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Moral Rights, Copyrights, & Why You Should Care

Moral Rights, Copyrights, & Why You Should Care

There are multiple ways to protect your image as an artist:

1. Leverage The Three D’s: Derivation, Dilution, and Defamation

2. VARA: the Visual Artists Rights Act

3. A Fourth D: Design Patents

Also, One Last Note: Beware of Fair Use

Moral Rights, Copyrights, & Why You Should Care

8 min read time

Arguably more than any other human creation, works of art bear the imprint of the creator’s soul. From doodles in the margins of handouts to epic novels, artistic creation is an articulation of the most innate elements of humanity.

So, when it comes to protecting that art (by which I mean any visual or audio creation recorded in tangible media, such as paintings, photographs, sculptures, books, music, and so forth), there is something more to be protected than just the financial and temporal investments made in creating the work. Rather, protecting works of art is about protecting that portion of the creator’s soul that has been invested in the work.

These non-pecuniary interests in artistic creations may be referred to as Moral Rights. “Moral,” because they represent something that transcends mere transaction. “Rights,” because they are perceived to exist as entitlements demanded by the human condition.

A fundamental legal principle taught to every first year law student is that property rights are like a bundle of sticks; the loss of one right does not necessarily mean the other rights are gone too. The law allows for creators to sell physical copies of their works without also having to give up control over that piece of the creator’s image associated with their works.

If you’ve created something copyrightable, you likely own more than just the physical copies of that work; you may also have control over whether and how people connect that work to you, or even how the work is altered by the people to whom you sell the copies.

Below, I’ve outlined three ways you can protect your image as an artist, musician, writer, or even business when you sell copies of your works.

1) The Three D's: Derivation, Dilution, and Defamation

As it turns out, there is an array of statutory and common law protections for a person’s public image or a business’s brand. These areas of law include not only copyright, but also trademark law and civil law.

1st D: Derivation

When an original creation is modified somehow by a person other than the original creator, the result is referred to as a derivative work.

A derivative work is generally one where the original work is somehow still perceptible in the modified version, such that a person familiar with the original work would recognize it had been modified. Under US Copyright Law, a person or entity that creates an original work that is fixed in a tangible medium (e.g., written down, recorded, and so forth) may have some control over how and whether derivatives of their original work may be made.

In practice, this right may allow creators to prevent others from modifying copies of their original work, even after the copies have been sold. If you identify someone who has created a derivative one of your works, whether that be a blog post or a 20-foot mural, you may be able to require those derivative works be destroyed, that you receive attribution for the derivatives, and/or that you receive royalties from the person or business who created the derivatives.

2nd D: Dilution

Dilution is a principle of Trademark Law. The Lanham Act, which lays out the trademark laws in the US, provides certain rights to control the use of your brand or trademark(s).

Generally, dilution applies to famous brands and marks; those that are so well-known that, even if the brand or mark was used with an unrelated product or service, people would still associate it with the brand or trademark owner. For example, even though “Kellogg’s” is a world-renown cereal brand, if someone else used that mark to sell, say, fingernail polish, the company could argue that use diminishes the value of their brand.

Unfortunately, for most people and businesses, the legal standard for dilution is much higher. Essentially, you would have to prove that the unauthorized use of your trademark or trade dress is likely to cause confusion about the provider and/or creator of the products on which your trademark or trade dress is used without permission. If you make toy water guns that you only sell at a local toy store, and another business uses similar packaging design for, let’s say, clothing sold by an online retail store, you probably won’t be able to successfully argue dilution.

Keep in mind: any remedy under trademark law only applies to trademarks and trade dress that is associated with particular goods or services. If you’re a social media influencer and someone uses your tagline without your permission, unless you can show that tagline is associated with a particular service you offer (e.g., advertising services), you may have some difficulty in asserting a claim of dilution. There may be other remedies, but trademark law may not be your best option.

3rd D: Defamation

Defamation is a civil and, in some cases, criminal statutory matter under state law in the US, although there is also some federal law that applies to defamation in rare circumstances. Generally, anti-defamation statutes allow you to hold someone liable (e.g., make them pay you money or some other remedy) when they say something about you that they know is untrue and is so inflammatory that the statement causes significant damage to your reputation and/or public image.

What defamation doesn’t cover: when someone has an opinion about you or your artistic creations that you just don’t like, even if that opinion is stated using highly inflammatory, or even offensive, language.

2) VARA: the Visual Artists Rights Act.

The VARA is a US federal statutory provision that protects the image of artists that create visual artwork (e.g., paintings, sculptures, photographs, but not things like music recordings or novels). The VARA allows such artists to control how their name is used and to prevent modification of their artwork, regardless of who owns the physical copy, when such modification would tarnish the reputation of the artist or the artwork itself. The protection for specific artwork only applies, however, to artwork of “recognized stature,” i.e., particular prominence in the art world or society in general.

There are a lot of caveats to this law, though. For example, it only applies to living artists. The artist can only prevent modification to their artwork when such modification would harm their public image. The rights established in the VARA cannot be transferred to someone else, though an agent, such as an attorney, can be used to enforce these rights. And several other caveats.

3) A 4th & Less Direct D: Design Patents

This option is a less direct route for protecting your image. If you create a product, like a toy or a website, you may be able to patent the design of your product. Design patents allow you to prevent others from either directly copying your design or creating a “substantially similar” design. To understand what counts as “substantially similar,” you’ll want to consult with an attorney.

Design patents offer broad or narrow protection depending on your industry. If you’re in an industry where a wide variety of design options are acceptable and no one design preference tends to dominate, a design patent will offer narrow protection. However, if you’re in an industry where specific designs dominate, such as the fashion industry, design patents can give you a stronghold in the market.

Keep in mind: when making a claim that someone has infringed your design patent, you can’t argue that they violated it by damaging your reputation or the reputation of your product. That’s why this is considered an indirect way of protecting your image. Instead, you’ll have to argue that the other party copied your design or created a different design that is, nonetheless, substantially similar to your patented design.

Additionally, keep in mind that obtaining design patent protection requires some foresight. If your design has been available to the public for more than a year, you won’t be able to get a design patent. So, when you’re creating a new design, consider whether it may be tempting to others to copy your design before releasing it to the public.

Additional Note: Beware of Fair Use

Ah, the pesky exceptions. Unfortunately, when it comes to protecting your image and reputation as a creator, there are a broad range of things you just won’t be able to prevent. In general, you can’t prevent someone from using your original works for things like criticism, parody, and education. There are a number of factors here, so if you think someone has used your intellectual property without your permission, talk to an attorney before crying “you’ve violated my rights!” While fair use is a pretty broad exception, it does not apply to patents, including design patents.

Tl;dr: If you think your image as a creator has been damaged, you have a variety of potential remedies. Consider whether an unauthorized derivative work has been made of your original work, whether someone is diluting your trademark or trade dress, or whether the damage amounts to defamation. If you’re an artist, you may have some additional rights under the VARA. Additionally, you may be able to indirectly protect your image by obtaining a design patent. But, make sure you do this before going public with your design, or at least within a year after public release.


Moral Rights, Copyrights, & Why You Should Care

Moral Rights, Copyrights, & Why You Should Care

There are multiple ways to protect your image as an artist:

1. Leverage The Three D’s: Derivation, Dilution, and Defamation

2. VARA: the Visual Artists Rights Act

3. A Fourth D: Design Patents

Also, One Last Note: Beware of Fair Use

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