If you're in the entertainment industry, you may have come across language in a contract that says you agree to "waive your moral rights." It's very common in contracts for creative work. So, what are your moral rights ﹣ and is it okay to waive them?
What are moral rights?
When you create a piece of art ﹣ whether it's a photograph, a film, a song, or poem ﹣ you automatically get moral rights in that work. Broadly speaking, these rights give you the right to:
Be credited for your work
Prevent your work from being distorted, mutilated, or modified
Prevent your work from being used in a way that hurts your honour or reputation
Snow v. Eaton Centre (1982)
A good example of moral rights in action comes from the Canadian case Snow v. Eaton Centre. If you've visited the Eaton Centre in Toronto, you've probably seen Michael Snow's art installation Flight Stop ﹣ it features a flock of Canada geese hanging from the ceiling. During Christmas of 1981, the Eaton Centre decided to hang red ribbons around the necks of the geese. Michael Snow sued the Eaton Centre for violating his moral rights by altering his work. He argued that the red ribbons distorted and mutilated his work and affected his artistic reputation. The court agreed and ruled in Snow's favour.
Moral Rights Can't be Transferred
An important thing to know about moral rights is that you can't transfer them to another person or company. So, in the case of Michael Snow, he couldn't transfer or sell his moral rights in Flight Stop to the Eaton Centre. However, you can waive your moral rights. Waiving your moral rights means you say: "I recognize that I have moral rights tied to this work, but I'm going to disregard them for your benefit."
Why Do Companies Ask Artist to Waive their Moral Rights?
Generally, companies ask artists to waive their moral rights for two main reasons. Firstly, so they don't have to identify the artist every time the work is published, played, or shown in public. And second, so they can make changes to the work without the risk of the creator objecting to those changes.
If, in his contract with the Eaton Centre, Michael Snow had waived his moral rights in his work, Eaton Centre likely would have been free to hang the red Christmas ribbons on the geese. And Michael Snow wouldn't have had a very strong case.
So, Should I Waive My Moral Rights?
It depends on the context! In some cases, it's okay to waive your moral rights. In fact, for some contracts, you may not have a choice ﹣ it's a non-negotiable. Still, it's important that you try and negotiate a moral rights waiver that's as narrow as possible so you retain the maximum amount of control over your work.
There's a lot at stake when it comes to moral rights, so always talk to an entertainment lawyer if you receive an agreement that says something about waiving your moral rights.
Have questions about moral rights? Contact Caleb Ellis below.
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