If your business engages a contractor who creates intellectual property, your contractor may have moral rights attached to their work. Moral rights are rights that protect the intellectual property of creators. For example, an artist’s name should always appear next to their artwork in an exhibition. As a business, it is important that you do not infringe upon your contractor’s moral rights. Moral rights clauses in your contractors agreement can serve to protect your business from infringement claims. This article explores a moral rights clause in contractor agreements and how to avoid infringement claims.
What Are Moral Rights?
Moral rights protect the reputation of creators and the integrity of their work. Moral rights exist in relation to most works such as dramatic, artistic, musical and literary works and film but not in relation to sound recordings. Performers can sometimes have moral rights in relation to live or recorded performances. This article covers moral rights of creators and authors but not the limited rights of performers.
Moral rights are different from the economic rights relating to copyright. A creator may sell the copyright to a work but will still own the moral rights to the work. For example, an art gallery cannot show an artist’s work in a way that would alter its meaning.
This protection extends even after copyright is sold or transferred. Under the Copyright Amendment (Moral Rights) Act, moral rights are the right to:
- have their name attributed to their work;
- not have their work be falsely attributed; and
- have their work respected and not subjected to derogatory treatment.
What is a Moral Rights Clause?
Moral rights clauses are often part of intellectual property clauses in a contractors agreement. The clause can require the contractor to allow their work to be used in a way that may infringe on their moral rights.
By including a consent from the contractor to an infringement of its moral rights, you may infringe the moral rights of a contractor in a way that you could not if you did not have the consent. Moral rights infringement can occur through:
- false or improper attribution;
- reproduction of work that lacks proper attribution; and
- treating the work in a derogatory way. This includes significant distortion, mutilation, or alteration of the work that could damage the author’s honour or reputation.
Examples of Moral Rights Clauses
Consent Clauses
It is common for a moral right clause to require the contractor to consent to the use of their work or materials without proper attribution. This clause can also apply to third parties. It is the contractor’s responsibility to ensure that third parties have consented to using their work in this way. As a result, if the business infringes on the third party’s moral rights, the contractor may need to pay compensation. This can be useful because you may not want to always state who authored or created a piece of work when using it for your own business.
Indemnity Clauses
It is also common for the contractor to provide indemnity for breaches of third-party rights. This means that if the contractor’s work breaches any third party’s moral rights, you cannot be sued for breaching those rights by using the work. By providing you with indemnity, the contractor will be legally responsible instead. Essentially, this indemnity protects you from any infringement of the moral rights of third parties.
Survival Clauses
Moral rights clauses often contain a survival clause.
It follows that even after the agreement ends or terminates, the specified clause or clauses will continue to bind the relevant parties. As moral rights last the life of the creator plus 70 years, the clauses surviving termination could bind the parties for this entire duration.
Without a Consent Clause
If your contractors agreement does not contain a consent to the waiver of infringement of moral rights, you may infringe those rights. Consequently, a court may order:
- a declaration of infringement;
- an apology to the creator;
- damages to the creator for the harm suffered;
- an injunction to stop you from infringing the moral rights; or
- a correction from you in relation to false attribution.
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Key Takeaways
It is important when using the intellectual property of a contractor that you do not infringe on their moral rights. As a business, you can protect yourself from infringing moral rights by using a moral rights clause. Moral rights clauses often require the contractor and third parties to allow their work to be used in ways that may breach their moral rights. In addition, contractors may provide an indemnity against breaches of moral rights. This protects you from infringing the moral rights of your contractor. Survival clauses can bind parties even after the agreement ends.
If you have any questions about moral rights clauses or your contractors agreement, our experienced contract lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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