The Honour of the Dead – the Moral Right of Integrity Post-Mortem
| Author | Jani McCutcheon |
| DOI | 10.22145/flr.42.3.3 |
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Subject Matter | Article |
THE HONOUR OF THE DEAD — THE MORAL RIGHT OF
INTEGRITY POST-MORTEM
Jani McCutcheon*
ABSTRACT
Can the honour of the dead be prejudiced? There is much philosophical debate about
whether the dead can, or should, enjoy legal rights. A ustralia, like many jurisdictions,
has apparently bypassed that debate and confers post-mortem moral rights on authors,
which endure for at least 70 years af ter an author’s death. The Australian moral right of
integrity protects authors from certain conduct in relation to their copyright works,
which is prejudicial to their honour or reputation. This deliberate conferral of a
posthumous right ostensibly acknowledges that a deceased author’s honour can be
harmed. This article examines questions surrounding the apparent conundrum of
posthumous prejudice to an author’s honour. How can prejudice to the honour of the
dead be established in the absence of the author, particularly if honour is interpreted
subjectively? Do insuperable evidentiary hurdles render the posthumous honour limb
of the moral right of integrity illusory? The article concentrates on Australian law, but
engages in relevant comparative treatments, particularly with French, Canadian and
United Kingdom law. Judicial consideration of moral rights under the common law is
scant, particularly in Australia, and rarer still in a post-mortem context. However, the
issues explored in the article are important, will inevitably arise for consideration and
merit a comprehensive examination.
I INTRODUCTION
‘Both good and evil are thought to happen to a dead person …
Take, for example, honours and dishonours’.1
Aristotle recognises that, in general terms, the dead can be dishonoured. Millennia later,
it seems the hip -hop group, the Beastie Boys, agree. In December 2013, Goldie Blox, a
gender-jamming start up toy manufacturer intent on offering girls more toy choices
outside the ‘pink aisle’2 released a mischievous, tongue-in-cheek promotional video.
The advertisement subverted the Beastie Boys’ 1986 song ‘Girls’3 with clever
* Associate Professor, Law School, University of Western Australia.
1 Roger Crisp (ed), Aristotle: Nicomachian Ethics (Cambridge University Press, 2000) 16–7, cited
in Kirsten Rabe Smolensky, ‘Rights of the Dead’ (2009) 37 Hoftsra Law Review 763, 770.
2 Goldie Blox, About Goldie Blox, <http://www.goldieblox.com/pages/about>.
3 The pertinent lyrics are: ‘Girls — to do the dishes; Girls — to clean up my room; Girls — to
do the laundry’.
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replacement lyrics.4 The video soon went viral, receiving more than 8 million hits on
YouTube.5 It showed three girls eschewing the pink fluff on the TV and building an
impressive, complicated ‘Rube Goldberg’ machine out of everyday items. A copyright
stand-off ensued. Was the video a fair use parody, or copyright infringement? Goldie
Blox sought a declaration that its use was fair.6 The Beastie Boys professed admiration
for the Goldie Blox message, 7 yet pointed out their consistent resistance to the use of
their music in advertising, particularly by deceased group member Adam Yau ch, whose
will clarified that he did not want his music used in advertising. Goldie Blox removed
the song from its advertisement, and offered the following explanation in a n open letter
to the Beastie Boys:
We want you to know that when we posted the video, we were completely unaware that
the late, great Adam Yauch had requested in his will that the Beastie Boys songs never be
used in advertising. Although we believe our parody video falls under fair use, we would
like to respect his wishes and yours.8
Thus from a copyright dispute came a moral rights resolution. It was (at least
ostensibly)9 respect for a dead man’s desire to protect the integrity of his music that
motivated the capitulation, an ironic position given the lack of moral rights protection
for musical or literary works in the United States.10
The example highlights the capacity for the moral rights of the dead to influence the
conduct of the living. The issue will arise frequently, and is important, given that in most
cases, Australian moral rights endure for at least 70 years after the author’s death.11 Thus
in most cases, moral rights are likely to be ‘enjoyed’ more in death than in life.
4 Including: ‘Girls, you think you know what we want, Girls! Just like the 50s its girls;
Girls build a spaceship
Girls code the new app
Girls that grow up knowing
That they can engineer that’. The original video can still be seen at Katy Waldman, This
Awesome Ad, Set to the Beastie Boys, Is How to Get Girls to Become Engineers (19 November
2013) Slate
<www.slate.com/blogs/xx_factor/2013/11/19/goldieblox_commercial_rewrites_the_beas
tie_boys_urges_young_girls_to_pursue.html>.
5 Victoria Slind-Flor, Goldie Blox Takes Down Parody Video, Will Dismiss Copyright Case (2
December 2013) Bloomberg <http://www.bloomberg.com/news/2013-12-02/fujitsu-
ecosphere-goldieblox-intellectual-property.html>.
6 Goldieblox Inc v Island Def Jam Music Group Case 3:13-cv-05428 (filed 21 November 2013)
<http://www.scribd.com/doc/186402972/Beastie>.
7 Dave Itzkoff, Beastie Boys Fight Online Video Parody of “Girls” (25 November 2013) New York
Times <http://artsbeat.blogs.nytimes.com/2013/11/25/the-beastie-boys-fight-online-
video-parody-of-girls/?smid=tw-share&_r=2>.
8 See Goldie Blox, Our Letter to the Beastie Boys (27 November 2013)
<http://blog.goldieblox.com/2013/11/our-letter-to-the-beastie-boys/>.
9 No doubt the fact that Goldie Blox had already received incalculably valuable free publicity,
and the legal uncertainty of any fair use contest, were serious factors influencing the
capitulation.
10 The only moral rights conferred in the United States are those in respect of visual art. See
Visual Artists Rights Act of 1990, 17 USC § 106A (2006 & Supp 5).
11 Copyright Act 1968 (Cth) (‘the Act’) s 195AM(2). The exceptions are an author's right of
integrity in respect of a film (Copyright Act 1968 (Cth) s 195AM(1)) and performer’s right of
integrity in respect of a recorded performance (Copyright Act 1968 (Cth) s 195AM(3)), which
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The unique nature of moral rights as personal rights intimately connected to the
personality of an author makes their post-mortem applicatio n challenging. Numerous
legal, practical and policy questions raised by the peculiar character of moral rights
affect authors, their legal personal representatives (‘LPRs’), users of copyright works,
legal advisors, and the judiciary. Those issues, particularly as exacerbated by the
considerable temporal reach of post -mortem moral rights into the distant future, remain
largely unexplored in common law jurisprudence, are barely addressed under
Australian law, and demand closer examinat ion.
This article concentrates on post-mortem is sues relating to the exercise of the moral
right of integrity,12 particularly as it protects posthumous honour. Many unresolved
issues concerning this moral right apply to both living and dead authors, such as the
meaning and function of ‘honour’, and the influence of the author’s subjective responses
to the impugned act. However, some issues, particularly evidentiary issues, are
intensified post-mortem, and these are explored in the article. Those questions include
whether prejudice to authorial honour ca n occur after the author’s death, and how it can
be evinced. Do the problems of post-mortem protection mean that deceased authors are
effectively discriminated against by reason of their death? The principles developed by
future courts will shape the responses to the se and other questions. They will illuminate
the extent to which deceased authors can inhibit conduct in relation to their wor ks many
decades after their death.
The article discusses the particular difficulty of establishing subjective harm in the
absence of the subject. While the post-mortem protection of honour is problematic, a
flexible evidentiary approach is necessary to fulfil Parliament’s objective in conferring
post-mortem moral rights whi ch constrain prejudice to honour. A number of evidentiary
models are suggested for establishing posthumous harm to honour, and Australian,
French, Canadian, and United Kingdom case law is m ined for guidance and illustration.
Ultimately, a model which elevates the author’s work i tself to the status of chief witness
is advocated as the most flexible, universally applicable model. The article then
advocates and considers a number of possible objective controls to amel iorate the risk of
a deceased author’s subjective honour resulting in overreach from the grave.
II A BRIEF OUTLINE OF MORAL RIGHTS AND REMEDIES
A The rights
In Australia, authors enjoy three moral rights in respect of their literary, dramatic,
musical, and artistic works, films13 and performances.14 After death, the author's LPR
may exercise the moral rights (except the right of inte grity in respect of films).15
rights cease on the author/performer’s death. All further references to sections number are
references to the Act unless otherwise stated.
12 The numerous issues that arise in respect of the author’s LPR are explored in a separate
forthcoming article by the author.
13 In respect of films, the author is defined as the principal director, the principal producer and
the principal screenwriter. Films (ordinarily Part IV subject matter) are defined as ‘works’
for the purposes of Part IX of the Copyright Act 1968 (Cth).
14 With regard to live performances and recorded live performances so far as the performance
consists of sounds, see Copyright Act 1968 (Cth) ss 189, 248A.
15 Copyright Act 1968 (Cth) s 195AN(1).
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