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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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Copyfight, the Solo Years: April 2002-March 2004

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« Surprise! Students Disagree with Gonzales on File-sharing | Main | Doonesbury vs DRM »

May 2, 2005


COMMENTS

1. Crosbie Fitch on May 2, 2005 10:33 AM writes...

An artist's moral rights should cover this, i.e. one artist creating a work that is implicitly misattributed to a different artist. An artist has a moral right not to have work attributed to them that is not their own.

As long as Opel is careful to ensure that it is not so misattributed, then it is fine. This either means making it obvious that it is an impersonation, or making it obvious that it is not Tom Waits.

Permalink to Comment

2. Cory Doctorow on May 2, 2005 11:20 AM writes...

I love Waits, but he's out of his mind if he thinks he has the exclusive right to control the use of voice-overs that kinda sound like they mighta kinda come out of his throat. Cheez.

Permalink to Comment

3. Neo on May 2, 2005 11:49 AM writes...

"Moral rights of artists" is an evil, evil concept anyway. It is basically an end run around the "for limited terms" bit in the progress clause (or international equivalents), much like DRM + DMCA-style anti-circumvention clauses, providing a way to exert copyright-like control over a work for unlimited times and in ways that go way beyond what mere copyright law grants as exclusive rights -- not only derivative works can be forbidden, but anything vaguely resembling a work, however original; fair use can be forbidden entirely; etc.

Permalink to Comment

4. Crosbie Fitch on May 2, 2005 1:04 PM writes...

Moral rights are simply applications of the 'right to truth'. Truth is inalienable and lasts forever.

The 'temporary' monopoly granted by copyright is a far greater restriction on artists' freedom than the moral requirement that they do not incorrectly attribute their work.

If anything is evil it is a demand to be immoral in terms of crediting the wrong artist for another's work, e.g. plagiarism.

Permalink to Comment

5. Chris Brand on May 2, 2005 1:54 PM writes...

The basic idea of moral rights is great. As somebody described above, it's about truth. The right to have (only) your own name associated with your work, etc.

Unfortunately, the "moral rights" label has been applied to all sorts of additional rights that are much more focussed on "control" - the right not to have your work associated with something you find objectionable, for example.

While personally, I'd be happy for the "truth" moral rights to last forever (and I have a suspicion that doing so would lessen the pressure for economic rights to last forever), these "control-oriented moral rights" are at least as objectionable as the economic rights, so I wouldn't want them to last any longer than strictly necessary.

Permalink to Comment

6. Crosbie Fitch on May 2, 2005 2:47 PM writes...

Moral rights are fundamentally about truth and the individual's freedom of choice in whether or not they publish their work.

There is no moral right that grants one person the ability to restrict the moral rights of another.

As long as the work you publish is your own, or is based on others' published works (or unpublished work with permission), and you correctly attribute it (which includes ensuring it is not implicitly misattributed) then you can publish anything you damn well want, whether highly derivative or highly original. (which is unfortunately constrained by copyright)

If you create a derivative work that appears to insult the artist of the work it derives from, then that's fine (assuming no misattribution).

However if you create a derivative work that appears to indicate that it has been made with the blessing of the original artist then if untrue, this is misattribution, e.g. it may imply that the original artist supports a political message presented by the derivative.

So yes, an artist has, in perpetuity, the right not to have statements/beliefs ascribed to them by implicit misattribution of work to them.

But, this doesn't prevent the publication of such works, it just means that such works must be extremely careful to clarify that they do not have the blessing of the original artist, which obviously, in many cases will interfere with the message someone hoped to achieve. The solution is that if you want to make a statement with someone's artwork, ensure you have their blessing - or produce your own artwork that's clearly not that of the original artist.

Permalink to Comment

7. Neo on May 3, 2005 6:30 AM writes...

It's the extension of the "moral rights" concept to control use of a work with an iron hand that is objectionable -- it basically provides an end run around limited copyright terms, enabling someone to restrict the creation of derivative works perpetually -- by making their creation too risky (a legal minefield) if nothing else.

Permalink to Comment

8. jack phelps on May 3, 2005 4:38 PM writes...

I'm too lazy to check if anyone else noted this, but waits participated in a suit like this before with (I think) ford, many years ago (when he was popular). It's actually trademark infringement, not copyright infringement, and the case hinged on his ability to demonstrate that a reasonable man would think it was his voice endorsing the product.

The copyright tack is different--it's like claiming he invented the aesthetic, but he's not exactly doing that, is he?

Permalink to Comment

9. Branko Collin on May 4, 2005 7:17 AM writes...

Let me see if I can summarize the debate: using a Tom Waits song with a commercial = GOOD, pretending that Tom Waits endorses Opel = BAD.

Now only if we did not have copyright...

Permalink to Comment


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