Moral rights give an artist personal rights to her work. Because an artist puts her personality, spirit, and soul into the creation of her work, her honor and reputation may be harmed if her works are mistreated. In 1990, the Visual Artists Rights Act incorporated moral rights into U.S. copyright law. However, fair use became an absolute defense to moral rights violations. This comment proposes that fair use should not be an absolute defense, and applies First Amendment jurisprudence developed from defamation law to both fair use and moral rights. Defamation shares similarities with both. Like moral rights, defamation law protects one’s reputation. In addition, the actual malice standard, which is derived from defamation law, encourages public debate, which is similar to fair use. Fair use’s purpose is to encourage the dissemination of works that would otherwise be restrained by a copyright holder. Byanalyzing how moral rights, fair use, and defamation’s actual malice standard work together, moral rights can prevail against fair use, without fair use being sacrificed.
Mark A. Petrolis, An Immoral Fight: Shielding Moral Rights with First Amendment Jurisprudence when Fair Use Battles with Actual Malice, 8 J. Marshall Rev. Intell. Prop. L. 190 (2008)