Recognizing the Derivative Works Right as a Moral Right: A Case Comparison and Proposal

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This Article will demonstrate that copyright owners alleging infringement of the derivative works right and courts enforcing that right are often seeking to vindicate something other than an economic right—a moral right.17 Moral rights, in this context, refers to the nonpecuniary interests recognized by many countries to be held by authors of creative works, specifically, the rights of attribution, disclosure, integrity, and withdrawal. These rights are seen as protecting an author’s personality interests in his creation. As such, it is difficult to see how such rights are related to the utilitarian mandate embodied in the Constitution. Therefore, moral rights ought to be distinguished from the pecuniary rights at the heart of copyright. There is an argument, of course, that such rights are not worthy of protection in the first instance. But since courts enforce such rights in the guise of enforcing the derivative works right, this Article will presume that such rights are worthy of protection while arguing that in the absence of Constitutional justification and given the personal nature of moral rights, they should receive more limited protection.

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