The Digital Media Project

Source

Philip Merrill

Title

TRU #43 Right of reputation

No.

040323merrill06

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/03/23

 

#

Criteria

Description

1.

Name of TRU

Right of reputation

2.

Summary description of TRU

Rights of reputation include an author's economic rights not to have their work presented in a manner harmful to their future sales, a celebrity's right not to have their physical image misused to create a false appearance of endorsement, and a moral right not to have works subjected to derogatory treatment.

3.

Use records of TRU

As one might expect from the nature of a person's "reputation" in itself, this is a multifaceted TRU - seemingly innocuous and yet deceptively important. It bears on moral rights primarily through integrity but also through the three-step test of special cases that do no harm to a work's normal exploitation or to the author's reputation, that third step being essentially a moral right and therefore inalienable according to some legal systems notably that of France. As an economic right, reputation is also multifaceted because economic rights tend to be covered by a host of diverse possible claims perhaps the most notable of which are unfair competition, trademark and defamation but the essence of all of them coming down to compensation for economic harm when it occurs. Although economic harm to a creator's reputation might be very hard to quantify because it is gambling to guess a creator's future income, the consequences can be death to sales since a bad reputation can make a person's work anathema to buyers. Finally, reputation has a more narrow use that seems primarily economic in the arena of public figures whose celebrity status subjects them to having to permit certain types of reproductions of their physical appearance - such as magazine snapshots or artistic portraits - but protects them from reproduction of their physical appearance in areas that would be considered product endorsements or merchandising of their image.

Although this TRU might seem a trickster and a Proteus, and therefore quite hard to pin down, one should expect it to pop up unexpectedly as being very important. Creators want to be regarded well and any use of their work or image that seems to injure this will likely result in cries for protection. As a colorful instance, an important court case decided on a celebrity's "right of publicity" (treated here as essentially synonymous with reputation) involved the talk show host and comedian Johnny Carson who was introduced by the phrase "Here's Johnny." A manufacturer of portable toilets used the slogan "Here's Johnny, the World's Foremost Commodian" [from Paul Goldstein's "Copyright's Highway", Chapter 1], a use that while funny also gives rise to an unpleasant mental association between the comedian and bowel movements.

4.

Nature of TRU

Legally supported in a variety of forms, both moral and economic. See also 59. TRU moral rights, with respect to the nature of moral rights generally.

Under some national legislations, penalties for harm to moral right of integrity are calculated based on quantifiable damage to reputation (ref. Goldstein, International Copyright, Sec. 5.4.2.2). Reputation can also be protected under defamation laws.

An interesting British case pertaining to Oscar Wilde's "reputational interests" is described at Id. Sec. 5.4.I.I.ii regarding a ballet based very loosely on the author's short story "The Nightingale and the Rose". Had the defendant not referred to the story and its author in their advertising, the works were sufficiently dissimilar, and founded on folk tale in the public domain, that it would have been difficult to find any infringement. In this sense, an author's right of adaptation can be considered an extension of TRU reputation. The market value placed on reputation seems to attract both "bottom-feeders" and spin-offs of a more acceptable (and hopefully authorised) kind.

5.

Benefits of TRU

Benefits Right-holders.

6.

Possible digital support

The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report).

Such an approach could provide a number of alternative support systems for data pertinent to a creator's reputation - providing a reputation-cloud so to speak of pertinent authorised data.

7.

Requirements

DMP shall support the right of reputation

Note RQs proposed for TRU integrity

8.

References