Thanks to the First Amendment and longstanding copyright limitations, copyright holders don’t have the legal right to prevent others from using their works to express messages that they disagree with or find offensive, nor do they have a right to prevent someone who lawfully purchases a copy of their work from reselling it, repurposing it, or destroying it entirely.
That’s because copyright law in the United States doesn’t provide authors the ability to launch lawsuits over their “moral rights” (except for some works of visual art covered by the Visual Artists Rights’ Act). And that’s a good thing – by limiting authors’ abilities to control how their works are used, U.S. copyright law creates space for downstream creators and users to adapt and remix existing works to create new interpretations and meanings, without facing a veto from the original author. It also allows those who own physical copies of copyrighted works to use those copies in the ways that make most sense for them – they can annotate them, take them apart and reassemble them into new creations, give them away, or even destroy them.
We have fought for decades to improve copyright law to create more space for downstream uses, but the Copyright Office sought comments [PDF] on proposals that would do the exact opposite: creating a new right of integrity “to prevent prejudicial distortions of the work” and an unnecessary and potentially damaging attribution right (to be credited as the author).
The fight over moral rights, particularly the right of Integrity, is ultimately one about who gets to control the meaning of a particular work. If an author can prevent a use they perceive as a “prejudicial distortion” of their work, that author has the power to veto others’ attempts to contest, reinterpret, criticize, or draw new meanings from those works.
These sorts of uses are paradigmatic fair uses, protected under traditional copyright law. But in countries that have adopted moral rights frameworks, authors (and their heirs) have the power to restrict certain uses or interpretations of their works that they disagree with. For example, as Peter Baldwin notes in his book The Copyright Wars, in France, George Bizet’s heirs succeeded in having Otto Preminger’s reinterpretation of the opera Carmen, Carmen Jones, banned, because they objected to the filmmakers’ setting of the opera among African Americans.
Further, U.S. defamation law already provides remedies in appropriate cases when false, harmful statements are made about a person. If a work is used or falsely attributed in a way that causes real reputational harm to the author, defamation law provides the appropriate remedy. And, unlike a new right of integrity, defamation law contains safeguards designed to prevent the law from suppressing or punishing speech protected under the First Amendment.
The proposed attribution requirement presents lesser, but still significant harms, without adding much benefit. An additional right of attribution is likely to be redundant to existing rights under copyright law, which already provide copyright owners with broad powers to control dissemination of their works. With a right of attribution, copyright holders would have yet another tool to police otherwise non-infringing uses of a work, like fair uses.
A fixed, statutory attribution right is also inconsistent with the rapid and diverse participatory cultural practices that prevail online. Cultural symbols are often rapidly reworked and shared, and norms around attribution vary dramatically across contexts. Many creative communities have established norms regarding when and to what extent attribution is needed [PDF]. A rigid attribution requirement could disrupt these practices and impede valuable downstream creativity, while creating further opportunities for copyright trolling.
A statutory right of attribution could also interfere with privacy protective measures employed by online platforms. Many platforms strip identifying metadata from works on their platforms to protect their users' privacy, If doing so were to trigger liability for violating an author’s right of attribution, platforms would likely be chilled from protecting their users’ privacy in this way.
For centuries, American courts have grappled with how to address harm to reputation without impinging on the freedom of speech guaranteed by the First Amendment. And as copyright’s scope has expanded in recent decades, the courts have provided the safeguards that partially mitigate the harm of overly broad speech regulation.
As we told the Copyright Office, introducing new rights to control the use and meaning of copyrighted works would be a step in the wrong direction.