A Right to be Recognised?

It is well established that UK copyright law protects the financial interests of an author, but it is perhaps less well known that there are also rights to protect the personality and reputation of the author of a copyrighted work. These so-called “moral rights” are designed to recognise that the authors of copyrighted works are likely to have invested a lot of intellectual and emotional energy into producing their work, and to protect these non-economic interests. Moral rights have their origins in common law, but were categorised into four distinct rights by the Copyright, Designs and Patents Act 1988.

The four types of moral right are:

• The right to attribution – the right to be recognised as the author of a work (this must be asserted by the author; for example, an author stating to publishers that he would like to be publicly recognised as the author of his book, prior to publication of the book).
• The right to object to derogatory treatment of a work – the right to object to any addition, deletion, alteration to or adaption of a work amounting to a distortion or mutilation of the work, or which is otherwise prejudicial to the author’s honour or reputation.
• The right to object to false attribution – the right not to be named as the author of a work you did not create.
• The right to privacy of certain photographs and films – the right to prevent a photograph or film which has been commissioned for private and domestic purposes from being exhibited or made available to the public.

In a recent case, The Front Door (UK) Ltd (t/a Richard Reid Associates) v The Lower Mill Estate Ltd, a firm of architects, The Front Door (UK) Ltd (Front Door), sought to add a claim for moral right infringement in relation to some design sketches produced by Mr Reid. Mr Reid had produced these sketches while working for WFA Associates Ltd (WFA), who had then assigned (or transferred) their rights to Front Door. Front Door’s argument was that they had a moral right to be identified as the author of the design sketches, on the basis that the moral right had been assigned to them along with the sketches.

The High Court judge rejected the claim on the basis that moral rights are personal to the author or creator of the work. In this case, Mr Reid had created the sketches and although his employer (WFA) had assigned its rights to Front Door, WFA was not capable of assigning the moral right to be recognised as the creator of the designs. Mr Reid could not rely on the right of attribution himself either, as he had failed to previously assert it. Moreover, there was a complete defence under the Copyright, Designs and Patents Act 1988, because the defendant, The Lower Mill Estate Ltd, was the copyright holder, and Mr Reid’s moral right had arisen in an employment context.

Front Door is an important reminder that moral rights are personal to the author. Although these rights cannot be sold, assigned, or transferred, they can be waived (in other words the author can give up their moral rights in relation to a copyrighted work they created).

An owner of copyrighted work may want the author to waive their moral rights, to ensure that it has full control over the work. It is for this reason that waivers of moral rights are typically included in contracts of employment and consultancy.