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【Column by Lawyer Lan】 How Should Creators Protect Their Rights? The Implication and Practice of “Moral Rights”

【Column by Lawyer Lan】 How Should Creators Protect Their Rights? The Implication and Practice of “Moral Rights”

How do the authors/ licensors meet the requirements of users/ licensees to the extent permitted by law while retaining (rather than assigning or waiving) moral rights in a way matching the needs of tech mediums integration? It will require art professionals to comprehend IP knowledge thoroughly and realize the outcome in practice through communication and negotiation. By doing so, art professionals can embed such respect and trust into the parties' relationships, practically implement the agreement, safeguard authorship and avoid the dilemma of infringement.

Introduction

In early October of 2022, an ongoing outbreak of a domestic affair in Taiwan, popularly called “Party B’s Incident,” [1] stirred up art professionals and aroused a great deal of public discussion. The incident concerned a dispute in renewing a contract between a radio station and a senior broadcast music host, Ma Shifang, who addressed the unfairness that the radio station wanted to own copyrights in the broadcast program.

The radio host Ma Shifang was “Party B” and called on the society members to add their voices of respecting copyrights, prompting the contract’s “Party A,” Indigenous Peoples Cultural Foundation (IPCF), to promise to review the agreement with the broadcast host under full scrutiny. The dispute seemed to come to a satisfying end as IPCF is planning to amend the contract with the new clause – “Both parties shall own copyrights jointly,” and deleting the unreasonable clause – “(Party B shall)…waive their moral rights.”

Later on November 5, 2021, the Ministry of Culture, along with the Ministry of Economic Affairs, enacted “Regulations Governing Copyright Protection of Cultural and Art Workers and Enterprises,” where the content addresses the principle that the standard condition should be a nonexclusive license to grant the licensee in the use of the copyrighted material, and emphasizes the protection of moral rights and rights of attribution, which appears to strengthen the safeguard of creators.

While this incident occurred nearly two years ago, how much have art professionals improved their understanding pertaining to “moral rights”? That most of the creators are still uncertain of the term – “moral rights,” which is inevitably contained in their agreement- indicates a worrying situation of the cultural and creative industry falling short of legal knowledge and a gloomy outlook on fighting for fair treatment.

This article aims at the analysis concerning the features and exploitation of moral rights as well as domestic and foreign infringement cases, and exemplifies the standard contracting clauses to discuss how creators protect their moral rights.

Three Features of Moral Rights

The three features of moral rights include the right of disclosure, the right of attribution, and the right of integrity, all of which belong exclusively to the author and shall not be transferred or succeeded (Article 21 of the Copyright Act). When art creators read their licensing contracts, it’s almost impossible to miss the term “moral rights”, but they often stay uncertain about its meaning and cannot tell the difference with “economic rights”; in this regard, many have come to a position of extreme resistance to reaching a deal that compromises on moral rights in the agreement. It is perplexing to see the shift in creators’ attitudes from full consent of the waiver of moral rights without hesitation to absolute resistance to any possible compromise.

Frankly speaking, whether there is a need for “Party B” to fully resist such compromise on moral rights should be left room for discussion. For example, most creators have no objection to “the right of disclosure,” as releasing the work to the public is within expectations upon completion. Except for very few writers like Franz Kafka or Milan Kundera, who under special conditions had no intention to release their work to the public and wanted their work to be burned out. In other words, not enforcing this right will not lead to an outcome damaging the creators’ rights. As for the consideration of whether modifying or adapting the creators’ work would trigger the violation of the right to integrity, a clear stipulation in the agreement could be a good solution [2].

Surely, the right of attribution, the apple of the author’s eye, should be reserved for the author. Then the author can reach a deal that compromises on not enforcing the other two features of moral rights for the benefit of the user’s promotion or in compliance with the production company’s policy, which is likely to ensure to achieve both parties’ purposes. However, some creators have become so sensitive about any compromise that they set up constraints in the use of their work by making no distinction in objecting to any deal on putting a hold on moral rights.

Who Enjoys Moral Rights? Employees or Employers? Creators or Commissioning Parties?

It is a general principle that creators (i.e. authors) have moral rights. Article 10 of Taiwan’s Copyright Act stipulates that “the author of a work shall enjoy copyright upon completion of the work; provided, where this Act provides otherwise, such provisions shall govern.” Here “exceptions provided in this Act” include the circumstances set out in Articles 11 and 12, where there is a relationship of employment or commission resulting in an agreement stipulating in advance that the author would be the employer or the commissioning person, rather than the creator.

In other words, prior to the completion of the work, the employee and employer (or the commissioned person and the commissioning party) have come an agreement regarding the ownership of the copyright in the completed work – Once the employee (or the commissioned person) completes such work, the employer (or the commissioning party) shall be the author and obtain the moral rights as well.

Stipulation of Non- Enforcement of Moral Rights

In general, the contract always includes the term governing the ownership of intellectual rights. Let’s take an example of one standard clause here:

“Party B or the designated third party (including the Investor and Joint Venturer) has all rights and IP rights (including moral rights, economic rights, trademark rights, and patents rights) in, and is the author of, any work and contents (including but not limited to the storyline, character outlining, script outline for each episode, full script, etc.) made and completed for the Production, the Movie and the performance of Party B’s duties under the Agreement.”

After slowly coming to an understanding that moral rights are unassignable under the law, currently in practice, both parties stipulate that moral rights are vested jointly in them, or Party B agrees not to enforce moral rights.

In the court’s opinion, “Non-enforcement of moral rights means the creators do not enforce the rights under Articles 15, 16, 17 of the Copyright Act, rather than they are not entitled to the rights. When the author contracts not to enforce moral rights in their work, if the other contractual party publicly releases the work, indicates or not indicates the author’s name, or changes the contents, form or name of the work without the author’s consent, the author cannot assert his moral right because of his stipulation with the other party that he would not enforce his moral rights. (Taiwan High Court Civil Judgement 92 Sue-Tzu 58).

(1) Joint Moral Rights:

For instance, the Movie Production company (Party A) and the Director (Party B) can agree as follows:

  • The Film shall be the joint work by both parties as an outcome of film production. Party A and Party B have joint ownership of the copyright (including economic rights and moral rights) in the Film.
  • Party B’s right will be ensured by identifying Party B to be the joint producer and production company in all the copies of the Film and related promotion materials.

(2) Non-Enforcement of Moral Rights

For instance, the Movie Production company / Department of Cultural Affairs (Party A) and the Screenwriter / Entrant (Party B) can agree not to enforce Party B’s moral rights:

  • Party B is the owner of the moral rights in the Subject Matter (i.e. Screenplay) and Party B agrees not to assert such moral rights against Party A and the person authorized by Party A.
  • The Entrant, __, agrees to grant a non-exclusive right to the Organizer (XX Department of Cultural Affairs) to use the Entrant’s original work, the entry to XX Contemporary Poetry Competition, for the purpose of city marketing and culture promotion. Meanwhile, the Entrant promises not to enforce moral rights against the Organizer (XX Department of Cultural Affairs).

Infringement of Moral Rights

When the author’s moral right is infringed upon, under Copyright law’s protection, the copyright holder may demand removal or prevention of such infringement, claim damages including economic and non-economic damages, and demand indication of name or appellation of the author, correction of content, or adoption of other appropriate measures necessary for the restoration of its reputation. As moral rights are perpetual, Article 18 of Copyright Act stipulates that “The protection of moral rights of an author who has died or been extinguished shall be deemed to be the same as when the author was living or in existence and shall not be infringed upon by any person.” Unlike economic rights with limitations on protection duration, there are considerable moral rights infringement cases occurring after the author’s death, where the author’s spouses, children, parents, grandchildren, brothers and sisters, grandparents and persons specified by the author’s will are entitled to request remedies according to Article 86 of Copyright Act.

Most of the time, artists’ efforts put into their works are enormous and nonstop growing until perfection, and in return, lawmakers are paying respect to artists’ freedom of creation by granting artists the right to release their complete work under Copyright Act. However, there are considerable infringements on the moral rights of the creators caused by the users or licensees out of inappropriate exploitation, private benefits or willful infringement. We provide some leading examples of infringements in the cultural and creative industry and analyze them as follows.

(1) Inappropriate Scenes Cut on the film “The Furthest End Awaits”

This is a famous moral rights infringement case from the film industry. According to the press, “The Furthest End Awaits” was a film produced by the Taiwanese director, Chiang Hsiu-Chiung, who was hired by a Japanese film production company named Toei. Its movie release in Taiwan was on April 24, 2015 and its DVD release by a Taiwanese distributor company was in November of the same year.

During the movie’s Screening Talk with Director on May 6, 2017, the director unexpectedly found a 9-minute cut at 1:05 of the movie in the DVD. While the total length of the movie is 1 hour and 58 minutes, the missing 9 minutes part consists of 6 scenes and plays a vital role in connecting the complete storyline and explaining the plot twist. That such an important part got cut off gave many audiences a hard time understanding how the plot was developed.

It was reported that the Taiwanese distributor had noticed such cut in the DVD, and further identified the cause of the missing 9-minute clip to be the negligent omission of DVD postproduction company rather than the shortage of movie materials; nevertheless, the director had never been told anything about this. It was until the time the director discovered and made the protest that the Taiwanese distributor started to make an apology announcement and a prompt remake of the DVD with complete scenes, along with a notification for the audience customers who had bought the defective products that exchanges are available with all sales channels [3].

What should be further asked in this incident is whether the distributor had the right to edit the film. Can they cut off the movie’s content at their own discretion? Does such omission of a 9-minute clip in the movie constitute an infringement upon the director’s moral rights?

In general, the DVD distributor has no right to edit or cut the full movie. If it was the case (as the press reported) that this 9-minute crucial clip was omitted carelessly in the course of DVD production and such cutting caused the audience to misunderstand the ending or the plot of the movie, resulting in inconsistency between what the film delivers and the story director originally wanted to tell, as well as a negative impact on the audience rating regarding the director’s profession and art presentation, then, the director’s moral right- the right of integrity- in the film is infringed upon, and the director has legal rights to demand the Japanese film company, Taiwanese distributor and the DVD manufacturing factory should take back the defective DVDs, apologize in public, restore the status quo ante and make compensation.

(2) Banqiao Train Station Had Public Art “Desires Flying In the Air” Chopped off

In the 2001 Public Art Selection Activity held by Taipei Railway Underground Project Engineering Office of the Ministry of Transportation and Communications, Yilan Artist Huang Ming-Che’s work – “Desires flying in the Air,” a pop-up metal sculpture, was selected and suspended from the ceiling in the ground floor lobby of New Taipei City Banqiao Train Station.

Huang Ming-Che’s work – “Desires flying in the Air” (left) is cut off the lower half of the object (right) by Taiwan Railways Administration (TRA) without informing the artist and obtaining his consent. (copytight to TRA and Culture Affairs Departmant of New Taipei City)

Let’s take a look at the heartwarming description for this artwork on Railway Bureau’s website: “For the crowds centered around the train station, they might be waiting, anticipating someone or proceeding forward. As the train sets off, their desires flood out at the train’s running speed. And when the train pulls in, amongst the crowds, there is home comer’s longing, or a visitor’s dream. With imagination, you see the desires floating in the crowds’ steps – upon arrival of the inbound train and departure of the outbound train.”

Undoubtedly, “Desires flying in the Air” has caught many travelers’ attention; thanks to this red object softening visitors’ hearts, Banqiao Train Station has been levelled up over its charms. Until today, we can still see the picture of its original work and read its introduction on Railway Bureau’s website and the Ministry of Culture’s Taiwan Public Art website.

Out of the blue, an unexpected alteration was made to “Desires flying in the Air” in 2014. According to the press, Taiwan Railways Administration (TRA) found the hanging object too close to the ground, only leaving 1.8 meters to the floor, so to avoid the object from hitting passengers on their heads, or to ban pedestrians’ curious touch on the installation, TRA cut off the lower half of the object at its own discretion, without informing the artist and obtaining his consent.

The journalist described the creator’s mood amid expression of sorrow, “This removal demonstrated total disregard for the artist’s brief and “a kill to the creator’s passion” in horribly brutal fashion.” This incident also attracted criticism from academics, “With taxpayers’ money, the authority deprived the artwork of its completed presentation in public – total disrespect to the artist, and a tragic discredit to the work.”

After the artwork’s delivery from the creator, no matter whether its copyrights are being licensed or transferred, moral rights still are retained by the creator. In the event of safety concerns that the artwork has to be adjusted, TRA should have communicated with the artist and decided on the modification based on the artist’s concept or negotiated other measurements for safety concern, so that the artist’s idea and legal rights could be appreciated and protected.

It’s something ridiculously lacking in consideration that TRA failed to proceed in compliance with ethical and legal provisions; instead, they went in along by changing the shape of “Desires flying in the Air” – splitting the artwork, changing its outlook, and damaging the completion of streamline. The artist’s attempt embedded in the work used to be passing the crowd’s flowing desires via the entire installment, but now the expression cannot be recognized due to this incompletion; in addition, the artwork could be inappropriately or mistakenly interpreted, all of which seriously infringed upon the artist’s moral rights – the right of integrity- in his metal pop-up artwork [4].

(3) The Removal of Graffiti by British Street Artist Banksy

In 2018, British Artist Banksy painted his mural “Season’s Greetings” on two sides of a suburban garage in Wales. The graffiti work consists of these two pieces of wall – one wall shows a small boy with mouth open and arms outstretched, welcoming the snowflakes falling from the sky, but the other side of the wall shows the snow turned out to be the smoke and ash generated by a fire in an iron bin. The artwork implied the commentary provoking pollution issues in the Welsh steel town. In his IG, Banksy admitted the work was his and gave it a name, “Season’s Greetings,” which drew tons of crowds to visit. Being unable to take on the pressure of artwork protection and public attention anymore, the garage owner sold the piece to an art dealer, who later moved the wall to the new local gallery set up in the town [5].

 
 
 
 
 
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Several legal issues appear in this case, like which type of copyrighted work does street graffiti belong to? Is street graffiti under copyright protection? Who has ownership of street graffiti on the wall? When the garage owner tore Banksy’s painting off the wall and sold it out at his own decision, would such an act qualify as an infringement of the artist’s economic or moral rights? When there is a conflict between the mural’s copyright and the ownership of the building’s wall, which right prevails? How do the two legal rights balance?

(4) Whitewashing and Tearing Down Graffiti-Covered 5Pointz Warehouse

A similar legal right conflict also occurred in New York: the real estate developer Gerald “Jerry” Wolkoff, in 2002, started to allow local artists to freely use 5Pointz warehouse as an exhibition space for street art, and since then, the location had grown into a New York landmark. However, in 2013, the developer decided to tear down the warehouse, which resulted in objections from the graffiti artists. In October of the same year, the artists applied for an injunction order to stop the teardown.

5Pointz warehouse in 2013. (Source: Wikipedia)

While the case was still with the court, the developer whitewashed the graffiti on the warehouse in November 2013, and tore down the warehouse in August 2014. What followed were lawsuits brought by 21 artists between 2014 and 2015 that they had changed their relief to monetary damage from the developer. The total number of plaintiffs was 21 graffiti artists, and the U.S. New York District Court consolidated their cases for trial in October 2017.

During the trial, the plaintiffs graffiti artists claimed the defendant committed violations of Visual Artist’s Rights Act (VARA). As set out in 17 U.S.C. §106A (a) (3) (A), (B): “The author shall have the right to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation…,” and “The author shall have the right to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

Also, pursuant to 17 U.S.C. §113 (d) (2), “If the owner of a building wishes to remove a work of visual art which is a part of such building… the author’s rights under paragraphs (2) and (3) of section 106A(a) shall apply unless — (A) the owner has made a diligent, good faith attempt without success to notify the author …, or (B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.” It can thus be said, in this case, that the defendant should bear the responsibility to compensate the damage and loss due to his failure to give notice.

The defendant developer contended that the graffiti was not copyright-protected owing to its nature of temporality. The U.S. New York District Court ruled that the defendant is liable and awarded the plaintiffs USD$ 6.7 million in damages. The reason is that the court construed that the art value of graffiti is no less than artworks in the museums and they should be under the same protection; the decision also reflected a perception of such graffiti falling into the category of high-quality artistic works, where the temporary creation of graffiti is not excluded.

Considering the defendant developer was calling the shots to destroy the paintings by whitewashing the wall, his infringement of artists’ copyrights was apparently “willful;” therefore, the defendant was found liable [6].

(5) Blueprint in Tainan and Rainbow Village in Taichung

Similar cases also came about in Taiwan. Haian Road’s “Blueprint”, designed by architect Liu Kuochang in the project commissioned by Tainan City’s Department of Cultural Affairs in 2004, was washed out by the property owner in February 2014. In July 2022, in Taichung’s popular cultural attraction, Rainbow Village, one cultural and creative company (Rainbow Creative) used purple, blue and red paints to cover the colorful paintings by Huang Yongfu, aka “Rainbow Grandpa,” on the village’s walls. Such act has been reported to the police by Taichung City Government with the charge of criminal damage to property. Now let us delve into the question of whether the house owner on Tainan’s Haian Road or the Tiachung’s Rainbow Creative had infringed upon the copyright or ownership:

  1. “Blueprint” on Tainan’s Haian Road

In general, “blueprints” are drawings that architects use to plan new buildings and belong to architectural works. But in this case, “Blueprint” on Tainan’s Haian Road was no longer used to depict construction as it had transformed to serve as a beautiful mural in the community; thus, it can be within the category of artistic works under copyright law.

“Blueprint” on Tainan’s Haian Road. (© West Central District, Tainan City)

With respect to Blueprint being incorporated into a building, it is the building owner who has ownership of the wall. Because such ownership entitled the building owner to decide how the wall should be used and also overshadowed the copyright to the artistic works, the building owner changed the wall’s outlook to another purpose and stopped maintaining the outlook of Blueprint, which Blueprint’s copyright holder cannot prevent from.

However, without prior notice, the building owner’s brutal whitewash eliminating the Blueprint overnight left us questioning whether such actions had infringed the artistic copyright. Besides a review on the terms regarding copyrights in the agreement where the Department of Culture Affairs commissioned architect Liu Kuochang to draw Blueprint, what needs to be considered is whether the Department of Culture Affairs and the building owner hold any right to use the wall and bear any responsibility for maintaining the incorporated paintings; and last but not least, we have to look at the moral rights invested in the creator, architect Liu Kuochang.

  1. Rainbow Village in Taichung

In this case of washing out the paintings on the walls in Rainbow Village, we need to identify who is the artistic work copyright holder. Since the artist Huang Yongfu made such paintings, there should be no doubt that he owns the copyright in his artistic work.

Rainbow Village in Taichung. (© Taichung City Government)

Despite a couple of lawsuits that emerged from the dispute over this copyright ownership, there is one final binding judgement that confirmed that Huang Yongfu had transferred the copyright in his artistic work to his brother, Huang Konghui. “The Appellee (Huang Konghui) and the third party (Huang Yongfu) had entered into a Copyright Assignment Agreement on May 16, 2010. Thus, the third party (Huang Yongfu) had transferred the Appellee (Huang Konghui) economic rights under the Copyright Act and all other rights in and to the artistic work, regardless of completion or not. In other words, the Appellee had obtained the economic rights in the subject matter artwork…”(Taiwan Intellectual Property Court Civil Judgement 107 Minzhu-Tzu 3). But one thing never changes: it is Huang Yongfu who created the colorful paintings and holds the moral rights in the artwork.

Rainbow Creative contested that they were already repainting most of the colorful paintings by “Rainbow Grandpa” Huang Yongfu when the Taichung City Government commissioned them to be the caretaker of Rainbow Village in the beginning. If that was the case, with the original work’s copyright holder’s consent, Rainbow Creative’s repainting could be considered the work’s reproduction and adaptation, and according to Article 6 of Copyright Act, the adaptor (Rainbow Creative) enjoys the copyright in the derivative work from the adaptation.

Supposing that Rainbow Creative enjoyed such copyrights in derivative works from their repainting, were they allowed to erase and modify the paintings? Should they be liable for such destructing action? Is there any legal foundation to support the Taichung City Government in finding the company liable for criminal damage to property under Taiwan’s Criminal Code?

Criminal damage to property normally consists of three types of action against another’s property – abandoning and destroying, damaging, and rendering useless. The offenders are guilty of criminal damage to property whenever their actions qualify any of the three types.

In judicial practice, to secure a conviction for criminal damage to property, one of the elements is the partial or total loss of the value of the damaged property. We can see how the judge explained in the case of Taiwan Shilin District Court Criminal Judgement 86 Yi-Tzu 2698: “For the purpose of the offense of damage to property under Criminal Code, “abandoning and destroying” means destructing or throwing away such property and causing the property’s value to be completely lost; “damaging” means damaging the property to the extent that its value is lost completely or partially; “rendering useless” means, without damaging the property, making the property lose its value by other means rather than abandoning and destroying or damaging.” [8].

Rainbow Creative is accused by Taichung authority by washing out the murals in Rainbow Village. (© Taichung City Government)

In the case of Rainbow Village, as Rainbow Creative only repainted the wall, and the value of wall is unaffected partly or wholly because the wall still serves its purpose of providing security and defining the boundary. The person responsible for Rainbow Creative explained that such action was to voice their discontent with Taichung City Government’s notification to vacate the property. It can thus be said that the offender seems to lack intent to commit damage to the wall.

So whether their action qualifies the criminal damage to property charge is still up for discussion. As mentioned above, the wall’s features and aesthetic look should be within the scope of copyright in artistic works and excluded from the element to constitute the crime of property damage. Should the existence of the wall become the purpose of aesthetics owing to Rainbow Village being a tourist attraction site, in the traditional judicial practice, would defacing the wall constitute the crime of property damage based on diminution or loss of the wall’s value? Here comes a new debate.

In any case, even if such an argument can be accepted, we need to weigh in on the fact that such defacing action occurred during Rainbow Village’s closed period for maintenance, and since Taichung City Government had vacated the premise, shutting down the area and clearing all exhibition at that time, no loss or diminution in value could be assessed. In addition, if it is true that Rainbow Creative is the derivative copyright holder of the wall paintings, treatment of the artistic works should be at the company’s disposal and does not involve any damage to governmental property’s aesthetic look.

Meanwhile, based on Article 811 of Civil Code,”When a personal property becomes an important component part of a real property through attaching, the owner of the real property acquires the ownership of such personal property,” Taichung City Government asserts that the paints Huang Yongfu used on the wall during his creation had become an important component part of the wall, and “attaching the paint on the wall” had resulted in the ownership of that layer of paint being transferred to Taichung City Government.

But when we delve into this argument, it is doubtful whether paint can become “an important component part of the wall” – does the paint provide shelter and security like the wall serves its purpose? In any case, even though Taichung City Government had obtained ownership of such paint, under the Criminal Code, the elements of criminal damage to the property are still not met. According to the doctrine of “no penalty without a law,” more discretion has to be exercised carefully to decide whether Rainbow Creative’s employees should be charged with criminal damage to the property based on their whitewashing action.

There are records in domestic and foreign art history that famous artwork was deliberately painted over or vandalized by the artist himself or a third party, but the original piece was successfully recreated by diluting its covered paint or using other resurrecting techniques, and in that case, such artwork would not be deemed “damaged or destroyed.”

Last, we are concerned about whether Rainbow Creative infringed Huang Yongfu’s moral rights in his artworks. As set out in Article 17 of Copyright Act, “The author has the right to prohibit others from distorting, mutilating, modifying, or otherwise changing the content, form, or name of the work, thereby damaging the author’s reputation.” Without the originator Huang Yongfu’s consent, Rainbow Creative’s action, including defacing his paintings on the wall, altering the original content and damaging his reputation, has led to the liability of breach of Huang Yongfu’s moral right of integrity.

Conclusion

To respect the artists’ freedom of creation and intangible ownership, Copyright laws grant them protection of “moral rights.” It is the creators’ call if they want to and how to release their work, as well as if they require attribution and execute objection to any unwanted modification in their works.

Creators talk to the world through their dedicated artworks. In the course of publicizing their artworks, how do the authors/ licensors meet the requirements of users/ licensees to the extent permitted by law while retaining (rather than assigning or waiving) moral rights in a way matching the needs of tech mediums integration? It will require art professionals to comprehend IP knowledge thoroughly and realize the outcome in practice through communication and negotiation. By doing so, art professionals can embed such respect and trust into the parties’ relationships, practically implement the agreement, safeguard authorship and avoid the dilemma of infringement.


Footnotes

  1. “Party B’s incident” is the result of an outburst of anger by the broadcast music host, Ma Shifang, who discontinued the cooperation with Alian radio station by refusing to tender the contract, and revealed the long-existing unfair treatment imposed on Party B. The incident’s background is that Alian radio station had decided to change the renewal terms for all programs in the next year (2021) that all the renewals will be in the form of tender along with the procurement condition: “Party B (Radio Host) shall assign all the economic rights in the works made for the performance of Party B’s duties under the Agreement; Party B shall waive all the moral rights in the said work.” This incident not only drew lawmakers’ attention but also had the Minister of Culture reach out to support creators in owning their copyrights. Further detail is available in this article, “No Giving Up on Copyrights in Lend-Me-Your-Ears, Ma Shifang Says Goodbye to Radio Station – And Let’s Let the Law Handle It,” 26 November 2022. The author had assisted the novelist in drafting the Option Agreement, where he expressly requested the screenwriter shall not add any main roles to the original novel the screenplay is based on, and the original main role’s names as well as the murder site cannot be changed.
  2. The author had assisted the novelist in drafting the Option Agreement, where he expressly requested the screenwriter shall not add any main roles to the original novel the screenplay is based on, and the original main role’s names as well as the murder site cannot be changed.
  3. Hong Wen, “A Tardy Explanation! Vendor Got Slashed for Missing Key 9-Minute in ‘The Furthest End Awaits,” ET today, 12 May 2017.
  4. Railway Bureau’s website; Ministry of Culture’s Taiwan Public Art website; What a Waste! Dismantling the Artwork at the Value of NT$ 1,386,000, Liberty Times, 5 October, 2014. Further reading: Protection of Moral Rights – See the Example of the Metal Pop-up Artwork “Desires Flying in the Air, Lan & Law, 1 September 2019.
  5. Graffiti Wall Became a Landmark and Got Sold High”, 29 January 2019.
  6. Castillo v. G&M Realty L.P., No. 18-498 (2d Cir. 2020)
  7. “Seeing His Lifetime Work Destroyed, Rainbow Grandpa Calling Wei Piren Evil! Official Pleading Filed by the City”, 31 July 2022.
  8. Cases that have been illustrated for this concept also include Taiwan Supreme Court Criminal Judgement 27 Tai-Fei-Tzu 34, “Under Article 354 of Criminal Code, one of the elements to secure a conviction for criminal damage to property is the partial or total loss of the value of the damaged property. In this case, where the defendant sneaked into the pigsty to poison the pig with rat poison, the pig still survived due to the veterinarian’s timely treatment. Since the value of the pig was not lost partially or totally, and under Criminal Code, there are no criminal penalties for failure to damage to property, no criminal charge should be brought against the defendant.

中文版本

黃秀蘭(Huang Shiu-Lan)( 8篇 )

翰廷法律事務所主持律師,文創產業法律實務經驗豐富,擔任國家影視聽中心、創意設計/音樂/編劇/影像製作公司、唱片集團、知名導演長年法律顧問及文化部影視產業專業顧問。任教於國立臺北藝術大學及國立臺南藝術大學,講授【智慧財產權與合約談判】課程,出版《如何面對合約》系列法律著作,演講教學寫作不輟。

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