Re: Author's Rights

> Mike Holderness writes, amid much that I agree with:
>>
>> And, yes, there is an argument for the author _in_principle_
>> to "control all possible uses of his or her creation", and it's
>> about authentication.
>>
>> A news photograph taken by a French citizen is inherently more
>> trustworthy than one taken by a US citizen or UK subject.
>>
>> The French photographer has the absolute, inalienable right to
>> sue for "derogatory treatment" of her work if it is manipulated
>> and distorted. This is what is poorly translated into UK law,
>> and just barely touched on in the US Act, as "the 'moral
>> right' of integrity".
>>

.....
>
> Moral rights probably do help to promote authenticity (though they
> would do nothing to prevent the photographer herself from altering
> her image if it suited her to do so). But this right comes at an
> enormous cost -- we deny to others the right of alteration and
> improvement. I edited your e-mail message before I responded to
> it: shortening it, removing earlier messages, and focusing attention
> on what I wanted to reply to. Should I really be prohibited from
> doing that in the name of "authenticity"?
>
> Mark Lemley
> Assistant Professor, University of Texas School of Law
> Of Counsel, Fish & Richardson, P.C.
> mlemley[_at_]mail.law.utexas.edu

However, moral rights can also degrade authentication. In French law, with the artist having the right to affirm or deny authorship, which for some purposes descents to her executor, independent authenticators can sometimes be estopped from appraising the authenticity of a piece of work. An independent appraisal can sometimes even be treated as a defamation of title. Frankly, in the current market, I would rather have an independent assessment of authenticity than one from the estate of, for example, Dali, Picasso, or Chagall.

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Buford C. Terrell                       1303 San Jacinto Street
Professor of Law                              Houston, TX 77002
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terrell[_at_]stcl.edu                            fax   (713)646-1766

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