Why Do We Have To Waive Good-bye To Moral Rights?

Signing a moral rights waiver doesn’t mean writers have no further rights in the exploitation of their work.

Every contract you sign with a producer based in English-speaking territories will contain a ‘waiver of moral rights’. In signing it, you are permitting the producer and her/him/their agents to make material changes to your work without fear of legal action to undo those changes.

In all other European jurisdictions, the legislation governing copyright says that the author’s moral rights and their work are indivisible and cannot be sold or assigned.

For any writer, control over the integrity of the final work that they have initiated is fundamental yet the ‘waiver of moral rights’ attracts no additional fee. It is part and parcel of the overall agreement. If there was a premium on the waiver, producers would have to be more creative (or better financed) than they need to be at present. However, we are where we are.

Is the ‘waiver of moral rights’ just a power grab by producers? Yes and no. I’ve yet to meet one who didn’t think they knew better than I how to exploit my work. That said, the ‘waiver of moral rights’ is a corner-stone of the English-speaking market’s financing models as it puts a padlock on what is called ‘chain of title’ – a fancy way of saying that the person seeking financing on a screenplay actually owns – or has an option to own (and therefore wholly controls) – the work in its entirety.

Part and parcel of owning something is that no other person or entity can compel the producer to make changes or undo changes that may interfere with its commercial performance. For example: if a writer insisted on re-instating a downbeat ending on a film or TV project that had been rewritten (or re-interpreted by a producer or director) to conclude with a happy one.

So What Are The Moral Rights Of Authors?

In Irish law they are very specific. You can read them in all their glory here:

Or slightly snappier:

  • The right of paternity asserts that the copyright owner has the right to be identified as the author of a work.
  • The right of integrity allows the copyright owner to object to the derogatory treatment of a work, in other words, to prevent others from re-writing the original manuscript or to make material changes to the material that derives from the screenplay i.e. the film or TV production.
  • The right prohibiting false attribution – a tricky concept this – essentially an author has a right not to be identified as the author of someone else’s work. So, no worries that J.K.Rowling’s name can be attached to a piece of fan fiction, for example.

That’s all. Nothing more.

There are lots of other rights which an author (or more accurately the copyright owner when the creator sells on the intellectual property) possesses that are not waived by waiving moral rights. For example, the new rights to fair and proportionate remuneration (or ‘the best-seller clause’) and the compensation mechanisms that make it enforceable that the 2019 European Copyright Directive bestowed on creators (you find out more about those particular rights here).
That doesn’t mean that producers won’t seek to contract around those rights and it’s essential to be informed and vigilant when it comes to contracting.

The WGI believes that even after copyright has been transferred or sold to the producer or the special purpose vehicle (SPV) company established to be the rights holder of the project, the writer must be accorded ‘meaningful creative input’ into the development and execution of the work they have created.

‘Meaningful creative input‘ is defined (in the case of, say, a TV series that a writer has created) as a voice in the development of the project, the direction of series arcs, a say in casting, the choice of director and participation in discussions on key creative decisions including the right to supply notes on each cut of the produced series.

Creating More Value

As you gain credits and kudos as a screenwriter, your value increases and with it your bargaining power. This is where you must insist on fairer contracts.

However, the contracts you will be typically offered will seek to hoover up as many rights to your original work as possible. These secondary rights such as sequels, prequels, merchandise and spin-offs such as books, musicals and so forth can be incredibly valuable and you will be asked to sign away those rights in perpetuity (forever, to you and me). In all media including those yet to be invented (dying to see those). Throughout the known universe (so even the aliens get to see your work without further payment to you). All of that without any further benefit to the very person who begat it to begin with.

Maybe we should call these a producer’s ‘immoral rights’?

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