licensing scheme for copyright works,

115

noting that

most authors utilizing these digital licenses impose attribution

requirements while significantly fewer authors are concerned about

the making of unauthorized downstream works.

116

It appears

therefore that Creative Commons licenses are already used to

protect authors’ attribution rights albeit as part of a contractual

licensing scheme for use of a copyright work, rather than under

109

See id.

110

Id. (citing LITMAN, supra note 107, at 185).

111

Id. at 216.

112

See 17 U.S.C. § 1202(c) (2006) (defining copyright management information as

including information about the ownership of a work and the terms upon which the work

may be used).

113

See NETANEL, supra note 9, at 216.

114

See 17 U.S.C. § 1202(a)–(b).

115

NETANEL, supra note 9, at 217 (noting that Creative Commons estimates that “as of

February 2005, authors chose licenses requiring attribution some 94 percent of the time

and, in contrast, chose licenses prohibiting the making of a derivative work less than one-

third of the time”).

116

Id.

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separate moral rights legislation. Thus, in today’s Creative

Commons context, the ability of a creator to protect her attribution

right will depend on her not having assigned copyright in the work

to someone else.

By focusing on the attribution right, Professor Netanel attempts

to strike a balance between First Amendment values and moral

rights. If the emphasis is on attribution, rather than integrity, there

is much less concern with downstream uses of a copyright work

being negatively impacted by moral rights. If downstream users

are only required to attribute—and maybe to link back to—the

original work, rather than to curtail their activities in any more

substantive way, there is much less of a threat to First Amendment

values than if downstream users are subject to unexpected claims

by authors that might prevent their expressive activities. Of

course, copyright holders can still bring infringement actions to

prevent unauthorized derivative works in cases where these works

are not protected as fair uses.

117

Professor Netanel also claims to be promoting First

Amendment values with his model in the sense that the First

Amendment encompasses an author’s interest in avoiding forced

speech:

[A] requirement that creative appropriators take

reasonable steps to accord authorship credit for

underlying works and ensure that audiences

understand the source of the modified version can

help to protect authors’ interest in avoiding “forced

speech. . . .” [W]hile authors do not have a

cognizable speech interest in preventing another

from modifying their creative expression or using it

in a context that is not to their liking, they do have

such an interest in preventing the impression that

they endorse a message they find repugnant.

118

Thus, by preserving downstream users’ rights to re-purpose the

original author’s creation, but by denying them the right to falsely

117

See Hetcher, supra note 67, at 1888–89 (noting that authors do bring copyright

lawsuits and send cease and desist letters to creators of fan fiction).

118

NETANEL, supra note 9, at 216.

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attribute the repurposed work, Professor Netanel would argue that

an appropriate balance is struck. Professor Netanel garners further

support for his focus on the attribution right by considering some

of Professor Rebecca Tushnet’s work in the context of fan fiction,

noting that authorship attribution is an extremely powerful norm in

that context.

119

He also cites evidence that documentary

filmmakers place significant emphasis on authorship attribution.

120

In further mitigating the potential negative impact of moral

rights law on downstream creative uses of copyright works,

Professor Netanel suggests that the attribution right could be

enforced under a “reasonableness standard rather than a hard-and-

fast rule.”

121

A finding of infringement of the attribution right

might therefore depend to some extent on context. Thus, the

enforcement of the right could be eased in cases of noncommercial

use or in cases where the source of a modified work is obvious to

its audience, such as in the case of much fan fiction based on, say,

a popular television series.

122

If Professor Netanel is correct in his intuition that the

attribution right is more important or acceptable in the United

States than the integrity right, it is worth considering the extent to

which this argument would address some of the concerns raised in

Part II by the supernatural fiction authors. Two of those

concerns—those raised by Anne Rice and Charlaine Harris—were

focused predominantly on unauthorized fan fiction. Stephenie

Meyer, on the other hand, while ambivalent about fan fiction was

certainly concerned about the unauthorized online dissemination of

her incomplete manuscript for Midnight Sun.

123

Would the

Netanel approach, if implemented in practice, have addressed these

authors’ concerns in practice?

The first obvious shortcoming of the Netanel approach in

addressing Rice’s and Harris’s concerns about fan fiction is that

119

See id. at 217 (citing Rebecca Tushnet, Payment in Credit: Copyright Law and

Subcultural Creativity, 70 L

AW & CONTEMP. PROBS. 135 (2007)).

120

See id. (citing ASS’N OF INDEP. VIDEO AND FILMMAKERS ET AL., DOCUMENTARY

FILMMAKERS’ STATEMENT OF BEST PRACTICES IN FAIR USE 4–6 (2005)).

121

Id. at 216.

122

See id.

123

See supra note 90–92 and accompanying text.

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Professor Netanel does not advocate a moral rights agenda that

substantively impacts downstream creative uses of a work. Where

an original author’s objection is to the actual downstream use—the

creation of the fan fiction—as opposed to the lack of attribution or

false attribution, the Netanel model would have no application.

Moreover, as noted above, Professor Netanel notes that fan fiction

communities already have strong attribution norms,

124

suggesting

that his model would have little practical impact on the way these

communities currently operate. Thus, to the extent that popular

fiction authors are unhappy with the way the system currently

operates, the Netanel model does not address their concerns at all.

Their concerns may be addressed by a broader moral rights agenda

that includes a right of integrity,

125

but attribution by itself will not

likely help.

None of this is to suggest that authors’ interests should

necessarily be prioritized over those of their fans. However, it

does emphasize the fact that in making choices about adopting a

moral rights agenda, and the form of an appropriate moral rights

framework, there will always be winners and losers.

126

The

Netanel model consciously elevates the creative needs of

downstream users—such as fan fiction communities—over those

of original authors.

Even in the absence of any moral rights agenda, authors who

retain copyright in their works can utilize contractual licenses and

the copyright law to control the substance of much fan fiction.

While it is unclear whether fan fiction will infringe copyright as an

unauthorized derivative work,

127

124

NETANEL, supra note 9, at 217 (citing Tushnet, supra note 119, at 135).

125

LEAFFER, supra note 3, at 387 (noting that the right of integrity includes the right to

prevent any intentional modification of an original work that would be prejudicial to the

artist’s honor or reputation).

126

See, e.g., Roeder, supra note 14, at 577 (“The [traditional European] doctrine of

moral rights favors the creator and the public against the entrepreneur and the

performer.”).

127

See Hetcher, supra note 67, at 1872 (noting the debate as to whether fan fiction and

online remixing is a copyright infringement or excusable fair use); Karjala, supra note

67, at 32–34 (noting conflicting case law concerning the extent to which works based on

the Harry Potter books are either regarded as copyright infringements or excusable fair

uses).

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can and do make claims for copyright infringement on this basis.

128

Additionally, as noted by Professor Netanel, copyright holders can

utilize Creative Commons licenses when they release their works

online.

129

These licenses can prohibit the creation of derivative

works at the author’s option, provided that the author has retained

130

A more difficult question arises in attempting to apply the

Netanel model to the Midnight Sun controversy. In this case, as

with the fan fiction situations, attribution per se was not the key to

the problem. Stephenie Meyer was simply upset that unauthorized

copies of her work—that were attributed to her—were released on

the Internet before she was ready for people to read them. This

situation implicates the relationship between the rights of

attribution and integrity. The problem here for Meyer was the

dissemination of her work in a form in which she did not want

others to receive it. Unlike the typical concerns about authorial

dignity, the Midnight Sun situation did not involve a third party

revising a work and releasing it under the author’s name in a form

unapproved by the author. Rather, it involved a third party

releasing the author’s own work in a form unapproved by the

author.

As noted in Part I.B., Professor Leaffer has suggested that the

right of attribution will typically include the right of an author to

prevent the use of her name as the author of a work “in the event of

a distortion, mutilation, or other modification of the work that

would be prejudicial to her honor or reputation.”

131

While the

release of an unauthorized and incomplete early version of a

manuscript may be prejudicial to an author’s honor or reputation,

could it really be described as a “distortion, mutilation, or other

modification of the work?” Again, there is a strong argument that

the Netanel moral rights model would have no application here.

128

See Hetcher, supra note 67, at 1888–89 (noting that authors do bring copyright

lawsuits against creators of fan fiction).

129

See NETANEL, supra note 9, at 216–17.

130

About the Licenses, CREATIVE COMMONS, http://creativecommons.org/licenses (last

visited Jan. 6, 2011).

131

LEAFFER, supra note 3, at 395.

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Again, this may well be as it should be. An author who has

retained copyright in her unpublished manuscript can use copyright

law to seek a remedy in situations such as the unauthorized release

of the manuscript. However, copyright law and copyright

remedies are premised on property rights rather than authorial

dignity, so the copyright model is not necessarily the best fit for

the perceived harm here. If the author is looking for an apology or

some other remedy related to her dignity, she will not find it in

addresses the kind of harm suffered by Meyer in this situation.

While an injunction may be available under copyright law, the

damage to Meyer’s artistic process was already done. She felt that

she had been violated as an author to the extent that she could not

complete the project. Neither copyright law nor moral rights law

may give her any practical comfort at the end of the day.

Of course, this depends on the breadth of one’s conception of

moral rights. While neither of Berne’s Article 6bis rights would

likely help authors like Meyer in the case of unauthorized

distributions of their own work, some of the broader civil moral

rights systems might cover this situation. Formulations of moral

rights that include the right to withdraw the work from publication

might be the kind of right that authors like Meyer would really be

seeking in situations like the Midnight Sun dilemma.

132

However, the applicability of a right of withdrawal, even in

countries that maintain the right, can be limited in practice and

may not cover every situation in which an author desires to

withdraw a work from the public. As Professor Kwall has noted,

even in countries that maintain a right of withdrawal, the right

tends to be rarely exercised in practice.

133

This is because in

countries like France, Germany, and Italy,

134

the right to withdraw

132

See id. at 389 (noting that some formulations of moral rights include the right to

withdraw the work from publication); Roeder, supra note 14, at 556 (noting that some

European countries protect the right to withdraw and destroy the work as amongst the

author’s moral rights).

133

See KWALL, supra note 1, at 44.

134

See id. (noting that France, Germany, and Italy maintain a right to withdraw a work

as part of their moral rights law).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 569

only applies to published works,

135

and only applies in situations

where the author can affirmatively establish severe harm as a result

of the inability of the work to represent her personal convictions.

136

Thus, under current European formulations of the right to

withdraw, the dissemination of an unpublished manuscript that

does not cause severe harm to the author by misrepresenting her

current “convictions or spirit”

137

would not likely infringe the

right.

The fact that the Netanel model does not provide a remedy for

any of the authors’ concerns raised in Part II does not of course

condemn it as an inappropriate moral rights agenda for the United

States. The aim of this discussion has merely been to demonstrate

that even the most carefully thought out moral rights models will

have to strike a balance somewhere, and cannot address

everybody’s concerns. Professor Netanel’s focus—like Professor

Litman’s and Professor Tushnet’s—is on encouraging creativity in

downstream markets while protecting authorial dignity in the

context of attribution. It is a thought-provoking model that may

well be worth adopting. However, it would still appear to fall short

of the United States’ international obligations under the Berne

Convention as it does not include the right of integrity. It would

also have to be developed to ensure that it is in compliance with

other aspects of Berne, such as the term of the attribution right.

138

C. The Kwall Model

Societies that care about fostering the creation of

works of authorship should take seriously the idea

that authors are concerned about safeguarding the

textual integrity of their works . . . . [C]ompelling

135

See id. (“The right of withdrawal is best understood as a means of allowing authors

to ‘retract the economic rights that they may have assigned or licensed to a third party in

order to enable that third party to exploit the work.’” (quoting Cyrill P. Rigamonti,

Deconstructing Moral Rights, 47 H

ARV. INT’L L.J. 353, 362 (2006))).

136

See id.

137

Id. (“[T]he author . . . enjoys the right to determine whether a work should be

withdrawn from the public if it no longer reflects the author’s convictions or spirit.”).

138

See Berne Convention, supra note 2, art. 6bis(2) (“The rights granted to the author

in accordance with the preceding paragraph shall, after his death, be maintained, at least

until the expiry of the economic rights . . . .”).

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reasons exist for introducing noneconomic, or

inspirationally based, motivations into the dialogue

on authors’ rights.

139

Professor Kwall’s model for a new moral rights agenda for the

United States is significantly broader than Professor Netanel’s

model. In particular, Professor Kwall rejects the notion that an

American moral rights agenda should focus solely on the right of

attribution.

140

As Professor Kwall’s agenda is fairly broad, she

consciously focuses on general themes rather than technical

details.

141

Her model would exclude from moral rights coverage

works that are largely functional as opposed to highly artistic.

142

This would address concerns about the improper extension of

moral rights to works that do not necessarily reflect the personality

of the author such as computer software and largely functional

databases.

143

Somewhat consistently with Professor Netanel’s approach,

Professor Kwall’s model would include broad protections for

attribution rights and narrower protections for integrity rights.

144

Under the Kwall model, the attribution right would incorporate the

right to publish anonymously or pseudonymously and to later

139

KWALL, supra note 1, at 9.

140

See id. at 144 (“[A]lthough attribution may present a more clear-cut, and easier to

administer area than the right of integrity, both are deeply concerned with the author’s

dignity and esteem. In order for a right of integrity to be viable in the United States, it

will need to balance carefully competing interests and incorporate a large degree of

cabining measures.”).

141

See id. at 147 (“The proposal I develop . . . does not attempt to address every

possible issue in connection with enhanced moral rights legislation. On the contrary, it

explores some general themes and offers guidance with respect to how these themes can

impact the mechanics of a new statute.”).

142

See id. at 148 (“[M]oral rights should be applicable to works manifesting heightened

originality with substantial creativity. If Congress were to follow this approach, it would

be appropriate to exclude completely works from coverage that are largely functional and

therefore lacking in significant artistic characteristics.”).

143

See LEAFFER, supra note 3, at 400 (“[S]ome works are simply not appropriate for

moral rights, such as computer programs, databases, and other functional works. These

kinds of works that have little or no artistic, personal, or cultural heritage are ill-suited for

moral rights protection.”).

144

KWALL, supra note 1, at 149 (“[A]ttribution rights should be defined far more

broadly than integrity rights.”).

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claim authorship if the author so desired.

145

This is important in

Professor Kwall’s view because these authorship decisions

“represent branding choices that can be a fundamental part of the

author’s meaning and message.”

146

In terms of remedies, Professor Kwall would prefer that

violations of the attribution right be enforced by declaratory relief

that governs future distributions of an infringing version of a

work.

147

Damages should generally not be an available remedy for

an infringement of the attribution right because of the typically

noneconomic nature of the injury to the author.

148

In terms of the right of integrity, Professor Kwall suggests that

the right should be narrowly tailored to “vindicate the author’s

right to inform the public about the original nature of her artistic

message and the meaning of her work.”

149

This could be achieved

through a requirement that the downstream modifier of the work

provide a disclaimer informing the public of the author’s objection

to her usage of the work.

150

Of course, as recognized by Professor

Kwall, this assumes that the downstream user is not prevented

from making the modification to the work under copyright law.

151

As with the attribution right, remedies under the proposed

integrity right should generally be limited to declaratory relief.

152

In the case of the integrity right, the declaratory relief would

comprise mandating a disclaimer on a downstream use of the

145

Id. (“[The] author should have the right to publish a work anonymously or

pseudonymously, and to claim authorship at a later point in time should she so desire.”).

146

Id. at 150.

147

Id.

148

Id. (“In light of the predominant noneconomic nature of the injury, a damage

remedy should be eschewed except in the following instances: where a clear showing of

economic harm exists as a result of the attribution violation; where the violation is

entirely in the past and future injunctive relief therefore is meaningless; or where

exceptionally willful violations are involved.”).

149

Id. at 151.

150

Id.

151

Id. (“[The proposed integrity right] assumes that, absent the proposed right of

integrity, the actor would otherwise have the unencumbered right to use the author’s

work pursuant to copyright law.”).

152

Id.

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work.

153

Professor Kwall further suggests that in order to obtain

relief, an author must establish that her objections to the use of her

work are “reasonably credible.”

154

In terms of waiver, Professor Kwall would prefer that neither

the right of attribution nor integrity should be waivable.

155

This is

because waiver is inconsistent with the notion that the rights

protect authorial dignity,

156

and because allowing waivers

exacerbates inequalities of bargaining power that often exist

between creators of works and those with whom they contract.

157

Professor Kwall further notes that because of the limited nature of

protection for the integrity right under her model, the typical

justifications for supporting a waiver provision are not present.

158

In other words, where a downstream user is not prevented from

engaging in creative expression, but is only required to issue a

disclaimer, that user should not require a waiver of the integrity

right. The integrity right does not prevent her from engaging in

her downstream creative activity.

Professor Kwall also advocates a system in which moral rights

last only for the author’s lifetime.

159

Although this view is

inconsistent with the Berne Convention,

160

Professor Kwall

153

Id. (“As with the attribution right, an author should be entitled to enforce the right of

integrity prospectively through declaratory relief mandating a disclaimer. Further, an

author should be unable to enjoin a proposed use accompanied by an appropriate

disclaimer. For prior objectionable uses lacking a disclaimer, an author should be able to

obtain damages in cases involving clear economic harm, willfulness, or where the

conduct is entirely past and the possibility of a prospective disclaimer is unrealistic.”).

154

Id. (internal quotation marks omitted).

155

Id. at 156 (“In light of this proposal’s circumscribed protections for moral rights,

formal waivers should be inoperative as a general matter.”).

156

Id. at 156–57 (“Given that moral rights are designed to recognize inspirational

motivations for creativity, any system sanctioning waiver is inconsistent from a

theoretical standpoint with the justifications for adopting these protections. In other

words, if moral rights protections are intended to redress violations of authorship dignity,

they should not be capable of being waived.”).

157

Id. at 157 (“Moreover, allowing waiver exacerbates the disparity of bargaining

power between authors and those with whom they contract.”).

158

See id.

159

Id. at 159 (“[F]rom a theoretical standpoint, moral rights protection should exist for

the author’s lifetime, but not beyond.”).

160

Id. at 160 (“[The Berne Convention] provides that the covered rights are to be

maintained after the author’s death ‘at least until the expiry of the economic rights.’”).

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supports the model on the basis that no one other than the author

can “substitute a personal judgment regarding the substance of the

author’s meaning and message of her work.”

161

This includes

members of the author’s family.

162

Like Professors Litman and Netanel,

163

Professor Kwall also

notes that modern digital technology would be very helpful in

implementing and enforcing the rights she proposes.

164

Where

compliance with the moral rights focuses on appropriate attribution

and disclaimers, this is fairly easily achieved digitally, at least with

works in digital formats. As noted by Professor Netanel, copyright

management information is routinely incorporated into digital

works.

165

Other information—such as the way in which the author

wishes to be attributed or the fact that the author objects to a

particular downstream treatment of a work—is likewise easily

incorporated into a digital work. Taking Professor Kwall’s model

a step in the direction of Professor Netanel’s model, one could

suggest that any new moral rights legislation should prevent the

removal of attribution information or disclaimers.

Returning, then, to our authors of supernatural fiction from Part

II, the question arises as to whether Professor Kwall’s model

would assist with the concerns raised by the authors in relation to

their works. As noted in Part III.B, any moral rights model that

focuses purely on attribution will be of little help for the kinds of

concerns described in Part II.

166

This is because none of the

authors were particularly concerned about attribution. All of the

authors had raised some concerns about unauthorized fan fiction,

but the concerns had more to do with the existence of the fan

fiction than with the lack of attribution of the original work.

161

Id.

162

Id. (“No one, not even the author’s spouse and children, can substitute a personal

judgment regarding the substance of the author’s meaning and message of her work.”).

163

See supra Part III.B.

164

KWALL, supra note 1, at 154 (“[I]n many instances digital technology and the

Internet offer efficient and inexpensive means of complying with these suggested

reforms.”).

165

NETANEL, supra note 9, at 216.

166

See supra Part III.B.

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In fact, in her model, Professor Kwall particularly suggests that

enforcement of moral rights may generally be relaxed in the case

of parodies. In the context of a parody, the source of the material

being parodied is obvious from the context, and it is also obvious

that the work is unlikely to have been authorized by the original

creator.

167

Thus, in Professor Kwall’s words, “when works are

parodied, an implicit disclaimer essentially exists.”

168

While

parody does raise separate issues from fan fiction, there are clear

parallels. In both cases, the author may object to a downstream

expressive activity that makes unauthorized use of her original

work. Further, in both cases it is relatively clear from the context:

(a) that the author was the creator of the original work upon which

the new work is based; and (b) that the author is unlikely to have

formally approved creation of the new work. Thus, applying

Professor Kwall’s thoughts about parody to fan fiction, a new

moral rights agenda may not even require attribution or disclaimers

in the context of fan fiction.

Whether or not attribution or disclaimers would be required for

fan fiction under the Kwall model, the concerns raised by Anne

Rice, Charlaine Harris, and to some extent by Stephenie Meyer

about fan fiction are not fully addressed by the model. Both Rice

and Harris vehemently object to fan fiction—Rice to the point of

expressly attempting to ban it.

169

Thus, simply requiring that

authors of fan fiction attribute the original source and issue a

disclaimer does little to help these authors, particularly given that

attribution and disclaimers may effectively be implied in the fan

fiction context in any event.

Again, this may well be as it should be. The entire thrust of

Professor Kwall’s model, as with Professor Netanel’s, is to

preserve First Amendment values and a vibrant public domain.

167

KWALL, supra note 1, at 163 (“It is precisely because the public understands that . . .

parodies are not authorized that the public is not deceived as to the persona’s involvement

in parody. Moreover, parody lacks the necessary public linkage between the author and

the externalized commodity because it is apparent that the author has not authorized the

use.”).

168

Id. at 159.

169

Anne Rice, Anne’s Message to Fans, Anne Rice Readers Interaction,

ANNERICE.COM, http://www.annerice.com/ReaderInteraction-MessagesToFans.html (“I

do not allow fan fiction. The characters are copyrighted.”) (last visited July 14, 2010).

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Thus, a moral rights agenda that would effectively ban or severely

restrict fan fiction activities is well outside the aims of these

models. As noted in Part III.B, it is possible that copyright law

may in fact do some of this work in cases where fan fiction is

found to be an unauthorized derivative work and not justified

under the fair use defense.

170

There are arguments both ways on

these questions. A number of commentators suggest that much fan

fiction, even if an apparent infringement of the derivative work

right,

171

is nevertheless excusable as a fair use,

172

notably in the

case of noncommercial fan fiction.

173

Again, the Midnight Sun scenario is potentially more

problematic than questions about fan fiction, even under the Kwall

model. As noted in Part III.B, Meyer’s concern about the

unauthorized postings of Midnight Sun on the Internet had nothing

to do with attribution. She was concerned with her unfinished

work being made available to the public before she was ready to

share it.

174

Even an integrity right is of little use here because a

third party did not distort, modify or mutilate her work, but rather

posted it without authority. Interestingly, Meyer’s self-imposed

remedy consisted of her own disclaimer of sorts:

I’d rather my fans not read this version of Midnight

Sun. It was only an incomplete draft; the writing is

messy and flawed and full of mistakes. But how do

I comment on this violation without driving more

people to look for the illegal posting? It has taken

me a while to decide how and if I could respond.

But to end the confusion, I’ve decided to make the

draft available here (at the end of this post). This

170

See supra Part III.B.

171

See 17 U.S.C. § 106(2) (2006) (reserving the right to create derivative works as an

exclusive right of the copyright holder).

172

Hetcher, supra note 67 (noting that there is a strong argument that much remixing

and fan fiction is fair use).

173

Id. at 1907–12 (applying a fair use analysis to typical noncommercial fan fiction and

arguing that much noncommercial fan fiction is likely to be fair use).

174

Stephenie Meyer, Midnight Sun: Edward’s Version of Twilight,

STEPHENIEMEYER.COM (Aug. 28, 2008), http://www.stepheniemeyer.com/midnightsun.

html.

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way, my readers don’t have to feel they have to

make a sacrifice to stay honest.

175

She is basically saying that the draft she has released online is

not in a form that she wants her fans to read, but she understands

that some people will want to read it anyway. She would rather

they read her official version so they can “stay honest.”

176

This is

somewhat analogous to Professor Kwall’s idea of using

disclaimers as a remedy for the integrity right. Professor Kwall’s

disclaimers work similarly by effectively saying that the work in

question is not in a form the original creator has authorized.

177

The

idea is to maintain the original author’s dignitary interests in her

work without stifling downstream creativity. Meyer’s use of a

disclaimer with respect to her own work serves much the same

function. It suggests that she has not truly supported release of the

work in the form in which she has ultimately released it but she

understands the public interest in accessing the work so she is

prepared to make that sacrifice. While Professor Kwall’s focus is

on preserving a vibrant public domain, and Meyer’s focus is on

supporting her fans who want to read the work, the end result is

similar. At the end of the day, more creative work is released for

public consumption than would otherwise be the case, but the

author’s objections to the form of the work are publicly noted.

As with the fan fiction examples, it is possible that Meyer

could have used copyright law to obtain injunctions against the

unauthorized postings of her incomplete manuscript. However, as

noted in Part III.B, the injuries she claims to have suffered have

more to do with her own artistic integrity than with concerns about

pecuniary advantage.

178

She seems more concerned with the way

in which the unauthorized release of the manuscript has interfered

with her creative processes than with her ability to actually control

the unauthorized distributions. In her response to the unauthorized

postings, she opts for more distribution of the work by officially

reproducing it on her own website, but at the same time she

175

Id.

176

Id.

177

See supra note 167.

178

See supra Part III.B.

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withdraws her earlier promise to her fans to complete the

manuscript.

CONCLUSION

What conclusions might be drawn from the above discussion of

recent American moral rights models juxtaposed against comments

by supernatural fiction authors about preferred uses of their works?

Focusing first on the moral rights models, it seems clear that the

new moral rights agendas proposed by Professors Netanel and

Kwall are moving away from the notion of compliance with the

requirements of the Berne Convention. Professor Netanel’s model

falls short of Berne obligations by focusing only on the right of

attribution and setting aside the right of integrity.

179

Professor

Kwall’s model, whilst incorporating a right of integrity, includes

only a narrow protection for the right based on a requirement of

disclaimers placed on unauthorized reworkings of an original

work.

180

This may, in fact, be in compliance with Berne, as the

Convention says nothing about precisely how moral rights are to

be enforced within domestic legal systems.

181

Nevertheless,

Professor Kwall’s model falls short of Berne compliance in

requiring that the suggested moral rights terminate on the death of

the original author.

182

The reasons that both the Netanel model and the Kwall model

are more restricted than the Berne requirements have much to do

with the need within the United States to incorporate powerful

constitutional guarantees such as the right to free speech under the

First Amendment and potentially concerns about unauthorized

takings.

183

It may be the case that the United States is not in a

position to fully comply with its Berne obligations consistently

with its own Constitution. This may be a problem in the

179

See supra Part III.B.

180

See KWALL, supra note 1, at 151 (suggesting that in cases where a work that is still

identifiable as the original author’s work is repurposed by a second person, that person

“should be required to provide a disclaimer adequate to inform the public of the author’s

objection to the modification or contextual usage”).

181

See generally Berne Convention, supra note 2.

182

KWALL, supra note 1, at 160.

183

See supra Part III.A.

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578 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 21:537

international arena going forward. However, in the meantime it

may be appropriate for scholars like Professors Netanel and Kwall

to advocate moral rights agendas that are limited consistently with

constitutional values.

Both the Netanel model and the Kwall model place significant

emphasis on the right of attribution as a right that is consistent with

constitutional values and a right that is capable of giving effect to

powerful conceptions of authorial dignity.

184

Both professors

further note the usefulness of modern digital technologies in

facilitating compliance with their moral rights agendas.

185

Professor Kwall extends on the attribution right by incorporating a

limited right of integrity in her model that is enforceable generally

by disclaimer.

186

Again, this is likely consistent with American

constitutional values and can take advantage of available digital

technologies for effective enforcement.

While likely consistent with constitutional values, neither the

Netanel model nor the Kwall model redresses the harms alleged by

the supernatural fiction authors discussed in Part II. Again, this

may be perfectly appropriate. Both models, in fact, consciously

seek to protect fan fiction—and some other expressive uses of

protected works

187

—against prohibitive and potentially

monopolizing claims by authors.

188

The adoption of a moral rights

agenda will always necessitate a careful balancing act between the

rights of original authors, those with whom they contract to publish

and disseminate their works, and audiences for their works. The

kinds of balances sought to be struck by Professors Netanel and

Kwall consciously attempt to prioritize downstream creative uses

of works against author complaints, except to the extent that the

downstream uses harm the author by creating a false impression

about the author’s intended meaning or message.

184

See supra Part III.B; Part III.C.

185

See supra Part III.B; Part III.C.

186

See supra Part III.C.

187

See, e.g., KWALL, supra note 1, at 163 (noting the importance of protecting parody

from excessive moral rights claims).

188

Id.; NETANEL, supra note 9, at 215 (noting concerns that broad European-style moral

rights protections could impede downstream uses of protected works).

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2011] MORAL RIGHTS AND SUPERNATURAL FICTION 579

If this is the accepted aim of a new moral rights agenda, then

downstream uses such as fan fiction and parody should not be

prohibited by new moral rights laws, although disclaimers may be

required in some cases. Of course, none of this speaks to the

extent to which copyright law may negatively impact these

downstream uses. It is still an open question whether much fan

fiction is an infringement of the derivative work right under

and Kwall moral rights models each side-step this issue. Professor

Netanel’s model simply has no impact on this question because it

focuses on attribution, rather than integrity, the latter right being

the one typically implicated in the fan fiction context. Professor

Kwall’s model would only apply the moral right of integrity in

cases where the downstream expressive use was not otherwise

prohibited by copyright law. In other words, her model assumes

the inapplicability of copyright law to a particular use for the right

of integrity—and associated disclaimer remedy—to be

applicable.

189

One of the more useful takeaways from this discussion might

be that both copyright law and moral rights law require important

balancing acts between the interests of multiple stakeholders.

Even the most well thought out models will have to prioritize

certain interests over others. Thus, in order to preserve First

Amendment values in the United States, it may be the case that

authors simply lose the ability to control a number of downstream

uses of their work. Savvy authors with sufficient bargaining power

may choose to impose restrictive copyright license terms on

downstream uses of their work. However, not all creators have

sufficient bargaining power to protect their interests in this way.

Many do not retain copyright in their works. Additionally, in

situations where there is no contract—such as the Midnight Sun

scenario described in Part II—contractual restrictions are

irrelevant.

189

See KWALL, supra note 1, at 151 (noting, for example, with respect to her proposed

right of integrity that her proposal “assumes that, absent the proposed right of integrity,

the actor would otherwise have the unencumbered right to use the author’s work pursuant

to copyright law”).

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If one adopts a moral rights agenda based on ideas advocated

by Professors Netanel or Kwall, authors are likely to find

themselves relying increasingly on copyright and contract law to

protect the kinds of interests identified in Part II. There is nothing

necessarily wrong with this result as a matter of practice.

However, it is useful in debating new moral rights agendas to

identify and acknowledge the kinds of interests that are unlikely to

be protected by such proposals. Authors may gain some comfort

from thinking about alternative methods for protecting interests

that are unlikely to be covered by moral rights. Alternatively,

authors may over time become more comfortable with the idea of

certain kinds of uses of their works, such as fan fiction. Stephenie

Meyer may be right in thinking that fan fiction is a good way for

new writers to cut their teeth within the fiction medium, while

hoping that they ultimately devise their own unique characters and

scenarios for their own uses.

190

Genet, supra note 82 (“As long as the writers of [fan fiction] move on from it. I

think it’s sad to spend so much energy on something you can’t own. And that makes me

a little bit sad because all these talented kids should be, ya know, get your story out from

under the bed [sic] and get it out there.” (quoting Stephenie Meyer)).