Moral Rights May Protect Photographers In Limited Circumstances

Although the United States does not generally recognize “moral rights,” in some situations “moral rights” will give photographers added protection.

Copyright includes the right to use, reproduce, display, and copy a photograph. If and when the copyright is transferred or assigned, however, a photographer cannot generally control whether he or she will receive credit for the photo, or whether the work may be changed -- unless the recipient so agrees.

The situation is different in countries, like France that recognize moral rights. Known in French as “droit moral,” moral rights give artists the perpetual and non-assignable right to be credited as the creator of the work (the “right of attribution or paternity”) and the right to prevent degradation of the work (the right of integrity). French moral rights also include the right to determine when a work will be released to the public (the “right of disclosure”) and, with certain conditions, the right to recall the work from the public (the “right of withdrawal”). In a famous example in 1995, the heirs of director John Huston prevented a French broadcast of a colorized version of “The Asphalt Jungle” because such colorization violated Huston’s right of integrity in the movie.

In 1990, Congress created limited moral rights in the U.S. when it amended the Copyright Act with the Visual Artists Rights Act (“VARA”). 17 U.S.C. Section 101 et. seq. VARA created a limited rights of attribution and integrity in “works of visual art,” existing for the life of the artist. To be eligible for protection, the artist must be of “recognized stature” or the artist’s “honor or reputation” must be prejudiced by a modification of the work. A “work of visual art” is limited to a work produced in a limited edition of 200 or fewer copies numbered and signed by the artist. Photographic stills must be “produced for exhibition purposes only, existing in a single copy that is signed by the [photographer], or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the [photographer].” “Works of visual art’ do not include works made for hire, or works that are utilitarian, promotional or advertising.

A 2003 New York case held that works created for political purposes are “promotional” and not protected by VARA. Joanne Pollara, an artist, created a large banner supporting legal services for the poor on behalf of the Gideon Coalition, a non-profit organization advocating for indigent legal services.  As part of Gideon’s lobbying efforts, it displayed the banner at an information table near the Statehouse in Albany without a proper permit. After a state employee removed and tore the banner, Pollara sued, claiming that the banner was deliberately destroyed in violation of VARA.

The United States Court of Appeals for the Second Circuit dismissed the case, ruling that the banner was “promotional” and not protected by VARA.  Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003). According to the Court, “the purpose of the [banner] was to attract public attention and publicity to the [Gideon] information table.” Therefore the banner had a promotional purpose and the artist was not protected by VARA.