Toward an American Moral Rightsin Copyright

Introduction Indiana University's newly adopted code of conduct for all participants in its athletic programs includes the requirement that all players, coaches, faculty, and staff "treat one another and all other people with dignity and respect. "1 Widely seen as a response to the actions of its former basketball coach,2 the university's new policy became the latest example of an institutional recognition and demand for personal dignity. The university's action follows the course of private organizations,3 various states,4 Congress,5 executive agencies,6 individual nation states,7 and the collective member nations of the United Nations8 that refer formally to some sense of individual dignity in their governing pronouncements.9 Interestingly, none of the propounded materials with explicit references to "dignity" offer any guidance as to what the term means, and only the Indiana code of conduct provides for sanctions in response to actions that violate the requirement of treatment with dignity.10 Yet despite the lack of a consensus on the meaning of the term, and the view expressed by some that the term is so amorphous that it escapes a precise definition,11 dignity offers simplicity, a presumed understanding, and universal appeal.12 Although American courts have yet to announce a judicial recognition of a dignity right,13 the many references to individual dignity in both state and federal law,14 as well as the demand for it by private groups, suggest a nascent dignity movement afoot in American law and policy. Dignity may also have a part in American copyright and the law governing the works of authors," an idea that has been alluded to cursorily by commentators,16 and the elaboration of which this Article provides explicitly. Traditionally, the focus of American copyright law has been on the distribution and allocation of the pecuniary or property rights that flow from a created work.17 Such a scheme would likely have little room for consideration of the individual dignity of the creator. In more recent years, American law has moved away from a solely proprietary approach to copyright and toward a system that provides for some recognition of an author's personal rights in her creations, even after the full panoply of proprietary interests transfers into another's hands. This latter approach leaves open the possibility that the author's dignity can and should be considered and respected. In 1990, Congress enacted the Visual Artists Rights Act (VARA), which provides certain artists the rights of attribution (the right to have the artist's name attributed to her work) and the right of integrity (the right to protection from certain mutilation, deformation, or distortion of the work). 18 Though far removed from the comprehensive protections given to authors in civil law jurisdictions,19 the federal statute, along with similar state statutes and selected case law, places the United States in the ranks of those jurisdictions that recognize, at least to some limited degree, the author's moral rights. This branch of copyright law has been much discussed20 and continues to be controversial. Advocates of moral rights point to the very limited number of authors entitled to protection under VARA and the sporadic case law that applies to situations not covered by the statute, and complain that moral rights protections under American law are inadequate. Notably, what emerges from the commentary, from both those who advocate more elaborate moral rights and those who are skeptical that such rights could co-exist with already established law and practice, is the need for a construct, a rationale or a basis, for a moral rights system that is more adaptable to the established American socio-legal culture and copyright history.21 It is precisely this situation in which the moral rights system based on the dignity of the author could help to fill a void. Simply, this Article invites consideration of authorial dignity as a basis for the development of an American moral rights doctrine. …