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Wednesday, 5 September 2012

Attribution Right? In a Letter of Recommendation?

Let's start with an admission: this Kat has always found moral rights a bit hard to grasp. Don't get me wrong--I am all in favour of protecting one's personhood and reputation. But the notion of a creator's personality being a priori intertwined with his work is simply too metaphysical for me, I guess. No matter--the law is the law, and where the local copyright law includes protection for moral rights, this Kat has done his best to represent his clients' interests to the full in this regard.

Still, the application of moral rights protection in diverse contexts led me to think about the issue in a perhaps an unconventional setting--letters of recommendation. Thus, this Kat was recently asked to write a letter of recommendation for a young lawyer with whom he had worked. "My pleasure", I replied and I then set out to draft such a letter. Since each request for a letter of recommendation is different, the letter had to be carefully crafted so as to balance the dignity of the lawyer who is being recommended, on the one hand, and my professional reputation, on the other. It is no surprise, therefore, that such a letter takes this Kat multiple hours to write.

So far, so good. But what happens if, instead of drafting each letter anew, this Kat simply looked for forms of letter of recommendation via an internet search. For purposes of discussion, let's say that he finds such a site--  [a quick search on the internet indicates that there do appear to be such sites.] The hypothetical site is solely the work of ABC, who has taken upon himself to draft all of the various forms of letter of recommendation that are available for download from the site. For payment of a fee, I can download a form of letter of recommendation and use it as I wish. Let's assume that the Terms of Use permit me only one licensed use per form per payment. The Terms of Use are silent with respect to ABC's moral rights with respect to the letter of recommendation that I have selected.

Let’s assume that I simply reproduce the entire text, augmented only by filling in the correct names and addresses and dating the letter. Do I have an obligation to attribute ABC as the author of the letter? In jurisdictions that require that the author assert his right to be identified as author of the work, the answer would seem to be clear--no assertion was made by ABC. But there are jurisdictions that provide for moral rights protection, and which do not require that the author assert his rights in this regard. As a matter of moral rights law, what is my legal obligation here? 

It makes no practical sense that the letter of recommendation should attribute ABC as the ultimate author of the letter. But why should this be so as legal matter? Is there a principle that moral rights attribution should be given only in circumstances where it is reasonable? If so, how does one identify such circumstances? Or perhaps it is possible to claim that there is a constructive waiver given by ABC to anyone who licenses one of his forms of letter of recommendation? Or is there some other rationale? 

Pushing forward with the hypothetical, let us assume that I in fact use the form of letter of recommendation several times, in breach of the Terms of Use, and that this becomes known to ABC. He then files an action against me, claiming breach of contract, copyright infringement and violation of his attribution right. Each claim will allow ABC separate relief, limited only by the prohibition against double recovery for the same harm. Breach of contract against this Kat--ok, liable as charged. Infringement of copyright against this Kat --ok, liable as charged. But what about that claim for violation of ABC's moral rights. The claim just seems inappropriate. But why, exactly? This Kat does not have a ready answer.

6 comments:

Tom Ang said...

Moral rights can be waived (in some jurisdictions at least) by word or by deed. In your scenario, my instinct is that in ABC offering his work to be used with modifications he thereby waives his integrity right, which arguably undermines his other moral rights. An artist can't trade his moral rights but he can act in ways which weaken them.

Anonymous said...

Does the answer not lie in the fact that by creating an offering which clearly involves users personalising the letter, the copyright owner has impliedly waived any moral rights regarding paternity (i.e. the owner knows full well that the letters will be used and held out by users as their own and he has consented to that by making the offer in the first place)? The breach of contract or copyright infringement issues give rise to a right in damages but those would be the only rights which would apply given the waiver of moral rights.

Eva N. Dzepina, LL.M. said...

The initial question would be anyway if such a text is protected by copyright at all. At least according to German Copyright Law I would say that general phrases normally used in such letters are not protected by copyright law as they are "only ordinary handcraft". Without copyright protection, no moral rights. If there is however copyright protection of such a text (which I would doubt) and thus moral rights could be claimed then the intended purpose of use and the use licence re this text would be contradictory to the attribution right. The purpose of the text use is to use it in the users name, not attributing it to the author. The question would be if an author whose rights are infringed can claim more from the infringer than he would be able to claim from a rightful user. Even if the contract or common usage purpose of the text limits the attribution right with regards to the author, the rights infringer can (acc. to German case law) not rely on common use and practice or contract, because the author did not even get the chance to submit to common use and practice or contract in the first place with regards to the infringer. Therefore, if there is copyright at all, in infringement cases there is attribution right, even if there would not be attribution right in lawful use.

Jani McCutcheon said...

In Australia we DO have a reasonableness defence, which would probably work here. The other defence is consent to infringement, which could be an implied consent here.

I agree there must be an implied licence term whereby ABC must waive their right of attribution (or consent to your infringement, however you want to word it). If I am buying a standard form letter of recommendation it is imperative it appears to be personally authored. If I must attribute ABC that goes out the window.

James Wagner said...

There would seem to be an implied waiver. Would the waiver still be applicable though if the contract has been breached, or never formed, due to use beyond the authorized scope (such as multiple reuses). I would think the author's willingness to allow contractual use without attribution would go a long way to minimizing the value of a moral rights claim, but it would seem that in such cases the claim could still be asserted.

Anonymous said...

The situation you describe is the classic ghost writer situation or partial ghost such as a painter who executes most or all of a painting for someone else (the artist?). If the moral right of paternity can not be waived with certainty then the ghost writer scenario won't work for either side. On the other hand, if moral rights can be waived, then how can author's be protected against being forced to waive their moral rights in order to close a deal with a stronger party, or perhaps that is where the "paternity right" meets paternalism. More problematic is the "integrity right" particularly in the field of architecture, wherein a non-waivable "integrity right" will lead to a reactionary result that strives to stem the natural tides of change and freedom to make changes in structures or even to destroy them, in effect a privatized historic preservation rule, albeit one that is for the benefit of a particular individual's ego rather than for a community's benefit and decided by that community. Indeed anyone who in the mid 1980s lost a pleasant urban open space (Federal Plaza in lower Manhattan) to "Tilted Arc" by Richard Serra, which effectively took a public open space and turned it into the base for sculpture of dubious worth, can appreciate the need to protect the public, if not private owners as well, from politically correct artistic tyranny. Fortunately Federal Plaza had a happy ending and the rights of the public were restored.

The source of the moral rights problem in international copyright is the Berne Convention. Article 6 bis is quiet on whether moral rights can be waived or whether they apply in all situations, including situations where it may be customary not to apply them, e.g. must a book editor be given credit where he has made an original contribution to a book. In my opinion, stronger arguments in both law and in policy favor an interpretation that concludes that Article 6 bis, in the absence of specific limiting language, does not require creation of a non-waivable right. By analogy is it conceivable that the reproduction right under Berne 9(1) can not be waived or licensed? Article 9(1) also sets forth a right without specifying whether that right may be waived or licensed. Accordingly, national legislation that does not permit waiver of a moral right is arguably "Berne Plus" legislation and could be modified downward without infringing Berne.

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