Written by Julia Mas-Guindal
Edited by Heather Whitney
The doctrine of moral rights in copyright law has been a source of strain in domestic and comparative legal scholarship for decades. This strain is greater in the U.S. than in countries employing a continental legal system, where moral rights are widely recognized. This is because U.S. law and European law are built on different foundations: while for the U.S. Copyright Act the encouragement of economic investments is the top priority, continental countries prioritize protecting the artistic work and the creators. This fact has made it difficult for U.S. law to adequately account for moral rights, as I will argue in this comment. This issue is particularly acute in the realm of film. While the U.S. has made progress in establishing moral rights for paintings, drawings, sculptures and certain photographic images through the Visual Artist Rights Act of 1990 (“VARA”), the U.S. system continues to exclude filmmakers.
In this comment, I will review what moral rights are and compare the moral rights landscapes of the U.S. to those of continental countries. This will shed light on why filmmakers’ moral rights have been excluded and how exclusion is not inevitable, as other countries with bustling film industries, like India, have moral rights for filmmakers.
Finally, I will address the arguments made by the likes of producers and studios for why directors should not have moral rights. In the end, I argue for a way to meet the needs of producers and studios while also making room in U.S. law for recognition of moral rights in the filmmaking field.