Re: Moral Rights

From: Bob Stock <bstock[_at_]ucla.edu>
Date: Wed, 07 Oct 1998 08:41:08 -0700

On 10/6/98, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> Are the moral rights of a visual artist under Copyright Act section
> 106A descendable?
>
> That is, do the heirs of a deceased artist inherit that artist's 106A
> rights to the extent that they can exercise them or assign them to
> another?

My answer would be no.

All of the rights conferred in 106A belong only to the author:

"the author of a work of visual art--

(1) shall have the right --

• * *

(2) shall have the right

• * *

(3) . . . shall have the right"

If (a) doesn't make that clear enough, (b) does:

"Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner."

Paragraph (d) addresses the duration of those rights. (d)(1) says that in any work created after the effective date of the Act the author's rights "shall endure for a term consisting of the life of the author." (d)(2) is a little stranger. It says that if a work was created before the effective date and the copyright still belongs to the author, the rights in 106A(a) expire at the same time as the rights in 106. However, the rights in 106 belong to the copyright owner and endure for the author's life plus 50 years. They are descendible. I don't have the legislative history of this Act, and I doubt it has been around long enough to have this particular provision tested, but my *guess* is that the idea of the Act is to have these rights last no longer than the life of the author, but perhaps shorter. Thus, if the rights of section 106 were ever shortened to less than the life of the author (as they used to be at one time), then authors of works created before the Act would have rights for a shorter period of time. I can make no sense of this paragraph otherwise because the directives of the Act are so clear that these rights belong only to the author and not to transferees. Strangely enough, (d)(3), which addresses joint works, says that the term is of the last surviving author of the work, making no distinction between works that were created before and works that were created after the Act.

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Bob Stock <bstock[_at_]ucla.edu>
UCLA School of Law '98
http://www.geocities.com/Paris/1206/

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Received on Wed Oct 07 1998 - 15:39:22 GMT