Introduction
One of the most overlooked aspects of intellectual property right protection is the moral right domain. Despite the increasing pool of information and the expansion of multi-million transactions in the creative industry, it is not an uncommon practice that the value and sanctity of credit for creative works are grossly undermined, largely with little attention paid to the stance of law on the subject.
Visualize the bustling cityscape of Lagos as the hub of creativity, where a gifted screenwriter -let’s refer to her as Seke, who dedicates painstaking hours of research, meditation and writing to developing a masterpiece screenplay to be made into a blockbuster movie. A studio approaches her to purchase her screenplay and after months of production by the studio, she goes to the cinema to watch but finds that another name has been substituted for hers as the creator of the screenplay. From another view-lens, let’s say at the time of selling her script to the studio, she signs a contract where she assigns to the studio the “right to be credited as the author of the screenplay and all moral rights available under the law”.
This narrative captures the reality of the creative and entertainment industry. Questions often unanswered are, whether it is right at law, to deny an author of his credit, simply because the author or artist has sold his work, or whether the author can by his own will assign/sell his right to be credited as the author of the creative work?.
In this article, we delve to explore the significance of attribution, the right for an artist to be acknowledged as the author of their work and the extent of the restriction on the artist in the exercise of the right.
This work uses ‘artist’, ‘author’, and ‘creative’ interchangeably.
The Act of Authorship
No doubt, the name of a creative person is the heart of their identity as the maker of any artwork. The authorship of a creative work means the act of formulating, creating or originating a creative work and bringing ideas to life, whether it is writing paragraphs for a book, composing a song, or creating a sculpture – anything that can be copyrighted. The act of authorship is the harbinger of creativity in the industry, it is the process by which life is administered into the nostrils of still, unfinished ideas. It is the process of turning vague thoughts or mere abstract ideas into something concrete that people can appreciate and use for economic value.
Being the author of creative work is not just a task; it is a point of pride for every creator. Whether as an artist with a paintbrush, a writer spinning captivating stories, a sculptor shaping raw materials, a designer giving life to concepts, or a producer orchestrating creative collaborations for a film or song – that pride is there.
Authorship constitutes a special connection between the creator and their creation. It is the joy of turning imagination into reality. Imagine an artist looking at a finished canvas, a writer at the end of a manuscript, or a sculptor admiring a masterpiece.
From the legal perspective, the significance of authorship has earned it recognition and a unique protection of rights under the law. Authorship implies that one will receive credit and is responsible for a published or presented work. Therefore, authorship credit may encompass not only those who do the actual writing but also anyone who has made a substantial intellectual contribution to the work, and sometimes the immediate creator of a work may not be the author of the work. The Nigerian Copyright Act, 2022 recognizes six categories of works that are copyrightable and defines who may be referred to as the author of a certain set of created works.
The essence of authoring a creative work is to contribute economic value. Hence, the Copyright Act broadly recognizes and protects two categories of rights of an author which are: economic rights and moral rights. Moral right is a unique set of rights that emanates from the need to protect the pride and integrity of the author on the work, even after they might have transferred or lost their economic rights to the work created.
Moral Rights and Creative Credit
Copyright has two facets: i. Economic rights which represent the property rights aspect of copyright and are objects of commerce and which terminate after a period fixed by law; and ii. The moral right which is inalienably attached to the author’s personality. The moral right belongs solely to the author and cannot be denied.
Article 6bis of the Berne Convention for the Protection of Literary and Artistic Work 1886 (as amended) which serve as the historical source of moral right distinguishes economic rights from moral rights thus:
“Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation.”
One major difference between economic and moral rights is the alienability of the rights. Whilst the economic rights are easily transmissible by assignment, testamentary disposition or by operation of law, moral rights may not.
Three key component rights constitute the foundational pillars of moral right:
a. the right of “attribution”
b. the right of “integrity.” and
c. right against false attribution
These three principles work hand in hand to create a moral rights framework. The right of attribution ensures authors get the credit they are due, while the right of integrity acts as a guardian, making sure creative works aren’t changed or altered in ways that could harm their original form or message.
The statement of Melvin Gibbs, a music composer at the United States Copyright Office Symposium in the year 2016, accurately captures the personal and economic importance of moral rights to authors. He stated thus:
“For us, attribution—that is our currency. I don’t exist if people don’t know who I am. I mean that in the most literal sense of “I don’t eat.” You know, so every time something goes out that I’ve participated in that I don’t get attribution for, it affects my family. And how that affects the community is that the less I am able to create, the less I am able to help other people create. And the less the community of—it shrinks the art—community of artists, which will eventually shrink the creativity of this country as a whole.”
Section 14 of the Copyright Act is instructive on the protection of moral rights in Nigeria. Hence, the provision of the Section is reproduced thus:
“14. Author’s moral rights.
(1) Subject to Part II of this Act, the author of a work in which copyright subsists has the right to – (a) claim authorship of his work, in particular that his authorship be indicated in connection with any of the acts referred to in sections 9, 10 and11 of this Act, except when the work is incidentally or accidentally included in a broadcast when reporting current events; and
(b) object and to seek relief in connection with any distortion, mutilation or other modification of, and any other derogatory action in relation to his work, where such action would be or is prejudicial to his honour or reputation.
(2) A person has the right to object to a work being falsely attributed to him as the author.
(3) The rights referred to in subsection (1) of this section shall –
(a) not be transmissible during the life of the author; and
(b) upon the death of the author, be transmissible by testamentary disposition or by operation of law.
(4) The rights conferred by this section shall subsist for the duration of the copyright in the work”
The Right of Attribution
Imagine an artist who puts all their passion and creativity into a painting, novel, or song, only to see it presented to the public anonymously or credited to someone else. The emotional impact of not receiving the proper recognition for their creation would be devastating, regardless of whether the artist has already received financial compensation for the sale of their work. Similarly, consider if you purchased an original painting by Da Vinci, only to discover that you had the right to change the name of the creator to your own. These examples demonstrate the potential harm caused by ignoring the right of attribution, which is a crucial aspect of ensuring that artists are appropriately acknowledged for their creative achievements.
This is where the right of attribution steps in. It guarantees an author’s right to be identified as the creator of their work, ensuring their voice is heard and their contribution acknowledged.
The right of attribution is clearly indicated in Section 14(1)(a) of the Copyright Act as aforementioned.
However, the right of attribution doesn’t always hold absolute sway. In certain circumstances, authors may choose to publish anonymously or pseudonymously. This might be for personal reasons, such as protecting their privacy, or artistic intentions, such as creating a sense of audience engagement. Yet, even in such cases, the underlying right of attribution remains, as the author retains the power to reveal their identity at any time.
The Right of Integrity
Imagine your beloved novel being butchered with unauthorized edits, or your painting defaced with jarring additions. The right of integrity guards against such violations. It empowers authors to prevent any distortion, mutilation, or other modification of their work that could damage their reputation or misrepresent their creative intent.
The author of a copyrighted work has the right to object and seek relief in connection with any distortion, mutilation, or other modification of, and any other derogatory action in relation to his work, where such action would be or is prejudicial to his honour or reputation.
For instance, consider Mark, a screenwriter known for his heartfelt and family-friendly scripts, discovers that a major film studio to whom he had sold his script, has taken one of his original screenplays, which was intended to be a heartwarming family drama, and made significant changes without consulting him. In the modified version, the studio has altered the storyline to include explicit and inappropriate scenes involving sensitive subjects such as explicit content, crime, or other themes that are completely contrary to Mark’s original vision. This unauthorized shift violates Mark’s creative integrity and also puts his name in association with content that could be detrimental to his professional reputation.
The studio, without considering the potential impact on Mark’s honour, proceeds to produce the film based on these unauthorized and inappropriate changes. This situation not only compromises the integrity of Mark’s work but also poses a serious threat to his reputation as a screenwriter with a particular focus on family-friendly content.
In this scenario, Mark enjoys the moral right to object and seek relief against the Studio, regardless of whether he had received monetary compensation for the script. However, this may not be so, if it is determined that by an existing contract between the studio and Mark, Mark originally made the script as a work-for-hire or had assigned the authorship of the work to the Studio, in which case he would enjoy no right to be credited as the author of the script.
Together, these two pillars – attribution and integrity – form the bedrock of moral rights. They stand in defense of the creator’s personal connection to their work, ensuring that their name is rightfully linked to their creation and their vision remains untarnished.
There is more, under the Nigeria Copyright Act, these rights are inalienable, that is, they are not assignable or capable of being transferred to another person during the life of the author. The implication of this is further examined.
Implication of Inalienability of Moral Rights
The implication of the above provision of the law on the moral rights of an author is that the law strongly upholds the sanctity of attributing creative credit to every creator. The right to receive credit for the creation of any copyrightable work is a sacred right of which the author cannot be denied, irrespective of whether or not the economic rights have been exercised. Hence, Seke deserves to be credited as the author of the screenplay sold to the studio, except in circumstances to be hereafter discussed.
Secondly, the moral rights of authors are not transmissible or assignable during the life of the author. Therefore, a creator who is the author of a particular work cannot during his lifetime, by will or wit transfer his right to be credited or attributed as the author of the work to another person. Hence, this questions the validity of contracts that contain clauses portending to transfer the moral rights of the original author to the assignee of the economic rights. For instance, when Seke approached the studio to sell her blockbuster script, the studio presents her a contract wherein she assigns all her intellectual property rights and “moral rights” in the script to the studio.
To capture the intent of the draftsman in this respect, one must restate the provision of Section 14(3) which states that:
“(3) The rights referred to in subsection (1) of this section shall –
(a) not be transmissible during the life of the author; and
(b) upon the death of the author, be transmissible by testamentary disposition or by operation of law.”
The Act does not itself define the word “transmissible”, and for this purpose, dictionary meaning may not adequately reveal the contextual usage of the word by the Act. Hence, reference again is made to the use of the word “transmissible” by the Copyright Act. Section 11 of the Old Copyright Act provides that copyright shall be a moveable property, transmissible by assignment, testamentary disposition or by operations of law. This provision is in pari material, with Section 30 of the new Copyright Act, 2022, but which rather substitutes ‘transmissible’ with ‘transferable’. Hence, Section 30 of the new Act provides that copyright shall be moveable property transferable by way of assignment, testamentary disposition or operation of law.
Without an intention to occasion ambiguity, the usage of the word “transmissible” in section 14(3) of the Act would also mean that moral rights are not transmissible or cannot be transferred by Assignment, testamentary disposition or by operation of law, during the lifetime of the author. Consequently, any act of assigning the moral right by the author to another person would be considered invalid. This position is however problematic because, only the author can have a cause of action in case such author had willfully assigned his moral right. It therefore means, that this provision of inalienability or non-transmibility of moral rights is rendered redundant where the author himself is not aggrieved. Even where the author is aggrieved, the principles of equity will estop an author who willfully assigns his moral right to another person from turning back to claim against the assignee.
This, therefore, forms an exception to the rule of inalienability of moral rights. Although the law states that moral rights are not transmissible during the lifetime of the author, the right can be waived by the author. According to Bankole Sodipo: “Notwithstanding the inalienable nature of moral rights under Nigerian law, it follows that where the owner of a moral right being aware of his right signs an agreement or does an unequivocal act affirming that he will not enforce his right, he will be estopped from enforcing his moral right”. Goldstein opined that “a concept of absolute inalienability and of exclusion of waiver is not compatible with the laws of even the most fundamental moral rights countries”.
Hence, while moral rights are often described as “inalienable,” “nonwaivable,” or in other terms that express the inherent relationship between author and work, moral rights are in fact often waivable and sometimes also alienable under many countries’ moral rights schemes.
We will discuss the various ways by which an author can assign, alienate or sell his moral rights validly herein later.
Under, the new Copyright Act 2022, the law no longer regards moral rights as absolutely inalienable. In fact, part of the innovations of the new Act against the old copyright Act is the introduction of duration for moral rights, unlike the old Copyright Act.
Previously, under Section 12(2) of the old Copyright Act, the Act provided that moral rights are perpetual, inalienable and imprescriptible. By implication, moral rights under the old Act will last forever even after the death of the author, once he transfers same to his heirs or successors.
However, the new Copyright Act 2022, in Section 14(4) alters this position and limits the duration of moral rights. Hence, moral rights conferred by law on an author only subsist for the period or duration of copyright in the work. For instance, Seke’s script falls under literary work, and by virtue of Section 19(1)(a) of the Act, copyright duration in a literary work is 70 years after the end of the year in which the author dies. It therefore means that Seke’s moral right as the author of the script will last until 70 years after the year of Seke’s death. While she is alive, the law prevents her from transferring her moral right but may transfer it to another person by her Will. The beneficiary of that moral right in the Will enjoys the right to be attributed or to enforce the moral right for 70 years after the death of Seke.
The new Act has therefore ended the perpetuity of ownership of moral rights by the author. The implication of letting out moral rights into the public domain cannot yet be appraised and is thus, deferred for another study.
How to Alienate Moral Right (Exception to the General Rule)
The rule says authors can’t give up their moral rights while they’re alive, according to Nigeria’s Copyright Act, which is like a safety net for the good name and credit of creative works.
However, there are special situations and mechanisms with which authors can validly let go of these rights:
1. Work for Hire Concept
One significant exception to the general rule of the inalienability of moral rights is the concept of “work for hire.” While the explicit term may not be embedded in the Nigerian Copyright Act, the underlying principle has found its way into Nigerian entertainment law practice. In essence, when a creative work is explicitly commissioned or created under a contractual arrangement where it is considered a “work for hire,” the authorship and moral rights may be transferred from the creator to the commissioning party from the outset.
In the context of the creative industry, especially in scenarios where individuals or entities commission works for specific purposes, contractual agreements can explicitly stipulate that the created work is considered a “work for hire.” By doing so, the author relinquishes their moral rights, allowing the commissioning party to have full control over not only the economic rights but also the authorship and associated moral rights. By this contractual arrangement, the employer, commissioner or client is considered the legal author from the outset, and moral rights are typically transferred along with economic rights. This is a situation where the actual author may not be the “legal author”. Thus, according to the scenario, the Studio will be the author of the script created by Seke and Seke cannot ask to be credited as the author.
This practice aligns a lot more with the U.S. Copyright law, which recognizes the concept of “work for hire.”
2. Contractual Waiver
Another method by which moral rights can be alienated is through contractual waiver. This involves the voluntary and explicit agreement of the author to waive or renounce their moral rights in connection with a particular work. While the general principle is that moral rights are not transferable during the author’s lifetime, an author can willingly and unequivocally agree to forgo these rights.
This contractual waiver is a negotiated agreement between the author and another party, often outlined in a specific clause within a broader contract. Authors may choose to waive their moral rights for various reasons, including considerations of creative freedom, collaboration, or commercial viability. However, it’s crucial that such waivers are clear, informed, and entered into voluntarily by the author. The legal enforceability of a waiver depends on the specific terms outlined in the contract.
3. Fair Use
Fair use is a legal doctrine that allows the use of copyrighted material without permission from or payment to the copyright owner under certain circumstances. In some instances, the use of a work that may be considered a violation of an author’s moral rights could be justified under fair use.
In the context of moral rights, fair use can be considered an exception when the use of a copyrighted work is deemed fair, reasonable, and falls within the bounds provided in Part II of the Nigerian Copyright Act, 2022. In some of the circumstances of fair use, an author may not receive credit for his works, except in those situations where the law specifically requires that the author be credited.
Conclusion
In the world of creativity, each creator’s identity is woven into their work. Our exploration of moral rights reveals their role as guardians of this creative identity. Authors deserve credit, and moral rights protect against unwanted changes. The fundamentality of moral right is embedded in its inalienability, as most creators do not even know that the prohibits them from transferring their creative credit while they are alive.
Understanding the exceptions to the general rule of inalienability of moral rights is essential for creators, legal practitioners, and stakeholders in the creative industry. While the law emphasizes the protection of moral rights, it also recognizes the importance of contractual agreements and limited exceptions under certain circumstances.