Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


The Two Systems – Economic vs. Moral Rights

Daniel Huchla

The Law of Intellectual Property plays a valuable role in most if not all domestic legal systems.  The drafters of the United States Constitution were so cognizant of the value of this right that a congressional empowerment clause was designated specifically for Intellectual Property, more commonly known as the Copyrights Clause.[i]  Efforts toward the harmonization of intellectual property rights on an international scale have drawn into question two distinct approaches to copyrights, the protection of economic rights, and the protection of moral rights. In its history, the United States has viewed copyrights from an economic perspective. Whereas European nations are more likely to construct copyrights as moral rights. These differing perspectives might be illustrative while considering the pending litigation surrounding the commercialization of the writings of J.R.R. Tolkien.

huchla_blog3_photo1Cover art for editions of novels written by J.R.R. Tolkien and published by Houghton Mifflin in 1999.[ii]

The film adaptation of The Lord of the Rings Trilogy was a massive commercial success which received massive critical acclaim.[iii] This film lead to its own set of disputes over the sharing of profits between the filmmakers and the Tolkien estate. With the success, it was foreseeable that Warner Bros. would want to acquire rights to The Hobbit as well.[iv] A contract was signed, and three films were adapted from the novel. Although The Hobbit films were slightly less successful or acclaimed, this was not the cause for dispute between the Fourth Age, Ltd. (the corporate form of the Tolkien Estate) and Warner Bros. The lawsuit arose from the attempt to commercialize/market the films through the development of Lord of the Rings/ The Hobbit themed casino games.[v]

Under the United States economic rights approach, copyrights are designed to provide the incentives for authors to create. From this approach, an author’s interest is in the exclusivity of the economic exploitation of their work. Generally, from this approach once a copyright is licensed through contract, the author’s interest in the intellectual property is limited by the terms of the contract. Depending on the terms of the contract surrounding the marketing of the film, under a purely economic construction of copyright, Warner Bros. might be entitled to relief under contract law.[vii]


Image of U.S and U.K flags superimposed.[vi]

Under the European moral rights approach, copyrights are viewed from a perspective beyond pure economics due to a belief that there is an “intimate bond between authors and their works.”[viii]  Under this theory works are viewed as an extension of the individual. Accordingly, countries that subscribe to this construction of copyrights such as France, Germany, and the United Kingdom provide additional protections to authors. Among these protections are a right to ensure the integrity of a work.[ix] The right to ensure the integrity of a work is a separate right from the commercial copyright and accordingly would not be waived while licensing the copyright. This right would likely enable the Tolkien Estates to contest the marketing of the film adaptations through the creation of casino games.

Moral rights are acknowledged under International Law through the Berne Convention and Trade Related Aspects of Intellectual Property (TRIPS) agreement.[x] Article 6bis of the Berne Convention provides:

(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation. [xi]

The United States, while ratifying Berne, believed  that these obligations were sufficiently met by domestic law without further action.[xii]  This claim does have some basis in the findings of the Second Circuit in Gilliam v. American Broadcasting Companies, Inc..[xiii]  In this case, there was a dispute about the abuse of editorial discretion under a license agreement with the BBC to bring Monty Python’s Flying Circus to the United States.[xiv] The court protected the claims of integrity on behalf of members of Monty Python under the Lanham Act, 15 U.S.C. § 1125.[xv] Though the application of the Lanham Act in this fashion has been questioned. Accordingly, it is uncertain just how the District Court might interpret the moral rights of the Tolkien Estate, creating unclear bargaining position for any potential settlement.

Despite this rather contentious dispute between Warner Bros. and the Tolkien Estate, this has not stemmed interest in the development of additional films set in Middle-Earth. Fans of the novels and films alike have speculated about the possibility of adapting another of Tolkien’s beloved novels, “The Silmarillion.”[xvi]  Perhaps the Silmarillion will make it to the silver screen, but that will depend upon the resolution of the current litigation between Warner Bros. and the Tolkien Estate.  However, if moral rights were more clearly accepted in the United States, “The Silmarillion” might be more likely to become the next blockbuster film.

Daniel Huchla is a third year law student at the University of Baltimore and a graduate of Miami University with a Bachelor of Music. During his undergraduate studies, he performed in an International Opera Festival located in Brazil. He also serves as Associate Managing Editor for the University of Baltimore Law Review. Areas of interest include Administrative Law, International Humanitarian Law, International Criminal Law, and National Security Law. He is currently a Law Clerk with the Law Offices of McCabe, Weisberg & Conway.

[i] U.S. Const. art. I, § 8, cl. 8.

[ii] https://theliteraryomnivore.wordpress.com/2011/03/20/the-sunday-salon-out-of-print-and-current-us-editions-of-the-lord-of-the-rings/.

[iii] http://www.the-numbers.com/movies/franchise/Peter-Jacksons-Lord-of-the-Rings#tab=summary; http://www.theonering.net/torwp/2004/03/03/24877-complete-list-of-trilogy-oscar-nominations-wins-2/.

[iv] http://www.hollywoodreporter.com/thr-esq/warner-bros-claims-tolkien-estate-428390

[v] http://www.hollywoodreporter.com/thr-esq/tolkien-estate-sues-warner-bros-393212; see Fourth Age Ltd. v. Warner Bros. Digital Distribution Inc., 2013 WL 11316952 (2013); see also http://www.casinocenter.com/hobbit-quest/.

[vi] http://expatessentials.net/education-us-v-uk-education-systems/.

[vii] http://www.hollywoodreporter.com/thr-esq/tolkien-estate-sues-warner-bros-393212

[viii] Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int’ L. J. 353 (2006).

[ix] Id.

[x] Berne Convention, https://www.law.cornell.edu/treaties/berne/overview.html.

[xi] https://www.law.cornell.edu/treaties/berne/6bis.html.

[xii] Edward J. Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Bern Convention, 10 Colum.-VLA J. L. & Arts 655 (1985).

[xiii] 538 F. 2d 14 (2nd Cir. 1976).

[xiv] Id. at 23.

[xv] Id. at 24.

[xvi] See e.g. http://www.tolkienlibrary.com/press/1180-on-the-possibility-of-a-silmarillion-movie.php.