They always talk handsomely about the literature of the land, always what a fine, great, monumental thing a great literature is, and in the midst of their enthusiasm they turn around and do what they can to discourage it.

—Samuel Clemens, speech in Congress, 1906

The court ruled against Clemens, mainly because he had not copyrighted his works:

Literary productions, published without being secured to the author by copyright, become public property and may be republished by any one, and the person making such republication has the right to give the name of the author.

The use of a nom de plume or assumed name by an author, does not entitle him to protect his writings published under such assumed name without copyright to any greater or different extent than if published under his Christian or baptismal name.

Trade marks only protect vendible merchandise, and can not be applied to or protect literary property.

An author has a right to restrain the publication of any of his literary work which he has never published or given to the public, but the publication of literary matter without copyright is a dedication of such matter to the public (http://www.twainquotes.com/CourtDecision.html).

Clemens' lawsuit was filed years before the moral rights clause that protects authors' and artists' personal, noneconomic rights and reputations became part of The Rome Act of 1928 (a predecessor of the Berne Convention, which recognizes international copyright protection for works created by member nations). In light of the Tasini ruling, I've been wondering if the next step for authors of literary works is to advocate the passage of moral rights legislation in the U.S. 
 

The Origin of Moral Rights
"Moral rights" is the English translation of the French phrase droit moral. Moral rights differ from copyright. Copyright protects property rights, which entitles authors to publish and economically benefit from their published works. Moral rights safeguard personal and reputational rights, which permit authors to defend both the integrity of their works and the use of their names. In countries that legally recognize moral rights, authors have redress to protect any distortion, misrepresentation, or interference of their works that could negatively affect their honor. Moral rights are often described as "inalienable." French law recognizes perpetual moral rights. In Germany, moral rights end when the author's copyright expires (70 years after he or she dies), while in other countries, moral rights terminate with the author's death.

For a span of years, various authors and artists have filed lawsuits regarding the use of their works or, in the case of Samuel Clemens, the use of their names on works they did not authorize. The first legal international treaty to recognize the concept of moral rights was The Rome Act of 1928. Article 6bis of the current Berne Convention treaty includes a moral rights clause that protects authors' rights to decide whether and when to publish works, claims of authorship after the work is published, and preservation of the works' integrity:

(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 modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. 

(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. 

(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed (http://www.wipo.org/treaties/ip/berne/berne01.html).
 

Moral Rights in the U.S.
The U.S. resisted joining the Berne Convention for over 100 years, mainly because it needed to significantly revise its copyright law to become more harmonious with the treaty. One major issue for the U.S. was its lack of willingness to accept copyright protection on unregistered works and works without copyright notices. When the U.S. finally joined the Berne Convention in 1989, Congress had enacted legislation to protect authors' copyrights regardless of whether or not they had registered their works or placed copyright notices within their publications.

A secondary concern for the U.S., but one without much press coverage, was the moral rights issue. Although the U.S. has not enacted moral rights legislation for literary or digital works, various national and state laws regarding copyright, libel, defamation, misrepresentation, trademarks, and unfair competition (the Lantham Act) seemed to satisfy the Berne Convention's requirements, thus allowing the U.S. to become a signatory.

Soon after the U.S. joined the Berne Convention, the concept of moral rights gainedpopularity within the visual arts community. The following year, Congress signed into law the Visual Artists Rights Act of 1990 (VARA). Under VARA, authors of visual works (paintings, drawings, sculptures, photographs, prints) are granted two rights: the right of attribution and the right of integrity. 

The right of attribution allows an author "to claim authorship ..., to prevent the use of his or her name as the author of any work of visual art which he or she did not create, [and] to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation." The right of integrity permits an author "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation [and] to prevent any destruction of a work ofrecognized stature" (http://www.loc.gov/copyright/title17/circ92.html#106a). Both rights last for the author's lifetime—i.e., they are not transferred to heirs, as in the case of copyrighted works.

In 1996, the U.S. Copyright Office issued a report about the effects ofVARA. Six years earlier, when Congress had passed the VARA legislation, there was concern about whether or not artists would waive their moral rights by signing contractual agreements with the buyers of their works. A survey was sent to 6,800 artists, artists' representatives, art students, and art-relatedorganizations. More than 1,000 surveys werereturned to the Copyright Office. The results "reflected a low level of artist awareness about VARA, particularly by those earning less than $10,000 annually from the sale of their art, and those not represented by an agent or gallery."

The Copyright Office recommended onemodification to VARA. Since "VARA inappropriately permits one artist to waive the moral rights of the other artists in a jointwork," the Registrar of Copyrights suggested that "Congress may wish to amend the statute to provide that no joint artist may waive another's statutory moral rights without the written consent of each joint artist whose rights would be affected" (http://www.loc.gov/today/pr/1996/96-045). To date, Congress has not amended the statute, and the clause regarding joint works remains in the copyright legislation: "In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors."

Although literary and digital moral rights are widely recognized in Europe, they continue to be limited in scope within the U.S. Some countries have enacted national laws to expand moral rights as outlined in the Berne Convention. In addition to the rights of integrity and attribution, France, for example, includes the right of disclosure (i.e., an author can decide when and where to publish, including providing written consent to a publisher about any modifications to the works), the right to withdraw or retract works (i.e., if an author's views change, the author may purchase all remaining copies of the works and prevent the printing of additional copies), and the right to reply to criticism. French law even allows these moral rights to be transferred to authors' heirs.
 

All-Rights Contracts
Authors and artists have legitimate reasons to be concerned about the display of their works. Imagine an author submitting a manuscript without error and a publisher introducing grammatical and spelling mistakes when the manuscript is edited and typeset. Surely the publication of such a work would embarrass the author. 

Publishers may create derivative works of several authors' writings. The resulting publications may be poorly received by the public, thus humiliating the authors. If the publisher chooses not to include the authors' names on a good publication, those authors will not receive favorable public reaction to their works.

Those who purchase artists' works may paint over or desecrate the works. Black and white films have become colorized. Sculptures that were commissioned for specific buildings may be removed, repainted, or altered.

Notwithstanding these scenarios, publishers have been drafting all-rights contracts to discourage authors and artists from invoking their moral rights. One author states that all-rights contracts are "dangerous.... Their whole purpose is to undermine the crucial principle that each right in a contract must be claimed separately and specifically, and that any right not claimed remains with the author" (Nancy Updike, "Green Eggs and Lawsuits—Artists, Contracts and Money," LA Weekly, July 20­26, 2001; http://www.laweekly.com/ink/01/35/coverupdike.shtml).

Despite years of legislation, the various viewpoints of publishers and authors remain conflicted. As Samuel Clemens stated at the beginning of the 20th century: "Only one thing is impossible for God: to find any sense in any copyright law on the planet. Whenever a copyright law is to be made or altered, then the idiots assemble." 
 
 

Stephanie C. Ardito is the principal of Ardito Information & Research, Inc., a full-service information firm based in Wilmington, Delaware. Her e-mail address is sardito@ardito.com.