In a basic sense moral rights comprise the following:
The right to be identified as the writer of a work
This means that if you have written a work you have the right to be fairly credited as the author.
The right to not be identified as the writer of a work
If you haven’t written a work, or if you have had your original work so altered that it no longer is a fair representation of your labours, you have the right to not be identified as the author.
The right to freedom from derogatory treatment of a work where such treatment would be prejudicial to the writer’s honour or reputation
Simply put, you have the right to not have your work subverted so that it portrays you in a bad light. For example, you have the right to not have your sensitive love story turned into a raunchy porn movie. Or your documentary on religious orders transformed into one supporting satanic cults.
Someone merely altering your work, while often unpleasant to watch as a creative, doesn’t typically constitute derogatory treatment unless it goes to these types of extremes. All creatives should realise that the screen industry is collaborative. Work is always going to be altered in ways that people don’t agree upon. This moral right isn’t meant to stop editing but rather protect against the work being so altered as to malign the writer’s reputation.
Moral rights are recognised in New Zealand law under The Copyright Act 1994. However, they must be actively asserted so you must actually make a statement in your contract to the effect that “The writer asserts their moral rights in the work”. Moral rights cannot be sold or assigned to another person (except on the death of the writer) but they may be waived. A waiver is essentially a promise not to enforce a right.
The standard view from most producers is that moral rights in written work are always required to be waived by both domestic and international investors and distributors. The rationale behind this is that a work may need to be dubbed into another language or edited for television, airflight screenings and the like. It is claimed that the author’s right against derogatory treatment goes against the commercial reality of putting that work into the marketplace. One supposes that distributors and financiers feel threatened by the possibility of authors suing them, claiming a breach of moral rights simply because some third party edited their film or television programme. Therefore, the current practice is for local writers to automatically provide a moral rights waiver.
This waiver requirement means that writers should be aware of the need to ensure that credit provisions in contracts adequately provide for them to be fairly identified as the writer, or enable them to remove their name from the credits should they wish to.
Protecting against derogatory treatment of one’s work is a more complicated matter. Defamation law has been mooted as an adequate substitute for the freedom-from-derogatory-treatment Moral Right but would only seem to apply in the most severe cases of derogatory transformation of the work. In any case, true derogatory treatment of work, in a legal sense at least, is rare.
One solution to the up-front waiver of moral rights can be found in the NZWG model contracts. Instead of requiring the writer to waive their moral rights, the contracts enable writers to assert them but provides that the rights be later automatically waived if so required by a further funder/party. A general exception to allow fair editing of the work is also in the contracts.
Given that all distributors and financiers will require such a waiver this might seem like a nonsense, but this way of working allows the writer the dignity of actually asserting their rights to the fullest extent in the first place.
Excerpt from the New Zealand Writers Guild/Screen Production and Development Association Model Contracts.
The Author asserts to the fullest extent allowable by law all moral rights the Author has now or may have at any time in the future in relation to the Work and in relation to the Rights assigned to the Producer by this Agreement except if there is a contractual obligation on the Producer or the Producer’s primary funder or from an international funder, distributor or other provider of finance that requires these moral rights to be waived. If there is such an obligation the Author waives all moral rights in the Work.
Notwithstanding, the Author consents to reasonable material alterations that accord with industry practice being made to the Work to enable the Producer to comply with the reasonable requirements of third parties that are necessary to allow the Producer to exploit or exercise the rights granted by this Agreement. Examples include but are not limited to alterations for the purposes of fitting the Film within a TV time slot, to incorporate advertisements, to meet legal broadcasting or classification requirements, to dub or subtitle the film into other languages, to make inflight versions of the Film or to use excerpts of the Film for advertising or promotional purposes.