John McCoy reacts to Andy Baio’s copyright misadventure with typical American arrogance.

What’s being referenced here is the noxious concept of moral rights, the idea that an artist’s right to preserve the integrity of a piece of work can and should prevent anyone else from editing them in any way[.]

The moral right – the core of “copyright” (see below) in numerous industrialized countries that aren’t the United States – says nothing of the sort. Moral rights are not as sweeping as McCoy claims. A typical implementation of moral rights (as in Canada) allows an author to remain anonymous or to retain credit for the work. It also allows creators to prevent mutilation of the work, which can also be done by association (e.g., licensing a work to an organization you find reprehensible).

Moral rights are limited and are actually separate from copyright, though typically the two are found in the same bundles of written law. Moral rights do not trump copyright per se. In simple terms, a transformative work protected under U.S. fair use would not fall under the rubric of moral rights (even if such rights existed) because you didn’t mutilate the original. Of course you could gin up hypothetical counterexamples, like buying an original Basquiat and painting racist slogans over it. But the cases we’re talking about are photos and illustrations.

Moreover, there are hundreds of times as many court cases deciding copyright infringement as there are of moral-rights infringement. Moral rights are rarely litigated, in part because infringements are relatively rare and because the lack of precedent makes litigation difficult (a self-perpetuating cycle).

The American system of copyright does not, in fact, recognize moral rights[.]

Except it does for photographers (like Jay Maisel) and visual artists (like Andy Baio).

I have found places where my art was used unaltered without attribution or payment. If someone were to use one of my illustrations commercially, I would ask for payment; if they were to use it in a way I found offensive, I would ask them to stop.

In other words, McCoy enforces his moral right even without a law backing him up. That makes him not only a typical American but a hypocrite. I find his hypocrisy doubly galling because, despite listing a clear copyright statement on his portfolio site, he seems to subscribe to a Creative Commons–style share-alike philosophy about unauthorized reuse of his own work (“Most of the time, it just makes me smile – because I know my work is floating out there along”).

Creators, including photographers and illustrators, should defend their rights to the absolute max.

The foregoing posting appeared on Joe Clark’s personal Weblog on 2011.06.25 13:09. This presentation was designed for printing and omits components that make sense only onscreen. (If you are seeing this on a screen, then the page stylesheet was not loaded or not loaded properly.) The permanent link is:

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None. I quit.

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