Moral Rights: What Writers Need to Know

Today I’m writing for SFWA’s online magazine, Planetside (formerly the SFWA blog) on a subject many writers–especially in the USA–aren’t familiar with. Enshrined in most countries’ copyright laws, moral rights provide important protections that many writers don’t really think about…until they are asked to relinquish them.

What Are Moral Rights?

In addition to various economic rights, such as the ability to license and profit from the use of their original work, the Berne Convention (the international source for copyright law) affirms creators’ moral rights.

Moral rights are intended to protect authorship, primarily by ensuring that a creator’s work is published or disseminated with their name—the right of attribution—and that the work can’t be altered or modified in ways that would be deleterious or prejudicial to the author or to the work itself—the right of integrity.

Here’s the relevant language, from Article 6 of Berne:

Independently 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, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.

Though there are variations from country to country, in most of the 181 nations that are signatory to Berne, moral rights are recognized to apply to all copyright-protected works.

In the USA, however, there’s no general moral rights provision in copyright law. When the US became a Berne signatory in 1988, Congress decided that existing federal and state laws (such as creators’ right under copyright law to control derivative works, and the Lanham Act, which prevents false attribution) provided equivalent protection to Article 6. Later, the Copyright Act was amended to recognize moral rights only for works of visual art. For other copyright-protected works, the moral rights landscape in the USA is a “patchwork of protections”, to quote the Copyright Office’s 2019 report on moral rights, that is “generally working well and should not be changed.”

If you’re a US writer, does that mean you don’t need to be concerned about moral rights? Not exactly—because you may encounter circumstances where you’re required to give them up.

The Language of Moral Rights Waivers

Moral rights waivers occur almost anywhere. I’ve seen them in book contracts, short fiction and anthology contracts, audiobook contracts, contest guidelines, serialized fiction app contracts, and more. (They are also common in the Terms of Service of apps and platforms that host user comments and other contributions, such as user profiles: you may be shocked at how big this list is.)

Some examples. This one’s from a book contract:

Notwithstanding anything contained in this Agreement to the contrary, Author hereby expressly waives in favor of Publisher, its licensees, assigns or successors in title, as the case may be, all present and future moral rights in the Work accruing to Author, by virtue of statute or otherwise throughout the world for the entire term Publisher retains copyright rights to the Work. Publisher will use commercially reasonable efforts to have the name/pseudonym of Author appear on the jacket (if any), cover and/or title page of every copy of the Work.

Note how, having required the author to waive their right of attribution, the publisher promises to include their name on their work anyway—but only if it’s “commercially reasonable” to do so.

From the contract of a serialized fiction app:

Party B [the author] hereby irrevocably grants his/her moral rights of Work (including rights to object to derogatory treatment) to Party A [the app] and its Affiliates that are necessary and indispensable for exercising all the rights granted to them in this Agreement under the applicable laws.

“Derogatory” in this context doesn’t mean insults or nasty remarks, but rather what Berne defines as “distortion, mutilation or other modification” of the work that might be prejudicial to the author’ reputation. In other words, the app is emphasizing its prerogative under the waiver to change or adapt the work, including in ways the author might find objectionable or hateful.

From a magazine contract (where it’s very unusual to find a moral rights waiver):

You agree that the publisher may publish the work in the style and format of its choosing, including next to advertising Notwithstanding anything to the contrary contained in this document, you expressly waive all moral rights in favor of, and covenants to, Publisher, its Related Licensees and Unrelated Licensees, assigns or successors in title, as the case may be, to refrain from asserting any and all moral rights in the Work or any updates or revisions to the Work, accruing to you now and in the future, by virtue of statute or otherwise, howsoever arising throughout the world. However, Publisher undertakes to make its commercial best efforts to ensure that Author’s Pseudonym or Name, will appear with the story of every copy of the Work published by Publisher, its Related Licensees and Unrelated Licensees.

Moral rights waivers don’t always appear as distinct clauses: they may be just a sentence buried in a general paragraph addressing rights (and thus easily glossed over or overlooked). This is from the rules of a writing contest (see the last sentence):

Upon submission of a story to the email address set out at rule 2, an entrant grants to [Company] a perpetual non-exclusive, worldwide licence to publish the story in any of its magazines or any licensed editions thereof, or in any other format or via any other medium. All intellectual property rights in the story shall remain with the entrant save as set out in these terms and conditions. All entrants shall waive their moral rights in their story in respect of any use of the story by [Company] or any of [Company’s] licensees in accordance with the licence granted herein. 

What Does It Mean to Give Up Your Moral Rights?

In many European countries, moral rights are inalienable: they cannot be waived (which poses interesting legal questions for European authors who encounter a waiver in a contract or agreement from another country). Elsewhere, including the UK, Canada, and the USA, creators can renounce their moral rights if they choose to do so—although in the UK and Canada, unlike the USA where moral rights aren’t enshrined in law, they can enforce those rights in court if they retain them (here’s one famous example).

Generally speaking, there are two main reasons why publishers and others might want to demand a waiver: they may wish to ensure that they and their affiliates and licensees don’t have to identify the author every time the work is reprinted or adapted (especially where the contract grants multiple subsidiary rights); and they may want the ability to make changes or adaptations without having to seek permission or deal with the possibility that the author might object (for example, removing content that a particular country or market might consider controversial in order to sell the work into that country or market).

When you sign a moral rights waiver, you give whoever is demanding the waiver the right to do any and all of those things. How likely is it that they will? Maybe not very.

But I don’t think you can ever safely assume that the literal language of a contract or other rights-granting vehicle won’t apply to you at some point. In that context, the fact that moral rights aren’t really meaningful for US writers (a “don’t worry about it” response that the publisher or other group may haul out if you object to the waiver) looks a little different. After all, why would any entity include a waiver if they weren’t at least contemplating acting on it–perhaps in countries where moral rights are recognized and the “patchwork of protections” that substitute for them in the US don’t apply? (And if they aren’t contemplating acting on it, why include a waiver at all?)

To agree that something can happen is to acknowledge that it very well might happen. As distant as the possibility may be, if you sign a contract that requires you to give up your moral rights you need to consider how you feel about surrendering control of those important aspects of authorship.

The Bottom Line

Deciding whether to sign a moral rights waiver or walk away from a contract or agreement that includes one is difficult, complicated, and, ultimately, personal.

Where possible, you can choose to try and negotiate—to strike the waiver entirely, if you can, or modify it–for example, adding language retaining your right to be credited as the author, or ensuring that any reprints or translations include the entire work without making substantial changes or misrepresenting its ideas and themes.

Where negotiation isn’t feasible—contest guidelines, for example–some writers may choose to stand on principle and reject the waiver as unnecessary overreach. Others may decide to risk the potential harm for the sake of the potential benefit, especially where the entity requiring the waiver is notable, or offers clear advantage to a writing career.

The one thing you shouldn’t do is to gloss over a moral rights waiver because you’re not sure what it means, or dismiss it because you believe it’s unlikely to happen, or assume that because you’re a US-based writer it can’t affect you (and don’t let the publisher or other entity gaslight you on these points). Whatever you decide, it should be a careful and considered choice, not a hasty or careless one.