Post Mortem Moral Rights Needed in the US?

The WSJ has an article about posthumous novels. New books by Vladimir Nabokov, William Styron, Graham Greene, Carl Jung and Kurt Vonnegut will be sold this fall.

Two Michael Crichton novels will be published in 2010. Mr. Crichton had finished one before he died in 2008, but he had only written “about one third” of another novel, according to the NY Times (assuming that it was measured by comparing the length of the other Crichton novels). One of these novels was discovered by Mr. Crichton’s assistant, on the writer’s computer. But did Mr. Crichton intend to distribute this work as is to the public? Who has the right to decide? Should this novel be published?

Does the law give us an answer? According to § 106 (3) of the Copyright Act, the owner of copyright has the exclusive rights to distribute copies… of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

§ 106A gives only to authors of works of visual art rights to attribution and integrity (so Nabokov has no droit moral under US law:

(a) Rights of Attribution and Integrity. — Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art

(1) shall have the right (A) to claim authorship of that work, and (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.

Vladimir Nabokov had instructed his family to burn his final novel, "The Original of Laura" after his death. The WSJ article explains that Mr. Nabokov “had sketched out the novel on 138 index cards, a process he used to write "Lolita" and other works. Nobody, not even Mr. Nabokov's son and literary executor, Dmitri Nabokov, knows the exact order the author intended for the cards.” Yet, this novel will be published soon, after Dmitri Nabokov finally decided to authorize it. Could it be considered “prejudicial to his honor or reputation"? In France, the droit moral of the author is perpetual, and survives the author.

In the U.S., the Second Circuit had seemed in 1976 to grant a moral right to a writer. In Gilliam v. American Broadcasting Co., the appellant had claimed that ABC had mutilated their original work and consequently had violated the Lanham Act § 43(a), and that ABC misrepresentation had injured the plaintiff's business or personal reputation.

The Second Circuit followed this argument and held that when “a television network broadcasts a program properly designated as having been written and performed by a group, but which has been edited, without the writer's consent, into a form that departs substantially from”, "to deform his work is to present him to the public as the creator of a work not his own, and thus makes him subject to criticism for work he has not done." “In such a case, it is the writer or performer, rather than the network, who suffers the consequences of the mutilation, for the public will have only the final product by which to evaluate the work.”Thus, an allegation that a defendant has presented to the public a "garbled," distorted version of plaintiff's work seeks to redress the very rights sought to be protected by the Lanham Act, 15 U.S.C. § 1125(a), and should be recognized as stating a cause of action under that statute.”

The Second Circuit explained that "American copyright law, as presently written, does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors. Nevertheless, the economic incentive for artistic and intellectual creation that serves as the foundation for American copyright law (…) cannot be reconciled with the inability of artists to obtain relief for mutilation or misrepresentation of their work to the public on which the artists are financially dependent. Thus courts have long granted relief for misrepresentation of an artist's work by relying on theories outside the statutory law of copyright, such as contract law, (…)or the tort of unfair competition (…) Although such decisions are clothed in terms of proprietary right in one's creation, they also properly vindicate the author's personal right to prevent the presentation of his work to the public in a distorted form."

Is presenting an unfinished novel to the public a misrepresentation? What about having another writer finish the novel of a deceased author?

Should the U.S. grant perpetual moral rights to all authors? Or would it be prejudicial to creativity? Great article by Amy M. Adler arguing against moral rights available on SSRN here.