NOW WHAT’S UP, TIGER LILY? THE STORY OF THE MORAL

     Woody Allen broke onto the scene in 1966 with a film called What’s Up, Tiger Lily? He purchased a Japanese film called International Secret Police: Key of Keys. He deleted the soundtrack, and substituted in an entirely new story that had nothing to do with the original motion picture. As Allen explained, “I took out all the soundtrack. I knocked out all the voices, and I wrote a comedy….We put our comedy in where they were formally raping and looting. And the result is a movie where people are running around killing one another, and you know, doing all those James Bondian things, but what’s coming out of their mouth is something wholly other.” http://www.youtube.com/watch?v=3QgABL5DvQA 

     If Allen wanted to produce and distribute What’s Up, Tiger Lily? today, what rights would he need to secure? Allen bought the Japanese film outright. So he controlled the copyright. But another set of creator’s rights transcend and dwell on beyond the copyright. These rights are known as “moral rights”. Moral rights protect the creator’s reputation. They include the rights of integrity and attribution. The right of integrity prevents the mutilation of a work that would besmirch the creator’s reputation. The right of attribution allows the creator to put the creator’s name on a work, or remove it from a work (think Sydney “Paddy” Chayefsky and Altered States). These rights are inalienable, and even survive the creator’s demise. Maybe. Sort of. Well….

     Moral rights are protected under Article 6^bis of the Berne Convention. The US is a signatory to the Berne Convention. However, under US law, Article 6^bis doesn’t actually convey or secure any rights. Section 104(c) of the Copyright Act (17 USC Sec. 104(c)) provides:

               (c) Effect of Berne Convention. - No right or interest in a work

eligible for protection under this title may be claimed by virtue of, or in reliance upon,

the provisions of the Berne Convention, or the adherence of the United States thereto.

Any rights in a work eligible for protection under this title that derive from this title, 

other Federal or State statutes, or the common law, shall not be expanded or reduced by

 virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of

 the United States thereto.

The creator of a visual work of art, however, has “moral rights” under Section 106A including 

attribution and the right to “prevent any intentional distortion, mutilation, or other modification

 of that work which would be prejudicial to his or her honor or reputation…”. Unfortunately, 

under US law, writers are not granted similar protections. If an author is concerned about moral

 rights protection in the US, the publishing contract needs to address the issue specifically.  

     An author’s moral rights are recognized, inter alia, in Great Britain, Canada and France. Moral rights are included as Chapter IV of the Copyright, Designs and Patent Act of 1988 in Great Britain (sections 77 et seq.). Although there is no specific required language necessary to assert a creator’s rights under the Act, generally a reference is made in a work to asserting rights in accordance with “Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988”. In Canada, moral rights are protected under Section 14 of the Copyright Act (R.S.C., 1985, c. C-42) (moral rights can even be bequeathed. Section 14.2.2(a).)

     Returning to the question on the floor, if Allen wanted to produce the same movie today, he would probably need to secure “moral rights” in addition to the copyright. Although he used the visual images of the original Japanese film, by inserting “comedy” in place of “raping and looting”, he distorted and/or mutilated and/or modified the work in such a way as to potentially prejudice the original creator’s reputation.

     Remember the erotic novel from my Paypal rant a couple of weeks ago, Sarai’s Baby (that I still haven’t written yet)? Let’s assume that Sarai’s Baby is under a publishing contract with ZYX WoRldWiDe Publishing Co ™. Under the terms of the contract, I retain the copyright. ZYX has editorial rights. The contract is silent as to moral rights.  

     I spent hours describing in graphic detail all of the nasty things that Abe did to Sarai’s maid. ZYX, however, took out all of the sex, and published Sarai’s Baby as a YA title. ZYX listed Sarai’s Baby for sale on Amazon, Amazon.co.uk, and Amazon.fr. In the US, I may have a claim for breach of contract. However, in the UK, France and Canada, I may have a cause of action for breach of my moral rights protecting my reputation.

CK Copyright 4/15/12; Moral rights to be identified as the author of the foregoing article asserted worldwide (including in Great Britain in accordance with Sections 77 and 78 of the Copyright, Designs and Patent Act of 1988).