Sunday, February 14, 2021

What's Moral Got To Do With It?

For anyone who has ever thought of having a photograph copied and inked onto their body, or --possibly-- thought of putting a copyrighted photograph onto the skin of a fictional character, there's an interesting lawsuit in progress.

Color me draconian. I was very interested to see whether the remedies sought by the copyright-owning photographer of a very remarkable photographic portrait of a great musician included a request for either the removal of the offending tattoo or a follow up tattoo to add the copyright management information. Apparently, the remedies sought are financial.

What, though, if the person with a copyright-infringing image on their skin were to be liable for infringement any time they took off their shirt in public? What if the image-bearer were a traditionally published author or musician and the copyrighted image might be somehow politically disfavored?

Publishers have "morals" or "moral turpitude" clauses in contracts, some more loosely worded than others, that allow publishers to cancel publishing contracts with authors and other artists.  When negotiating a contract, authors should pay attention to the contractual definition of "immorality". A mere accusation or allegation in private or on social media should not be sufficient. The "immoral" actor (or author) ought only to have their contract imperiled if they either admit to the immorality or if they are convicted in court of that immorality.

The "immorality" ought to rise to the level of illegality, and should not merely be a difference of opinion or something subjective. Also, the publisher should be able to show a realistic likelihood that the "immorality" is sufficiently offensive as to affect the anticipated market for the work.  Moreover, the "immorality" would have to be something of which the publisher was ignorant/unaware before signing the contract.

Happy Valentine's Day!

Rowena Cherry

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