Moral Rights For Musicians: The One Thing You Can't Sell

On the 10th of February 2012, an Australian court ordered a Perth DJ to pay ten thousand dollars for editing one song. Not for uploading it. Not for playing it out. He had already been found liable for both of those, separately. The ten thousand was for what he did to the track.

He took a pre-release Pitbull song, cut the opening off it, and dropped in a voice tag naming himself. The case is Perez & Ors v Fernandez, Federal Magistrates Court of Australia, decided 10 February 2012.

The right he broke is a right you own right now, that you cannot sell, and that almost every piece of paperwork you sign asks you to let go of.

There are three of them

It is called a moral right. In Australia it lives in Part IX of the Copyright Act 1968.

• Section 193 — the right of attribution. You get to be named as the author of your work.
• Section 195AC — the right not to have authorship falsely attributed. Nobody else gets to be credited as the writer of your song.
• Section 195AI — the right of integrity. Nobody gets to treat your work in a way that is prejudicial to your honour or your reputation.

The Act calls that third one derogatory treatment, and it spells it out: material distortion, mutilation, alteration, or anything else prejudicial. That is what the DJ broke.

Four things most artists get wrong

These four are set out plainly by the Arts Law Centre of Australia, and almost nobody self-releasing knows all of them.

1. Only a human holds them. A company cannot. Not your label, not your distributor, and not your own company on your behalf.
2. They are separate from copyright. If you sell your masters tomorrow, the buyer gets the copyright and you keep these.
3. Performers have their own set. If you sang on it or played on it and wrote none of it, you still have attribution, false attribution and integrity in your performance.
4. Section 195AM — they last as long as the copyright does. Your life, plus seventy years.

You can't sell it, so the paperwork asks you to consent

You cannot assign a moral right. You cannot sell it. There is no transfer written into the Act, because the right is attached to you, not to the work. So the paperwork does not try to buy it. It asks you to consent.

Section 195AW, and section 195AWA: consent, in writing, to specified acts or omissions that would otherwise infringe. A consent clause can be written two completely different ways.

• Narrow: the artist consents to the recording being edited for length in advertising. That is a real need, scoped to one act, and it is fine.
• Wide: the artist waives all moral rights, and consents to any act or omission by the company or its licensees.

The Arts Law Centre's own guidance is blunt about the second one. A clause saying you waive your moral rights entirely may be read as a wholesale consent, in writing, to all future infringement.

What this does not mean

I am not a lawyer, and this is general information rather than advice. It is Australian law, and moral rights are not the same in every country. In the United States there is no general right of attribution for recorded music at all — the Visual Artists Rights Act covers certain works of visual art and nothing else — so a contract drafted there may simply not mention any of this.

There are also generally no moral rights in a sound recording itself. They sit in the song underneath it, and in the performances on it. The master does not carry them.

And there is a defence. Section 195AS: a derogatory treatment is not an infringement if it was reasonable in the circumstances, and there is a matching provision for attribution. There is no reasonableness defence to false attribution.

Keep the money in proportion too. Ten thousand dollars is not a payday, and the judge in Perez found no lasting damage to Perez's reputation.

Three things to actually do

1. 1Search the last thing you signed for one word. Distribution, sync, a remix deal, a contest entry form — open it and search for “moral”. If what you find says waive, or says any act or omission, that is the wide version. You can ask for it scoped: name the acts.
2. 2Write your own credits down. One place, public, with a date on it. Songwriters and splits, producer, performers, remixer. Attribution you never stated is attribution nobody can check.
3. 3If it is already wrong, you do not have to prove you lost money. The remedies in the Act include damages, an injunction, a public apology, and an order to reverse the false attribution. Arts Law says start with a letter of demand.

Why this is on the droplr blog

I built droplr.fm on my own: pre-saves, a bio page, and download gates. The reason this argument ends here is narrow. Your own page is the one place the credit line is yours to write — no review, no editor, no clause. Three new releases are free, in any rolling 12 months.