Copyright’s Missing Personality

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I. Introduction

Say you paint a masterpiece—or maybe something less grand. Should you be able to use the law to prevent others from modifying that work, perhaps replacing your name with theirs, even after they purchase it? What about a book or sculpture? Many scholars think the answer to these questions is, generally, yes. They argue that copyright should provide authors with special noneconomic legal rights—so-called “moral rights”^[1]—to prevent others from modifying an author’s work (the integrity right) or attributing it to someone else (the attribution right) without the author’s personal authorization.^[2] The international community seems to agree, with most countries codifying some form of moral rights.^[3]

It all sounds intuitive. But it isn’t obvious why such rights should exist. Nearly all scholars who support them will, if pressed, find themselves relying on a seemingly simple word: personality.^[4] Most of these scholars, whom I call personality theorists, typically make some version of the following four-step argument for moral rights. Step one asserts the existence of a thing called personality that authors possess or embody.^[5] Step two then argues that authors invest all or part of their personality in a work when they create it. This, in step three, is said to generate a special, unbreakable bond or relation between the author and her work that deserves protection. Step four is to argue that moral rights protect the author’s personality by protecting this relation.^[6]

Personality theorists almost universally share this intuitive thought. And what has been described as “startling . . . uniformity” in the scholarship advocating for moral rights is not just one branch of personality theorists^[7]—it runs all the way to the roots of the rights’ earliest proponents. Perhaps this is unsurprising.^[8] If scholars all hang around the same theoretical terrain, they are sure to draw concepts from the same philosophical well.

What is surprising, however, is that most moral rights scholars have not sufficiently explained the fundamental idea that animates their arguments. Despite widespread agreement that moral rights are based on the author-work relation generated by the investment of personality, proponents of moral rights have at least two theoretical problems. First, they struggle to define the concept of personality. Second, they generally ignore the substance of the author-work relation that personality is thought to generate (when the author invests it in her work).^[9] Because the concept of personality underwrites the author-work relationship, the first difficulty can in part explain the second.

Skeptics of moral rights have noticed the general problems with the argument, but at times have glossed over what appear to be important theoretical defects. Professor William Fisher, for example, has described “personhood” theories of intellectual property as “too abstract and thin.”^[10] And Amy Adler’s biting critique, which “attacks the very foundations of the law,” is that moral rights are self-defeating because they inhibit the creation of art they seek to protect.^[11] Karen Gover, meanwhile, has suggested that personality theorists are merely “emotivist[s]” who wish to protect things they feel strongly about.^[12] Still, a variety of other scholars have pointed out the problem with centering timeless rights on contingent concepts (author and work), which developed not through mirroring reality but rather through a confluence of social, legal, and technological factors.^[13] Moral rights, in other words, employ conceptions of the author and the work that may be inaccurate, flawed, or, at the very least, contingent.^[14]

That is not to say the deeper problem with personality and its purported ability to create an author-work relation has gone unnoticed. Moral rights scholars themselves have conceded that personality is “a concept . . . as difficult of satisfactory definition as is the concept of God or Truth or Evil.”^[15] And critics like Adam Beyer and Charles Beitz have written that it is “not obvious”^[16] what this “vague and mysterious link”^[17] between author and work “amounts to.”^[18] While these criticisms are important, none has focused exclusively on identifying and explicating these shortcomings of moral rights scholars in the personality tradition.

The goal of this Article is twofold. First, it shows that scholars, dating all the way back to the earliest moral rights theorists to the present, have not adequately grappled with each step of their own argument. Second, this Article attempts to identify a basis for moral rights protection outside the personality tradition.

To achieve the first goal, this Article argues that personality theorists have not in step one adequately specified what personality is, in step two how it could be invested in a work, and in step three in what the resulting author-work relation could consist. Nor have they specified why, even if their assertions are true, authors or this relation deserve special legal protection. These omissions are significant. Moral rights without either personality or a special author-work relation to protect must look for some other relation or interest to justify them.

While there may be one, personality theory, as it exists today, seems unlikely to supply it. The reason is because the author-work relation derives from the author’s investment of her personality in the work—something that is not specified with any meaningful detail. In short, the Article disassembles the central plank—the author-work relation—personality theorists have used to build their legal edifice.

To put things more systematically, personality theorists generally make the following claims, where A is the author, p is personality, w is work, and A-w is the author-work relation:

1. A contains p.

2. A invests p into w by creating it.

3. Investing p into w creates A-w.

4. A-w generates authorial interests moral rights protect.

This Article argues against claims (1) and (4). It contends that the principal problem with claim (1) is that it is difficult to say what p is and, therefore, how A could contain p and, if so, in what way.^[19] It then argues that it is not clear why, even accepting claims (1)–(3), claim (4) ought to be true.

The second goal—establishing a non-personality-based justification—is less theoretical and more practical. Rather than expound some grand theory, however, it tries to ascertain the relevant interests an author may have in her person by examining how civil laws may already protect some of them. It argues that these are largely reputational interests. By highlighting the differences between moral rights and current legal rights that protect personal interests—like intentional torts, defamation, and trademark—it argues that a legal regime designed to protect the reputational interests of authors faces several significant challenges.

The bulk of this Article proceeds by canvasing and deconstructing arguments rather than making them outright. Part II explains how the rules underlying moral rights developed through a hodgepodge of court decisions. It also briefly explains the theoretical frameworks of two philosophers who most influenced moral rights theorists: Immanuel Kant and Georg W.F. Hegel.

Part III then explains personality and its central place in early moral rights theory. It argues that although early theorists had reasons for employing the concept of personality, they did little to explain why it entailed special authors’ rights.^[20] The problem was twofold. First, the concept of personality itself seemed quite general—and it took inspiration from philosophical theories that were concerned with much different problems than authors’ rights. Second, even assuming the concept itself was coherently defined, the theorists did not show why it ought to give authors special rights. That is, even if the creative work somehow embodied the author’s personality, it was not clear why this generated a special relation with the work—or, if it did, why that special relation ought to be protected over other interests.

Part IV follows the trajectory of moral rights theory from its early proponents to its more modern ones. It finds substantially the same problems among the more modern theorists, though two—Justin Hughes and Neil Netanel—do more to argue for moral rights personality theory than nearly any other scholar, early or modern. Yet, by examining their theories, this Article shows that even their approaches do not adequately explain personality or how or why its investment in a work should generate special rights that trump others’ interests.

Part V moves beyond personality and examines whether existing law might shed light on either the interests moral rights might protect or the manner in which it might protect them. Comparing existing civil law protections of the person to moral rights protections, it argues that reputational interests best capture what moral rights protect. But doing so requires confronting several practical and theoretical challenges. To resolve them, this Article suggests we practice an old legal habit: transparently weighing and balancing the interests of the author, others, and the public.

II. Moral Rights, Personality, and Philosophy

Because the concept of personality plays a central role in the discourse of early and contemporary moral rights advocates, Section A briefly outlines the historical development of moral rights and its attachment to personality theory. Section B then highlights the philosophical ideas that inspired early moral rights theorists.

A. Moral Rights: Law and Personality

As a body of legal rules, moral rights were not handed down from a legislature or towering philosophical figure. What eventually became “moral rights” arose from a combination of legislative enactments and uncoordinated judicial decisions in the eighteenth and nineteenth centuries.^[21] In France^[22] and some German states, for example, lawyers and judges exploited gaps in the civil code to argue for default, moral rights–like terms in publishing contracts. While courts in France developed decisional rules through a “patchwork” of case law,^[23] in countries like Prussia and Austria the legislature stitched together laws for the courts to hem.^[24]

The diversity and prevalence of these rules across countries drove legal scholars to unify and explain them. In the late-eighteenth and early-nineteenth centuries, initial efforts by theorists to explain these rules resorted to the language of either property or contract.^[25] But as more nations began adopting similar laws, the theoretical gaze shifted away from traditional economic conceptions to more humanistic ones.

Personality, as a substantive concept, held great promise for theorists.^[26] For one thing, the concept of a right or rights of personality represented a distinct reaction to legal theories that “conceived [the individual] . . . as a mere peg to which were duly attached economic rights and duties, the sole objects worthy of legal attention.”^[27] Law’s newfound attention to “human needs . . . and . . . feelings”^[28] required theories for new types of rights that would protect and promote them—a task for which personality seemed engineered. For another, the term “personality” was used expressly by eminent philosophers like Immanuel Kant and Georg W.F. Hegel.^[29] These philosophers provided both a formal structure and an authoritative source from which to build the personality theory of moral rights.

B. Hegel and Kant

Kant and Hegel both made a distinction that would become important to moral rights theories. They noticed that they could divide relations into “subject” and “object”: the person was the subject, the actor; everything external to the person was the object.^[30] The person, qua person, had certain basic and inalienable rights of personality. Those things external to the person, though, were not aspects of inalienable personality. As a result, the individual did not hold special inalienable rights in relation to them.^[31]

The concept of personality—or perhaps personality theories—that linked Kant and Hegel did so imperfectly.^[32] Hegel’s philosophical project was grandiose—a three-stage process of development of (or the conditions required for) the individual’s achievement of absolute freedom,^[33] of self-understanding:^[34] abstract right, morality, and ethics.^[35] It is in the first stage of abstract right that Hegel introduces the notion of property rights. In this stage, the person exists as an abstraction, a mere ego separate and apart from one’s specific desires, inclinations, etc. This is what Hegel meant by “personality,” which is the subject’s total consciousness of the existence of himself as an abstract ego without limits or borders.^[36] Rather than something like “character,” personality is “the abstract will consciously self-contained.”^[37] Personality was so fundamental to freedom that it was inalienable.

To give content to this abstraction—to actualize the will into the world—one needs to stake out some part of the external world as hers and distinguish itself from others. The acquisition of property (by social convention^[38]) is a basic method of doing this. Another is contract. Property and contract rights aid in the individual’s freedom by facilitating others’ recognition of the individual; using these instruments, the individual “subjects herself to legal duties and learns to recognize other people as bearers of legal rights.”^[39] Legal rights, then, aided in developing personhood, realizing oneself in the external world. Property and contract are ways of mediating individuals’ relations with others. On Hegel’s view, a person holds property by occupying it with her will—in the form of possession, marking, or use.^[40] On one view, it is hers by virtue of it holding the embodiment of her will, her personality.^[41] Property, though, has an important attribute: it existed only when it was held external to the person.

Like Hegel, Kant also drew on the concept of personality. Broadly speaking, Kant’s moral philosophy focused on the exercise of autonomy by a moral agent, which included not just individuals but also nation-states.^[42] For example, he describes “Moral Personality” as something roughly like an agent’s freedom to obey moral law.^[43] However, personality as a concept also seemed to refer to the “supersensible” character of human beings as moral agents.^[44] Personality—the invisible self—was to be distinguished both from the tangible thing that made us human (our body) and the specific instance of our being (as a person). And our moral personality was to be contrasted with our mere awareness of our own existence.^[45] Kant’s version of the personality was, in some sense, similar to Hegel’s, in that it provided the contrast agent to our empirical world—the mechanism by which we understood that the moral law exists for us and in virtue of us.^[46]

Unlike Hegel, however, Kant explicitly discussed authors’ rights in his writing.^[47] One problem for scholars seeking to leverage this work was its focus on the author’s right to speak within the context of a particular social arrangement: publishing. Kant posits that the author has inalienable rights to ensure his work is presented to the public in his own name—and this right imposed corollary duties on publishers to communicate in certain ways.^[48] Because the publisher is authorized to speak to the public for the author, it is under a dual obligation, and both arise from the author’s decision to speak to the public. Indeed, there were, according to Kant, cases in which the public could demand the work, or corrected versions of it, from the publisher.^[49] Kant’s work also limited these rights, but the boundaries are less illustrative than the sketch that was drawn outside them—that is, what scholars took from Kant’s other philosophical writings (with its focus on agency, autonomy, and hence personality) and transplanted it into the realm of authors’ rights.^[50]

While Kant’s and Hegel’s view have distinctive elements, they share important features. Personality, for both, was an abstraction—something by which individuals recognized themselves (and others) as moral agents. The specifics on how this happened for Kant and Hegel are different, but they both stand in opposition to a more narrow, fundamentally social conception of the self.^[51] Personality, for both Hegel and Kant, was not, at least not at first or only, the thing that made a person that person. It was, instead, the thing that made that person a person (a moral agent) worthy of respect or capable of recognition.

III. Early Moral Rights Theorists

This part examines some of the writings of moral rights scholars from the late-nineteenth and early-twentieth centuries. These writings illustrate the difficulties of the central claim made by many early moral rights scholars: that the author has a special relation with the work—a work embodying her personality—by virtue of creating it.

This claim, of course, was made necessary only because early theorists sought to develop new rights—rights different in kind from property. To justify their position, early moral rights scholars tended to rely on either Hegel or Kant. Those who followed Hegel’s use of property, called “dualists,” separated persons from things for economic purposes but not for noneconomic ones.^[52] Kantians, on the other hand, were “monists” because these two interests were both complementary and inseparable.^[53] For both monists and dualists, however, early theorists spent time trying to explain what personality rights are and how they are different from property rights.^[54]

While this theoretical difference between them has practical significance (e.g., right length, scope, etc.), it is less clear that it matters to the underlying philosophical thrust of personality theory. A more fruitful way to analyze the theorists—one present across early and modern moral rights scholars—is by method. Some theorists, typically German, worked from general theory to render specific rights while other scholars, typically French, worked from specific rules to general rights.^[55] Section A explores the former “deductivists” who attempted to divine specific legal rules from general metaphysical principles: German Josef Kohler^[56] and Karl Gareis.^[57] Section B explores the latter “inductivists” who sought metaphysical unity from the gurgling legal morass: Frenchman M. André Morillot^[58] and Swiss jurist Johann Kaspar Bluntschli.^[59]

It must be kept in mind, however, that divisions like these are flexible rather than firm. And they are most useful as a compass rather than a map—to develop an orientation one can use to chart a course through early moral rights theory. Recall that the northernmost point in moral rights theory was located beyond mere economic interests.^[60] Thus, some of the first moral rights^[61] thinkers,^[62] such as Kohler, Gareis, Johann Kaspar Bluntschli, M. André Morillot, and Otto Von Gierke, grounded their theories on the rights of personality.^[63] While the direction of this compass seems always to point toward personality, navigation nevertheless is increasingly difficult because the location of the final destination is unknown. The discussion below, though organized by method, helps to see why charting a course by relying on this navigational instrument is often difficult.

A. Early Deductivists

This section examines the philosophies of two deductivists, Josef Kohler (1849–1919)^[64] and Karl Gareis (1844–1923).^[65]

1. Josef Kohler

Kohler was not just a moral rights theorist but a well-regarded jurisprude and Hegelian devotee. Perhaps this makes it unsurprising that he marked out a general theory of personality and found within it authors’ rights. And these “[r]ights in one’s own person, or rights of personality,” were not some afterthought that buttressed moral rights; they were fundamental and “must be the starting point of every legal system.”^[66]

For Kohler, the legal right was consistent with Hegelian conceptions of recognition as an individual human being, though by no means did it follow from it. “[T]he right of personality,” Kohler wrote, is “the right for every man to be recognised as a personality of full value, morally and spiritually, [and] is expressed in different ways.”^[67]

Yet while Kohler’s concept of personality was central, it was elusive. Defining personality as the “right to be recognized as a personality,” for example, is empty. Attempts to add content by calling it those “individuating traits of man” is helpful only insofar as it sets men apart from nonhumans. And the “singularity” that renders Terry different from Jerry is something akin to personal identity. But even that reading requires some extrapolation.

Kohler tried to concretize personality by translating it into specific legal rights. The move is a critical one—because until one has connected personality to concrete rights, the rights themselves are simply declarative statements about an abstract concept.

Here, Kohler’s argument is a rather complicated version of the personality-as-investment argument described in Part I. It had two parts. First, he distinguished property rights from rights immaterialgüter, or immaterial rights,^[68] which inhered in economic goods (e.g., books and other works that could be bought and sold for a market price).^[69] Second, he had to make authors’ rights “absolute rights to immaterial goods.”^[70] For this step he needed to distinguish authors’ rights from immaterial (economic) rights more generally.^[71] To do this, he identified “individual rights,” which included “a person’s rights to his or her bodily and spiritual goods.”^[72]

Here, personality—albeit with a Kantian flavor^[73]—did the legwork. Drawing on a version of the concept that had been expounded earlier by Morillot,^[74] Kohler defines personality to include “imaginary representations (imaginäres Bild)” of a work: “an ideal notion, a preliminary mental image of the future work.”^[75] This “floating ideal,” as Kohler termed it, included the author’s feelings, intentions, and intuitions (present and future), and the future structure and content of the work.^[76] Once the representation is formed, the work passes through two further stages. The next stage is the “inner form” (innere Form), which amounts to the “core” that will be present in any translation. The final stage is the “outer form” (äussere Form), which is the physical manifestation of the work.^[77] Because personality exists in the representation, form, and manifestation of the work, the law must protect them all—separate and apart from the economic value of the work.

Kohler’s approach is consistent with the view that the author’s investment of personality makes it hers, but he does not explain what it means for the work to be part of the author. If one takes Kohler to be discussing personality as a form of social identity, the statement makes more sense. The work is so tightly bound up with the author’s social identity that she must have control of it in the same way she has control of her own actions. She has the right to make decisions that shape who she is. When Margaret chooses to become a doctor, for example, she makes a choice that shapes who she and others take her to be. Margaret’s identity expands because of her choice—she now has the knowledge, ability, and skills of a physician—and she holds certain beliefs. I have argued elsewhere that this is one way to understand moral rights—and perhaps it is one way to understand Gareis’ conception of creating a work: it represents a choice to present yourself in a certain way, to construct your identity through a particular kind of social self.^[78]

An expression, however, is more than just a choice or belief. Unlike an idea to which one chooses to adhere, an expression both represents and itself generates and adds content to its author’s identity. When you choose a belief, that belief may add content to your identity, but you did not create the facts upon which that belief is based. If, by contrast, you create a sculpture, you both express your identity and generate the thing that expresses it by creative action: you are the person that created a sculpture, and that sculpture and its content adds to who you are. Creating, then, may be akin to building part of one’s identity, one’s personality. Likewise, one’s intentions, projects, and plans about a work are intermingled with this identity and cannot be ripped loose (directly).

Although this reading is facially plausible, it faces a number of difficulties. Perhaps the most fundamental is this: even if one defines personality to mean social identity and specifies how creation of a work adds to the author’s personality, one still needs to explain why this particular relation deserves protection—as contrasted with others.^[79] For Kohler, this is a problem that remains unresolved.

In short, it is not clear why the “original” authors’ personality interests were superior to property or other interests.^[80] For example, why should authors’ rights—authors’ rights included to prevent others from placing their names on the authors’ work and to prevent the work from being “presented in a changed form”^[81]—trump the rights of others to freely appropriate and use the works in question? Don’t they have interests using and transforming the work? Aren’t they, in many cases, doing the same thing the author claims she did in creating her work—investing their personality in the work? Pointing to authorial personality typically considers one side of the equation: the narrowly defined author; others’ interests are left to the side. Consequently, personality alone cannot supply the clinching rationale.

2. Karl Gareis

Like Kohler, Karl Gareis—one of the first moral rights scholars to develop a “consistent theory” of personality rights—aimed his theorizing at something beyond mere economic rights.^[82] And, also like Kohler, he first needed to distinguish personality rights from economic and other social rights, such as those in property (real rights) and family (claim rights). His solution was to argue that personality had as its legal object the individual and not claims over others or things.^[83]

Although this made rights of personality unique, Gareis found the term used to describe them confusing. By invoking the term personality, the phrase conflated two concepts—personality and capacity—and implied a naturalist origin. To avoid confusion, Gareis proposed instead the term “individual rights.”^[84] One important category of individual rights was the right to use one’s capacities to be recognized and respected as an individual, which entailed “author’s rights: that is, literary and artistic author’s rights.”^[85]

For Gareis, authors’ rights are designed to facilitate individuality and its recognition.^[86] The reasoning—reflecting Hegel’s idealism—is that individual rights secure for each and every individual freedom of volition, to decide for oneself.^[87] This protection is required, not necessarily for Absolute Freedom, but for each individual to “realis[e] his overall life potential [for prosperity and happiness].”^[88] Because each individual is free to make choices that enhance his individuality, he has a right to use “his personal qualities” so long as they do not violate others’ rights. The right is universal and bilateral: not only does each person hold this right, but each person has the obligation to recognize that others have this right. Thus, each person must respect others’ rights to make use of their faculties and attributes. Gareis now has articulated something resembling the German notion of “subjective rights”—based on the philosophy of Kant or Friedrich Carl von Savigny—or the more British sphere of personal liberty (based on the philosophy of J.S. Mill).^[89]

If a person (within these rights) uses their mind to produce something saleable, say a book or a poem, the law recognizes that more than mere alienation could occur: it elevates the “faculties as such” to the protection of law.^[90] And so the law will protect the activity itself and the resulting product. The protection of the “fruits attained through” one’s faculties is recognition of “an achievement of the individual.”^[91] Protection ensures not only that the individual will be recognized for her achievement, but also that she will be able to control herself as embodied in her creation. Other individuals, therefore, must recognize the right of a person to their intellectual creation, and to allow them to use it so long as it does not infringe the rights of others. This also means others must not infringe the individual’s right to use her mind.

Individuality, therefore, grounds the right. Each subject has a right to be recognized as the individual she is—the person with whatever qualities it is that make her her.^[92] Indeed, for Gareis, recognition is the sole goal of individual rights: “juridical subjects demand the recognition of their individuality, recognition of their activity as individuals, and recognition of their control over what is individual about them.”^[93] Authorship is nothing but a “striving for individualization” on these three dimensions.^[94] The law’s role is to facilitate this goal by protecting the individual’s achievement.

Gareis’ theory, like Kohler’s, is abstract and difficult to concretize despite its focus on individuality. Gareis’ theory centers on the person, and what it means for her to flourish qua individual. Indeed, his fundamental postulate is that the “juridical subject[] demand[s]” recognition of her individuality and control over it. Gareis’ three demands might be restated as follows: (1) being recognized as a person (“individuality”); (2) being recognized as a particular person (“activity as individuals”); and (3) having control over some aspects of what make them the particular person they are (“control over what is individual about them”)—presumably to facilitate (1) and (2).^[95]

How might authors’ rights facilitate this? They may help to identify both a person and a particular person by requiring, for example, identification (attribution) of that individual. Part of what makes the individual author that person is the intimate bond she shares with the work. An author’s poem generates legal protection because such protection aids in his recognition as author-the-poet. Given that the poem is now identified with John, control of that poem becomes central.^[96] Attribution of the poem ensures the recognition of author as the individual—and control over the content bolsters this recognition.

Here again, then, we see elements of Hegelian identity as abstract, as well as shades of Kohler’s view of identity as social rather than philosophical. But Gaeris’s theory does not tell us why authors’ rights in particular are required to achieve this recognition, or why this recognition exists in a special case because of some investment of the work. Even if it is true that some aspect of the individual’s social identity depends on the work, it is not obvious why other aspects of the individual’s right to recognition—or others’ rights of recognition—ought not to take precedence over these. Consider, in concluding, Gaeris’s contention that we ought to protect the author’s “faculties as such” by impinging on others’ ability to take actions with respect to one’s work.^[97] Even if we could show some nexus between those traits and the work, and that the creation by a particular individual “caused” the nexus, we still need to know how it is connected. Gareis left this aspect of his theory unexamined.

B. Early Inductivists

Deductivists’ problems in defining and using personality to argue for authors’ rights are not limited by their method. This section shows that inductivists Johann Kaspar Bluntschli (1808–1881) and M. André Morillot (1849–1922) faced similar difficulties.

1. Johann Kaspar Bluntschli

Like both Kohler and Gareis, Bluntschli first tried to distinguish authors’ rights as different and separate from traditional economic rights.^[98] But he did so based on the motivation of the author and the nature of the work; property owners and authors have different motives: whereas the property owner wants to keep property for herself, the author “wants to communicate his work to the public.”^[99]

This difference is at least part of the reason why Bluntschli, crediting Kant, thought the authors’ right (collectively)—compared to property rights —is a “personal right of the author, as the right of the originator.”^[100] What seemed to generate the intensely personal nature of this right, aside from the communicative nature of the work, was Bluntschli’s view that the physical embodiment of the work is “a revelation and expression of [the author’s] personal intellect.”^[101] And this act of creation by investment, Bluntschli posits, establishes a “natural relationship” “[b]etween author and work”—just as God has with his creations.^[102] As such, the author has a natural right that others respect this relationship.^[103] And it is this relationship, and the creation that gives rise to it, that makes authors’ rights “highly personal.”^[104]

Bluntschli does not pursue in earnest the God analogy, perhaps because it has significant limitations.^[105] But, invoking it tells us something about what he thought followed from the author-work relation (that generated personal rights). First, the author is in a position of authority with respect to the work. He has a right to communicate his work “in an ordered manner and [to have] his authorship . . . respected.”^[106] So the author may choose not to publish it, or to prevent another from publishing it against his will. These rights also include their theoretical opposites: the author has the right to publish her work—and reproduce her work—when and how she wants.

At the same time, Bluntschli’s writing recognizes that these rights have limits, and these limits tell us at least two things about the nature of the author’s relationship with her work. First, he did not think the nature of the relationship was unchanging and unbreakable. For example, others have a right to use the work provided their creations contain sufficiently “independent intellectual effort”—quite similar to the language used to describe transformative fair use today.^[107] Additionally, publishing the work, says Bluntschli, changes the nature of this relationship. By deciding to open her work to the public, the author relinquishes part of her right to the interest of the public. He also recognized that the relationship depended in large part upon others.^[108] In discussing duration, for instance, Bluntschli claimed that that right lasts as long the author’s “person is still fresh in people’s memory.”^[109]

Despite its nuances, Bluntschli’s theory—like Kohler’s and Gareis’—took as its foundational premise a special relation between the author and her work, one firmly grounded in the person (if not “personality”). In trying to briefly flesh out that relation, Bluntschli invokes the God-creature analogy, but says little else about it. This leaves the reader in much the same position as the theories of Kohler and Gareis, lacking a developed explanation about the nature of this relationship.

2. M. André Morillot

It may seem odd that Bluntschli and Kohler did not critically examine the key conceptual component of their own claims. But it is not an anomaly. At least one prominent French inductivist, M. André Morillot, did the same thing. Morillot was one of the first French scholars to import German ideas about moral rights into France, which had been a locus for decisions on authors’ rights.^[110] He shared with other theorists a disdain for commingling property rights with authors’ rights.^[111] And his focus on personality was as prominent as any moral rights scholar.

For Morillot, the key to understanding authors’ rights, and his version of personality rights, was to conceptualize a work as “purely intellectual”—by which he meant the creation only as it exists in the author’s brain. Physical expressions of the work were not a “work.” Indeed, any author’s expression would be some imperfect form of the original.^[112] The work is thus not merely an idea in the author’s brain—“it is the author.”^[113]

Morillot’s view of a “work” is similar in some respects to Kohler’s three-stage model of creation. To him, a work was a mental representation of something known only and completely to the author.^[114] The work is a static, finished product rather than a fluid process of creation. In his view, the author who paints a painting of a cathedral, for example, constructs the work entirely in her brain before she paints. When putting paint to canvas, the author merely expresses some imperfect form of her perfectly constructed mental representation of a cathedral.^[115] The author, in other words, creates a finished mental representation of the work in his brain, where it remains forever.

Morillot’s account is not only about creation, but also creativity. For him, the creative process occurs before expression.^[116] And this had theoretical implications.^[117] Because the work is the author—her personality—she has “full moral sovereignty over [her] work” before and after publication.^[118] The work exists in the author’s thoughts or consciousness—and so the author has (or ought to have) as much control over the work as she has over her thoughts. The author, therefore, is the “absolute master of [her] work.”^[119] Because the absolute dominion over a work arises without the aid of law, the right is a natural one. The work of an artist exists in the author’s thoughts and consciousness; only she has access to it.

This much is also true of the work after it is expressed. Once the author expresses the work, however, a change occurs. The work-as-expression no longer is the person; it becomes—similar to Kohler’s and Bluntschli’s views^[120]—an “extension of his person.”^[121] Now, exposed to the world, it is “vulnerable to . . . attacks.”^[122] But the expression of a work does not break or even diminish whatever bond exists between the work (in its pure form) and the author.^[123] The author, in other words, does not become less of a person. Rather, she extends her person, expanding its scope and retaining this bond,^[124] a view shared by others such as theorist Otto von Gierke.^[125] Yet the work itself remains in the author’s consciousness—always “inviolable.”^[126] It is, now and forever, tied or connected to the author.

What does all this mean? On the one hand, Morillot thought the work was present in the author’s brain (so long as the author was alive). In that sense, it was impossible to separate the work from the author; they were inextricably bound together. The author’s painting of the cathedral is fixed perfectly and permanently in his brain—it cannot be separated from the brain’s substrate. On the other hand, the expressed work is no longer physically part of the author, but it retains a link to that fixed mental representation. The painting of the cathedral is an extension of the representation of the cathedral in the author’s brain: although physically external, the expression (the painting of the cathedral) is an embodiment of something wholly internal (the work of the cathedral). As a result, Morillot views the work as maintaining some aspect of the internal, as part of the author’s personality. Personality, then, must be either (i) the author’s brain states (or something similar) that involve the work; or (ii) the relation in which the author stands to the work. Without evaluating these positions, it’s at least worth noting that if personality is (ii), then the concept of personality has not been explained.

In either case, harms flow when another impairs this relation (i.e., as an extension of her work). Recall that Morillot is an inductivist, which means he starts first with the rights and theorizes them later. For him, there were three separate rights that corresponded to harms that the rights protected against. First, a right to prevent unauthorized publication protected the author’s personal liberty.^[127] Harm to authorial liberty occurs when someone usurps the ability of the author to act (by forcing her to speak). Assume that someone publishes the author’s painting of a cathedral against the author’s will. This, according to Morillot, constitutes “a violent and unfair attack upon the author’s person [personnalité], a genuine infringement of his liberty, [and] a palpable moral injury for which he may demand reparation.”^[128] Unfortunately, Morillot does not specify how this action violates the author’s liberty or what violence it does to “personality.”

One explanation might be that the publisher forces the author to expose part of her work to the public. Such a decision is not the publisher’s to make. The choice must be the author’s. This is because the author’s work is enmeshed with the author’s thought process. And certainly no one can force someone to publish their thoughts. So, it follows, no one can force the author to expose her cathedral because it is part of her work.

Even on this reading, though, it’s not clear whether Morillot thinks this “infringement of liberty” is tantamount to an “attack on personality.” He may have surmised some other kind of harm to personality, though it is hard to see what it might be. On these grounds, Morillot thought that the law should intervene in this case to ensure “the author is respected.”^[129] But “respect to the author” is something different from an “infringement of liberty,” and it may be different still from an “attack on personality.” Given that Morillot does not precisely state the harm the law should protect against, however, it is difficult to know exactly how the law should go about protecting the author from “it.”^[130]

Morillot then states that the second violation of the personality right—“present[ing] the work only in a faulty or inaccurate version”—harms “the author’s person.”^[131] Once again, the idea of the “author’s person” or “personality” are not stated. Although one might read this as to define personality in various ways, Morillot’s failure to do so ultimately undermines his claim that harm occurs when others present a “faulty or inaccurate version” of the author’s work.^[132]

Lastly, Morillot argued that harm occurred when an author’s work was falsely attributed to another. Morillot characterizes the injury here as “robbing the writer or artist of . . . glory.”^[133] Perhaps “glory” relates to “recognition” and Hegel can rescue the statement to save it from being relegated to one about either fraud or reputation. Again, though, Morillot doesn’t say exactly what he means. And he did not explicitly link personality to either fraud or reputation.

One idea is that the work is both part of the individual and something with which they are associated. This latter association arises by virtue of being its “source.”^[134] Usurping one’s “glory” is akin to impersonation. The person who falsely attributes the cathedral painting to herself posits a connection between himself and the work that does not exist. This may dilute the connection between the work and the author, as others come to associate the author’s work with someone else. Thus, the public is defrauded in one sense because they are presented with a false claim about authorship. In another sense, this false representation of source may harm the author’s reputation by diminishing her standing in the community. Each claim rests on separate interests, interests Morillot does not articulate or tie to personality.^[135]

In light of Morillot’s views on creation, it is understandable why he thought these acts “violate the consciousness of the author.”^[136] The expression was still very much attached to the mental representation (the work). Violating the former meant violating part of the latter. Morillot, however, failed to explicitly connect these harms with personality in a meaningful way. The idea of liberty, for example, seems to stand alone as a concept independent of personality. Indeed, liberty in this context seems to follow on Kant’s idea that unauthorized publication of a book is tantamount to forcing the author to speak against her will. Personality, meanwhile, is left undefined—but it purports to form the locus of harm.

Despite all this, the legal rights that protect the author from harm all fall within the category that Morillot baptized as the “moral right”^[137]: a natural right designed to protect the author’s person that springs into existence from the moment of expression.^[138] Thus, the moral right fosters respect for the author’s person by safeguarding her expression—part of her person—from unauthorized publication, false attribution, and faulty or inaccurate presentations of the work (as expressed).

Yet even for Morillot, like for Bluntschli, authors’ rights were not absolute. He goes so far as to recognize reproduction of the work after publication as a natural right of readers (or users). Indeed, reproduction causes the author no harm except in exceptional circumstances (pecuniary harm may occur under modern positive law).^[139] Morillot also recognizes, for example, that “imitation” is essential for art and life to continue, and it therefore cannot offend the author’s moral right. He also, for practical and theoretical reasons, did not view moral rights as perpetual, a characteristic that distinguishes them from property rights.^[140]

Coining a term that would last for over a hundred years is an achievement. Unfortunately, Morillot’s account also faces two problems common to other moral rights scholars. First, he could not define personality in any meaningful way. Second, Morillot’s attempt to connect personality to legal rights did not sufficiently explain how personality is invested or, if it is, why it ought to generate special rights. To his credit, Morillot’s conception of the work did capture why it was in some ways part of the author’s person—but that conception changes dramatically when the author extends the work from her brain into an expression. Here the personality interests, the key component of Morillot’s theory, break down into legal rights that seem to have very little to do with some underlying concept to personality.

C. Lessons from Early Moral Rights Scholars

Each of the early theorists had different methodologies and views on law—inductivist/deductivist, naturalist/positivist, monist/dualist. Yet what linked, or perhaps united them, was a focus on the person, the individual—what each called, in one form or another, personality.^[141] This part has demonstrated, however, that although personality may have been a unifying concept, the concept of personality was hardly unified.^[142]

Each method revealed a slightly different aspect of the problem. Deductivists first attempted to outline the concept of personality, or the author as an individual.^[143] When they discussed specific rights, however, their analysis became more pragmatic. At this stage, authors’ interests are weighed against “(a) other individuals, (b) the organized public, [and] (c) society.”^[144] Perhaps this analytical move is, as David Saunders argues, logically required; it is a function of transitioning from general, abstract notions to particular cases.^[145] Yet moving from the abstract to the specific proved difficult because it was not always clear what we were considering in the abstract or why specific rights ought to follow from investment of personality.

Inductivists, by contrast, tended to start with particular rights and then theorize their metaphysical unity. Here, rights were clear because they were plucked from cases. The problem for scholars like Morillot was generating a coherent theory to unify them. Stig Strömholm has gone so far as to say that, “[i]f ideological aspects are set aside, the energetic affirmations of the inexhaustible character of the ‘general right of the personality’ mean little more than the list of cases which may be decided in favour of a plaintiff claiming a violation.”^[146] Like deductivists, inductivists struggled to articulate the meaning of personality or why it followed that its investment generated a special relation that required legal protection.

Both methods, then, yielded similar problems. First, there was the concept of personality, which was like an element on the periodic table: it could not be defined further than the notion itself.^[147] The concept itself, however, lacked a coherent definition—and so one is left wondering what, exactly, is the most central concept in moral rights theory.

Yet this definitional problem is just one challenge for personality theorists. Another was that even assuming some coherent definition of personality, scholars had to explain how personality can move into a work to create a “relation” between author and work that law must protect through moral rights.

These are challenges, as the next part demonstrates, that modern personality theorists have not adequately addressed.

IV. Modern Personality Theorists

Modern moral rights scholars largely follow in the philosophical and conceptual footsteps of the early thinkers.^[148] Kant and Hegel loom large, and the concept of personality is central. Methodology also tends to divide them in the same way as early scholars—with some working from rights to theory while others work from theory to rights. And both sets of scholars have trouble with the same two central questions as early scholars, though their philosophical dexterity varies considerably. For example, deductivists spend a great deal of time justifying the rights, often pointing to particular interests that could be harmed, but they do not squarely confront the questions of what personality is and how investing it in a work creates a special relation that deserves protection. Most inductivists, on the other hand, are adept at claiming harm and pointing to rights, but are less successful at explaining what personality is or why it matters that it is harmed.^[149]

Section A explores the work of deductivists while Section B examines scholarship of inductivists. Throughout both sections, the Article highlights how these two central questions have not been adequately addressed. But it is important to underscore that the work of deductivists does more to grapple with these two questions than the inductivists. The inductivist work, however, is still important to show how personality, as a concept, still takes a “protean diversity of forms” and has “the formlessness of a protoplasmatic fluid.”^[150]

A. Modern Deductivists

The two most important deductivists are Justin Hughes and Neil Netanel.^[151] This section explores each of their writings. Like the early moral rights scholars before them, Hughes and Netanel argue that personality rights are different from economic rights and that personality makes them so.

1. Justin Hughes

Hughes’s account of personality is Hegelian,^[152] though it draws heavily on Margaret Radin’s interpretation of Hegel in the property context.^[153] Although Hughes’s reading of Hegel is highly contested as a philosophical matter, his argument for moral rights based on it is an important contribution that should be taken seriously.^[154]

Hughes applies Hegel’s philosophy to answer the following question: “what justifies the author in alienating copies of his work while retaining the exclusive right to reproduce further copies of that work?”^[155] His argument follows a familiar structure. First, the individual owns the intellectual product by creating it, which entails investing her personality into the work. Hughes’s first step, then, is to draw on Radin’s intuitive conception of property as part of the self and define personality in the context of created works in similar terms^[156]—as the self moving into the object, or perhaps the object being “caused” by an “individual’s personality.”^[157] This creates a special relationship—and “[t]he relationship between object and creator is where personality is visible.”^[158]

To help us see personality, Hughes shifts to identifying three personality interests: creativity, intentionality, and sourcehood.^[159] Creativity is inherently tied to the concept of personal expression.^[160] When John paints a creative picture, some of what is “creative” is found in the object being John’s expression. The object created—and the creativity that produced it—reflect, to some extent, John’s experiences, though not only his experiences but his personal expression of them.

Whereas creativity is concerned with personal expression, intentionality is concerned with conscious direction; when an individual creates an object, she often intends to convey some message or capture some idea, image, or conception.^[161] Intentionality can bring into the ambit of copyright claims of photographers and journalists, as well as other copyright puzzles.^[162]

Finally, Hughes discusses the personality interest of being “the source of the res”—what I refer to as “sourcehood.”^[163] In this discussion, he harkens back to two Hegelian ideas, both of which Gareis discussed in his work^[164]: the right to be identified and the desire for social recognition.^[165] This sense of personality relies on recognition by others and identification of the person with a thing. In a Radinian fashion, Hughes writes: “in the sourcehood situation there may be expressions which become personal.”^[166] This personality interest sheds light on situations where one has a eureka moment, where the person is the source of information, or where one simply labors (but is not creative and the intentions come from another). But it also poses problems for other cases, like songs that people incorporate into their identity and “claim” or think of as part of themselves.

Hughes’s move to identify personality interests gives us some content to the “thing” moral rights might protect. But this move also presents a problem from the perspective of alienation. If the property in which work is embodied is completely alienated, it is abandoned. This forces the owner to divorce all personality interests from the object. With intellectual products, though, “no recognizable res . . . exists” “independent of our personality.”^[167] Because the creator’s personality is “in” the work, Hughes argues that Hegel “consider[ed] the complete alienation of intellectual property to be wrong—morally analogous to slavery or suicide because it is the surrender of a ‘universal’ aspect of the self.”^[168]

Hughes responds by arguing that the personal connection can and must be maintained even after alienation of a token work. The argument hinges on the nature of the creative expression: precisely because the created object is now external to the person, she can alienate it without alienating her self from that aspect of expression that is unique to her. On this view, transferring copies does not constitute complete alienation if two conditions are met: “[F]irst, the creator of the work must receive public identification, and, second, the work must receive protection against any changes unintended or unapproved by the creator.”^[169] Thus, although Hegel’s theory allows the creator to alienate copies, these two protections prevent her from completely alienating all rights in the work.^[170]

Although Hughes’s argument is careful and more robust than early personality theorists’, he faces the same two problems at each step of the argument. First, his articulation of a Hegelian justification relies heavily on a highly abstract concept that is part of a larger, complicated philosophical system. If Hegel’s system is discarded, it is not clear that the concept of personality does much work—making the claim highly dependent on a convoluted, and somewhat bizarre, philosophical enterprise.^[171]

Even in Hegel’s system, it is not clear that personality has the kind of meaning that Hughes wants to ascribe to it—that is, something specific and personal to the individual. It suffers, in other words, from the same kind of vagueness that plagues early theorists by framing the question as one fundamentally about the self: “[D]oes the object show others an aspect of the creator’s self?”^[172]

But now the argument has brought us to fundamental questions many moral rights scholars in the personality tradition encounter but do not analyze: what is a “self” and how does it go into a work? To suggest, as Hughes does, that the work reflects some personal experience is certainly a plausible conception of creativity, but surely it cannot be what we mean by “self.” Asserting the self as the cause, rather than the thing that infuses the work, does not help to clarify the inquiry.^[173] Instead, it begs the question of whether this produces some significant connection, and what that connection might be.

Second, although Hughes asserts that “personality is visible” in “[t]he relationship between object and creator,” it is still quite difficult to see.^[174] Part of the fuzziness results from a subtle shift in concepts—from “personality” to “personality interests”—which elides describing what personality is or could be. And it also smuggles in the connection generated by the author-work relation by working in reverse. If the interests specify the content, then the content cannot generate the interests that deserve protection without circularity.

Third, even if this problem is avoided, focusing on intentionality and sourcehood as important contributors to personhood interests actually seems to increase, not decrease, the importance of the creativity interest—one that Hughes thinks is overemphasized in the literature.^[175] For example, one can find an antique or a special rock and become its source in a way similar to an inventor. Finding property, however, seems to involve a categorically different act than the one involved in creating copyrighted works.^[176] Likewise, human beings can carry out intentions and purposes with respect to all kinds of property—real and personal—(during and after their life through testamentary instruments) in ways that generate meaning for themselves as individuals. They can remodel their house or cultivate their land or create a shrine of family heirlooms. So, what seems to distinguish personhood interests in intellectual property is creativity. But here we face a different problem: if recognition of one’s personality is so important, then the argument for cabining it through creativity’s limits surely can’t be right.^[177]

2. Neil Netanel

Hughes’s contribution is paralleled in depth only by Neil Netanel’s, though the latter relies on support from Kant rather than Hegel. He claims that “Kant categorized authors’ rights as personality rather than property.”^[178] In grounding authors’ rights in personality, Kant postulated a special connection between the work and its author.^[179] Netanel argues that “[t]he inalienability of the author’s rights in his work is implicit in Kant’s categorization of a literary work as part of the author’s person instead of an external thing.”^[180] Kant’s idea of the work as part of the author herself accords with the views of some early moral rights scholars like Kohler, Bluntschli, and Morillot. And so again we find that a work containing “personality” implies the author has a special connection or stands in a special relation to it.

But this is as far as Netanel takes this point. Unlike Kohler or Morillot, Netanel has no interest in “imaginary representations” (Kohler) or “purely intellectual” conceptions (Morillot) of the work in the author’s mind.^[181] Instead, Netanel points out that, although Kant viewed an author’s rights as “an innate right, inherent in his own person,”^[182] he did not limit rights only to expressions of the author’s personality (nor, for that matter, to the author herself).^[183] Netanel argues that, for Kant, authorial rights were linked to autonomy or self-governance.^[184] Thus, although Netanel—like Hughes and Radin—discusses personality in the context of moral rights (i.e., as expression of the self),^[185] he frames his argument for inalienability restrictions using “continuing author sovereignty.”^[186]

Despite Kant and Hegel’s different conceptions of property as internal (Kant) or external (Hegel), there is some similarity between how Netanel reads Kant and how Hughes reads Hegel. For Netanel, authorial rights are linked to the ability to function as a human being. Hughes makes a similar claim when invoking Hegel’s system of property: property rights—and potentially a special form of authors’ rights—are necessary for individuals’ development and flourishing as human beings.^[187]

This brings them both closer to the ideas of Gareis than any other early moral rights scholar. Underlying both ideas is the conception of the author as specially tied to the work in some way. Yet both have explained authors’ rights functionally—as necessary to the achievement of human functioning or development. The right is not valuable in itself. Nor is the right concerned directly with some metaphysical entity, and the nature or structure of that entity.

The relation between the author and the work is also cast somewhat functionally. For Hughes, it facilitates the development of an individual in the Hegelian scheme, or rests on several interests (personal expression, creativity, and sourcehood). Netanel takes a similar path, explaining authors’ rights as a necessary component of a properly autonomous individual, the sovereign author. Thus, they are both drawn, as was Gareis, to the idea that authorial rights are necessary to “each individual’s realisation of his overall life potential [for prosperity and happiness].”^[188]

Netanel’s focus on autonomy leads him to identify interests served by communication, which is a form of expression and, as such, is necessary for autonomy, identity, and self-realization. Netanel identifies at least four benefits or interests in expression:

Self-consciousness: expression is a projection of the self, and it entails a decision about what image to project to others;

Interaction-Mediation: expression acts as a mediating mechanism with the world—it helps the individual construct a reality and interact with herself and other individuals;

Creative-addition: expression adds something new to the social discourse; and

Self-realization: expression is a means of constructing and understanding the self.^[189]

To fulfill these functions truly, Netanel argues, expression must be “an authentic manifestation of the self.”^[190] By this he means (in a Kantian way) that expression must be “entirely the product of free choice.”^[191] Thus, this “continuing connection” is, rather than any conception of “personality” as such.^[192]

Personality makes an appearance later in Netanel’s argument, when he evaluates four potential justifications for the inalienability of author’s rights: distributive (unequal bargaining position of the author); personhood (forcing commodification of author’s work/personality would diminish personhood); paternalism (protecting the author from diminishing her capacity for self-actualization and self-definition); and communitarian (the protection of community values justifies restrictions on authors).^[193] The personhood and paternalism rationales both turn on the “continuing connection between authors and their work” and authors’ “profound sense that their creations are inextricably related to their person.”^[194] What this “continuing connection” is or why a “profound sense” of inextricability should justify moral rights is not Netanel’s focus. As a result, the nature of this relation and connection based on the author’s self or personality is not explained in detail.

Netanel’s account is an important contribution. But in focusing on Kantian autonomy, rather than personality as such, Netanel neither grounds his theory in personality nor explicates it. Yet like other scholars before him, he at least pays lip service to the personality-based special relation between the author and work as a potential justification for some aspects of authorial rights.^[195] And, just as with other scholars, he does not explain in what this relation could consist.

B. Modern Inductivists

Despite the difference in method, deductivists and inductivists share a common framework to argue for moral rights. Step one identifies the concept of personality as important. Step two asserts that authors invest personality into their work, creating an “intimate bond” with it that deserves protection.^[196] This section shows that inductivists face similar problems as deductivists at each step of the argument. With respect to step one, it demonstrates inductivists have difficulty defining personality with any clarity, frequently trading the concept for other, similarly ill-defined concepts like identity or the self.^[197] Then, with respect to step two, this section explains why attempts to generate rights from an investment of personality are problematic. By focusing on the types of harms against which moral rights are supposed to protect, this Article shows that it is difficult to understand in what the author-work relation consists.

1. Personality as the Self/Identity

Most inductivists describe personality as either a form of “identity” or as a “self.” Under the Investment Theory, then, the author invests her identity or self in a work, which generates a special relation that warrants legal protection.^[198] Yet inductivists have defined the terms “identity” and “self” in several different ways.

Arthur Katz, for example, quotes two separate sources to define identity.^[199] One takes personality to mean something like human identity: “[T]hat which designates a human being as different from an animal: what makes him specifically a man.”^[200] The other views personality as personal identity: “[T]hose individualizing traits of a man which constitute his singularity and differentiate him from all other human beings.”^[201] One might extend this latter concept to another: social identity—what an individual is regarded as in the society where she finds herself.

A slightly different version of personality, which riffs on both personal and social identity, is that of the self. Scholars have described personality as the “[i]nner-self,”^[202] “innermost self,”^[203] “innermost being,”^[204] and “self”.^[205] This idea of personality as the “self” also seems to be a plausible interpretation of others scholars’ statements about personality.^[206] Because we all think we have a self and know what it is, the idea of investing our self into a work is intuitive.

Despite the intuitive appeal of personality-as-self, no inductivist has set out to define the “self,” let alone address the philosophical questions that underlie it (e.g., is there such a thing as a self? If so, what is it? In what does self-experience consist? and so on).^[207] And, therefore, no inductivist has attempted to explain how a self is or could be manifested in a work.^[208] This is a serious problem for moral right theorists. The first step of defining personality is crucial to understanding how it is invested in a work and why, if it is, it creates a relation that deserves protection.

These are significant problems. Without a definition of personality, it is hard to understand how it can be invested into a work. Perhaps it is true, as one scholar has noted in defending the concept of dignity, that the “words we use to identify and describe basic human values are necessarily vague and ill-defined.”^[209] But this seems to elude the problem by describing it as insolvable. Indeed, the fact that our core values could be so ill-defined means we should be careful to ensure that we define them carefully before we rely on them to grant important legal rights.

2. Protecting Personality

Although inductivists lack a workable definition of personality, their method has the benefit of starting with rights and working backwards to interests or theories that justify the rights. That is, their goal is to show that rights protect certain interests, and that these interests give life to the definition of personality. In what follows, this section explains how scholars have used harms, interests, and values to define personality generally and the need for various moral rights specifically.

What are these interests? Some try to find them by taking the metaphor of the self literally. Martin Roeder has argued that moral rights generally protect against something analogous to “bodily injury.”^[210] Roberta Kwall seems to suggest something similar, arguing the rights prevent “assault[s]” on the author’s “personality [as it] is embodied in the fruits of her creation.”^[211] The work, in this view, is in some sense a part of the author’s physical body. Harms to the work are analogous to harm to the author’s body. But this is a claim about what the work is. And it is not clear how “unauthorized (and possibly temporary or nondestructive) alteration of some thing causes an objective injury to someone.”^[212] Because inductivists do not answer this question, suggesting the work is part of the person is more a rhetorical point than a substantive argument.^[213]

Others take moral rights as designed to protect specific interests, including the author’s spiritual interest; feelings, “intentions,” or “artistic vision”;^[214] and honor and reputation.^[215] For others, such as John Merryman, Albert Elsen, Susan Liemer, and Simon Stokes, personality interests include things like dignity and privacy.^[216] For Roberta Kwall, injuries to personality harm the author’s “honor, . . . artistic spirit,” “human spirit,” “individuality, . . . freedom,” “dignity, self-worth, and autonomy.”^[217] Personality may also include—for some like Katz—collective or cultural interests.^[218] Society, in other words, may have an interest in preserving a particular work of art. Perhaps the best way to characterize the harms and interests at stake, then, is in terms of an artist’s noneconomic interests.^[219]

Sometimes, these interests are made more concrete by invoking them in the name of specific rights. Yet this invocation tends to remove the concept of personality from discussion. Consider the rights of divulgation and withdrawal, which most scholars, either explicitly or implicitly, seem to ground in liberty or autonomy.^[220] These other concepts, however, are not explained in any way that sheds light on the relation that personality investment is said to create. Damich and Kwall seem to invoke a concept of liberty to justify the rights of disclosure and withdrawal.^[221] The right of disclosure for Damich protects the author’s right to decide how to project her personality.^[222] For Kwall, the right to divulge a work gives the author control over the creative process.^[223] On Liemer’s view, similar notions of liberty and freedom of choice support the rights of withdrawal and disclosure. These rights protect the author’s relationship with her work—whatever that may be—by giving the author control over the creative process.^[224] Some of the mental harms that may arise from disruption of this relationship are mental distress and disappointment. These occur, of course, in everyday life as well, and proponents of divulgation/withdrawal rights need to show why the law should protect against them in the case of copyrightable works.

These descriptions mix both harms and values. Infringement of liberty, it is argued, is a harm unto itself and a harm to the author’s mental state. These arguments about liberty, though, are curiously similar to Kant’s conception of speech and one’s right to make speech on her own terms.^[225] The relation between the author and the work on this view is not clearly articulated. Nor, for that matter, does personality necessarily seem to be an embodiment of the self; the speech itself originates from the author, but need not be “part of” the author.

Related issues crop up when scholars discuss the interests protected by the right of attribution. Roeder, for example, argues that the author is entitled to communicate with the public under her own name to facilitate self-definition.^[226] Edward Damich suggests something similar, claiming that moral rights protect the author’s “ability accurately to reflect the author’s personality.”^[227] For others, like Katz, Liemer, and Kwall, the right of attribution preserves the author’s “concrete” and “intensely personal” relationship with a work by allowing the author to present herself as she wishes.^[228] Stewart Sterk has characterized this as “protecting authors['] . . . work . . . to protect their self-conceptions[; i.e.,] to maintain a sense of identity.”^[229] Both of these accounts, like those offered in support of the right of divulgation, seem to emphasize the author’s ability to define her “self”—her ability to choose when and how she presents herself as an author.

But the assertion raises a number of questions. The most obvious are related to the foundation that forms the basis for the claim: What is a self, how can it be defined through creative expression, and why providing moral rights is central to protecting this ability? And just what is the “concrete relationship” that is protected? Another relates to the interest in self-definition. If self-definition is the objective, then the right should not be limited to creative expression unless we can reliably distinguish between creative expression and other activities. And if the right is limited to creative expression, it will need to account for the interest in self-definition that others have in using the author’s work.

Here, the right functions as a bootstrapping mechanism for the relationship: the right protects the relationship, and the relationship requires the right. But what is the relationship?

Similar issues pervade discussion of the interests protected by the integrity right, which include not just self-definition but also respect, honor, and reputation.^[230] Liemer, for example, argues that moral rights are designed to encourage “respect for the art work, its creator, and the process by which she created.”^[231] But she also thinks the integrity right is central to protecting the creative process, and in describing the harm that befalls a creator, calls violations of moral rights a “slap[] in the face.”^[232] Damich, by contrast, views the integrity right as protecting personal liberty or self-definition: the ability to control whether and how one projects herself to the public.^[233] And Kwall grounds it in a “guarantee[] that the author’s work truly represents her creative personality.”^[234]

The questions here are similar to the ones raised above. Why do the interests or values at stake—e.g., liberty, respect, autonomy, self-definition—give rise to the right or the relation between the author and her work? Why, for example, does the right of integrity exist as the presumption, later to be weighed against the interests of others?^[235] Why not make the default position the interest of the public? And to the extent they are supposed to shed light on the nature or content of personality, these general values do very little. Nor do they, in any substantive way, sketch out how the author has a special relationship to her work. While it is possible that some of these values could ground this relationship, they have not been adequately explored by the scholars discussed in this section.

C. Lessons from Modern Personality Theorists

Both deductivists and inductivists rely on personality, though to varying degrees, to argue for moral rights. The problems that plagued early moral rights theorists also bedevil modern scholars. One challenge scholars have is articulating what personality means. Defining personality—whether in Hegelian or Kantian terms or by using concepts like “self” or “identity”—simply begs the question of what those concepts mean. Without this definition, it is hard to understand precisely what is invested in a work when the author creates it, or why special rights are needed to create any resulting author-work relation.

Scholars have not been able to solve this problem by working backward from rights to interests. When scholars try to articulate the interests or harms at stake when moral rights are violated, the results are similarly diverse.^[236] As Michael Spence notes, personality seems to carry meanings ranging from reputation to self-expression to self-presentation.^[237] But it also seems to mean dignity, liberty, autonomy, and honor.^[238] In short, “there does not appear to be a single, coherent creator interest that argues for a system of Moral Rights; in fact, there are several such interests, and they do not always travel together.”^[239] However, there is no account of why these particular interests are implicated by the Investment Theory.^[240] And there is even less discussion about how these interests conflict or interact with other, potentially competing interests.

Perhaps this is why William Fisher III has called personality theories “too abstract and thin.”^[241] They fail, in other words, to give any full account of personhood. In his view, there are no less than ten (10) interest-based arguments for (property) rights from the personality perspective. He lists them as (1) peace of mind; (2) privacy; (3) self-reliance; (4) self-realization as a social being; (5) self-realization as an individual; (6) security and leisure; (7) responsibility; (8) identity; (9) citizenship; and (10) benevolence.^[242]

Reliance on other interests or values^[243] raises questions about why they ought to justify special authors’ rights. And even if moral rights represent “a compound” of personal rights or interests,^[244] it is hard to understand why they cohere or on what grounds they are justified. Fisher argues that personhood-style arguments for intellectual property rights must be found, if at all, in the interests of privacy, individual self-realization, identity, and benevolence.^[245] But, he says, no one can agree on the weight or contours of each interest.^[246] While consensus isn’t a requisite of theoretical coherence, scholars have yet to provide much substantive argument supporting the claim that they generate special authorial rights. In short, the idea that one can sustain a personality-based justification on a deflated version of personality is possible, but it requires more than simply identifying specific interests and nominating them for legal protection. Even then, calling the justification one based on personality would be misleading.

V. Moral Rights Without Personality

This part moves beyond personality but not the person. Comparing existing civil law protections of the person to moral rights protections, it argues that reputational interests best capture what moral rights protect. However, doing so requires confronting several practical and theoretical challenges, which this part addresses by transparently identifying and weighing all relevant interests involved.

Section A asks whether existing civil law may provide some insight into the kinds of interests moral rights purport to protect against. Drawing on tort law, it identifies two principles that limit the scope of actions that harm personal interests and contrasts them with actions potentially prohibited by moral rights. Section B then uses Hughes’s framework to ask whether the author’s interests can serve as the basis for moral rights. It argues that using these interests as the basis for new rights faces challenges because they lack features that traditionally limit the nature and scope of rights that protect personal interests. Section C concludes by identifying the nub of the problem, regardless of whether the interests are good candidates to justify rights: how ought these reputational interests be weighed against other interests? In answering this question, it argues that special authors’ rights may be difficult to justify given the limiting principles identified in Section B.

A. From Selves to Personal Interests

Individuals already enjoy protection for injuries to their person in civil law.^[247] So if the work is indeed some extension of the person, then it is worth asking whether moral rights represent a justified extension of the existing rights covering persons.^[248] Doing so achieves two aims. First, it re-emphasizes the limits of the investment/self-metaphor. Second, it demonstrates that the law carefully limits its recognition of psychological and personal harms. At the very least, this should make us suspicious of the assertion that the author’s protection from psychological harm is significant enough to deserve special rights.

We can drive home the first point quite easily by considering the obvious fact that a work is not (part of) a physical body. Since the two are separate, the harm that befalls a mutilated body is different than the harm that befalls a mutilated work. Although this analogy is imperfect, it may nevertheless capture something important about the similarity of interests at stake when bodies or works are violated in some way.

Unfortunately, it is difficult to know what this similarity might be. Indeed, it is precisely because the thing at issue is not similar in both cases that the interests implicated by them seem categorically different. Intentional torts, like assault and battery, are fundamentally about the individual interest in bodily autonomy: actual or potential physical harm to an individual person.^[249] Moral rights, by contrast, are about harm that occurs because of actions affecting works.^[250] If the author is harmed, her physical body is not. Whatever it’s like to watch someone burn a copy of your painting, it is decidedly different from watching them throw a Molotov cocktail at your face.

Burning a masterpiece may not injure the author’s body, but it may damage her mind. Law recognizes harm without physical injury in limited circumstances.^[251] Here the design and purpose of common law and moral rights protections may overlap or converge; but in so doing, they show several important principles that may prevent a merger.

Suppose, for instance, someone intentionally burns an author’s original and only version of her life’s work or otherwise “mutilates” it. Depending on the circumstances, tort law may recognize harm for the author’s psychological injury through a doctrine like intentional infliction of emotional distress. For example, if the tortfeasor knows the individual highly values the work, would be devastated by its destruction, and intends to cause her to suffer severe emotional distress, the law may provide redress.^[252]

But where knowledge of the author’s susceptibility is less certain—or more significantly where what is destroyed or altered is one of many copies of the author’s work—the claim will probably fail absent some special circumstances.^[253] The reason: when a tortfeasor damages or destroys property, even a 200-year-old family heirloom, the owner cannot recover damages for sentimental value or emotional distress.^[254] It is precisely this fact—that actions with respect to a copy of a work rather than either the unique original work or the person herself—that makes it fundamentally different from the personal bodily interests implicated by torts like assault, battery, or intentional infliction of emotional distress. It also distinguishes it from damage to property, or even quasi-property claims like misappropriation of identity.^[255] Perhaps this is why the Restatement explicitly singles out the author and denies her recovery for “sentimental” value or “emotional distress” when her manuscript is destroyed.^[256] For authors, there is no physical threat to an actual body, a person, animal, or even to a material thing, but rather a metaphysical threat to a “copy” of a thing. At this point, the interests that previously seemed to converge begin to split apart.

The tort of intentional infliction of emotional distress highlights the law’s skepticism toward recognizing a psychological injury without accompanying physical contact.^[257] If private law takes a pause before recognizing purely psychological harms to an individual person caused by another’s action directed to that person, then we should take a particularly long beat when personality theorists insist on expanding the concept of harm to cover psychological harms that result from all kinds of actions not necessarily directed toward anyone. The animating principle here is this: law tries to keep personal, and particularly psychological, harms tightly tethered to the individual (and her body) rather than the things merely produced by or associated with the individual (or her body).^[258]

Defamation helps to underscore this point, as well as another. Under circumstances that vary by jurisdiction and person, an individual can sue another who injures their reputation by making a false statement of fact about them.^[259] A critic, for example, says the author has stolen the work of another artist and passed it off as her own. Unlike intentional infliction of emotional distress, where tortious action is directed to a person, defamation allows recovery for tortious statements made about the individual. Thus, while the harm in question may be less physical, the tort demands a strict connection between the personal interest protected (reputation) and the action causing harm (statement about the individual).

The second important point is that by requiring a statement of fact about the individual, defamation places objective limits on recovery.^[260] This distinguishes it from other kinds of statements or communications, such as those that use another’s work for some other purpose (e.g., making new work or commenting negatively on the original).

Moral rights seem to lack both characteristics. They prohibit what others do with the author’s work rather than what others can say about the author. If harm is considered reputational, for example, moral rights miss the tight connection to the individual demanded by tort law because what causes harm is a use of a work rather than a statement about the author.^[261] Because the statement is not necessarily or typically about the author, the objective check on reputational harm seems missing.^[262]

These two differences suggest that moral rights require additional justification. In other words, the reasons supporting moral rights should be stronger than those supporting defamation. What we have seen, however, is that the reasons given for supporting moral rights grounded in personality theory are somewhat ethereal. Instead of providing a justification for the rights, personality theory papers over exactly what harm occurs by asserting the existence of the author-work relation. Without the concept of personality, it is hard to understand what is so special about the use of an author’s work that justifies moral rights. That is the question to which the next section turns.

B. Personal Interests Without Personality

Because personality has proved problematic in both understanding and justifying moral rights, this section explores what interests authors might have in moral rights. It argues that the primary interest protected by moral rights is reputational, and that lessons from Section A might help us understand how best to protect them. It concludes by arguing that it is challenging to identify why these rights ought to apply to different types of works.

1. Interests

What interests might authors have in their works? Hughes identifies three—creativity, sourcehood, and intentionality.^[263] This is a good start. And if we separate these interests from the concept of “personality,” we can start to see more clearly what is problematic about a use moral rights might protect, such as publishing an altered version of the work. Interests like sourcehood, creativity, and intentionality here are important not because of some ineffable link to the work, but because people assume that the work is authored by a particular individual.^[264] And in communicating the work, the person may have a particular intentional stance. That intentional stance can be recognized, if at all, by identifying them as the individual who took it. To put things differently, when Taylor Swift publishes a song, she communicates some message through the song. For her to communicate this message, and to communicate it as her message, she must be identified in some way as its source. Sourcehood, creativity, and intentionality interests are therefore connected in an intimate way. This has nothing to do with her “self” or even “the work” and everything to do with how people perceive her—namely, her reputation.^[265]

What is the nature and scope of such reputational interest? The remainder of this section analyzes the first of these two issues. Consider another’s action that causes a third party to misinterpret the author’s intentional stance—a potential violation of either the attribution or integrity rights. Here the author may have wished to convey a particular message or idea, but another’s action caused some kind of adulteration of the message or idea. Harm “in the air” here won’t do;^[266] it must be conceived of in terms of the author’s interest of intentionality and source/creativity interests. If the artist is Taylor Swift, she may suffer economic harm—like lost sales—when her intentionality, her message, is adulterated because people think she conveyed a message she did not.^[267] But in many cases, the author may suffer some other, sometimes noneconomic harm—such as negative perceptions or psychological harm.

Maybe the interests of intentionality, creativity, and source are strongest at the point of initial communication and protecting that interest is justified. But there are two problems here. One is that if the interest is conceived of too broadly, then the right could cover any and all people engaged in communication with the public, including “mass produced products of, say, elegant design.”^[268] Another is that Kantian arguments, which are grounded in duty rather than interests, regard duty as bilateral: it runs both from and to the author.^[269] A bilateral discussion of duties suggests one for interests as well. What interests, for example, does the audience have in the intentionality, source, and creativity of the author’s communication? And what interests to others have that compete with the authors? That subject is explored in Section C.

To more concretely identify the harm to these interests, consider for a second a potentially more obvious example: intentional or reckless actions by which one intends to cause a misinterpretation—or to otherwise harm interests of intentionality or source. While such actions seem like good candidates for the basis of integrity or attribution rights, we must be careful not to recognize them too quickly. Sometimes the point of the use—the action by another—is to change the message or one’s interpretation of it. Because the harm to the author cannot exist “in the air,” saving the interest requires tying intentionality to sourcehood; i.e., when, because of another’s deliberate action, the audience incorrectly understands the adulterated communication or idea to originate with the author.

This is why it seems strange to provide, for example, Ozzy Osbourne with any special rights to prevent Kanye West from using samples of his songs or making some kind of disclaimer or attribution claim. Osbourne’s objection is one of association. But even if one knows that the sample originates from Ozzy Osbourne, they also know that Kanye West’s song using that sample does not.

In other words, deliberate actions must be coupled to a particular audience’s perception that the author was the source of the work. Which audience and how it is assessed are separate questions. This looks very familiar. It looks like the land of reputation, not personality.^[271]

Reputation ties rights of attribution and integrity to sourcehood, intentionality, and creativity interests in an obvious way. Failure to attribute may cause reputational harm because the person is not recognized as the source of the achievement or message; false attribution to the author has potentially altered the author’s reputation by imputing her as the source of a message that didn’t originate with her. Thus, while attribution may seem to protect only a sourcehood interest (“that was me”) it also is intimately connected with the potential intentionality of the thing itself (“I meant that”), as well as creativity interests (“that is my expression”).^[272]

The same may not be true for a sourcehood interest, which might independently generate a reputational concern worth protecting. While our interest in sourcehood may vary by context, one general idea—an idea that goes back to, but by no means needs to rely on, Hegel—is that we have an interest in being recognized for what we do. One might charitably read Gareis to have meant this when he said that moral rights protect the author’s “faculties as such.”^[273] Here, the concern can be recast in terms of attribution, not of our personhood, but of our actions.

Consider a few examples. Professors care a great deal about their work being cited and their ideas attributed, at least in part, because it shows they are clever or influential. An author may care about attribution because her book is considered well-written. A sculptor may desire attribution because, without it, she has no prospect of success. Attribution in each case is not just a tool for self-recognition, but rather, or perhaps more poignantly, to help others figure out what to think about the author (and for the author to figure out what others think about her).^[274] In this way, sourcehood contributes to our reputational interest by helping others identify us by our actions. Yet if our achievements are of no consequence to our reputation, then failing to attribute them to us seems to cause no harm.

Reframed this way, interests like sourcehood and intentionality are recognized because they affect one’s reputation, not because they are in themselves special “personality” interests specific to moral rights. Intentionality, creativity, and source are tied together and to reputation because, without sourcehood, distortions of the author’s intentionality don’t seem to harm her reputation. Thus, violations or harms to intentionality interests must, at least on a reputational view, be coupled with violations or harms to a sourcehood interest.

Maybe these reputational interests are significant enough that law ought to protect them in some way. If so, the civil law’s approach to personal harm discussed in Section A may provide guidance on how to protect them. Recall that civil law often imposes two constraints on recognizing psychological or reputational harm. One is some objective standard to measure harm. To state a defamation claim, for example, the statements made by another must be factual.^[275] For intentional infliction of emotional distress and assault, either the harm suffered or the reaction that is the basis for the harm is evaluated using an objective standard.^[276] The second is that statements are personal: they are about the person or reflect directly on the person’s reputation, and not, say, a judgment about the relative merits or demerits of, or a comment on, their artistic style. The statement Frank defrauded his company out of a million dollars is different in kind from the use or modification of a painting Frank made.

In some ways, moral rights may be able to respond easily to these constraints. But in other, more fundamental ways, it may have trouble doing so. Consider first that reputational injuries are subjective assessments. This is true, of course, for defamation but there it is cabined by the objective nature of factual inquiry.^[277] Other areas that protect reputational interests, like the intentional tort of battery or trademark infringement, also have some objective component (e.g., reasonable person) that limits the reach of the law.^[278] Moral rights could impose such a requirement, perhaps by making the potential attribution and integrity rights turn on an objective assessment of what a reasonable interpreter would perceive.^[279]

A harder problem to solve, at least in some cases, is tying the use to a statement or communication about the person. Uses of works, as noted above, need not be about the author to cause some kind of reputational harm. So, rights prohibiting uses of a work that cause reputational harm seem to be a mistake unless the use concerns a statement “about” the author. But uses frequently require interpretation, and to widen the ambit of liability we need a principle that cabins its scope. Merely stating that the use must reflect poorly on the author’s reputation widens the ambit but also its scope. Requiring a statement about the author seems to cabin the scope but also the ambit of liability, bringing us to defamation or, if the injury is psychological and not reputational, then to intentional infliction of emotional distress.

Perhaps this is not such a big problem. If what matters to reputation is being the source of some message, then mistaken association as the source is the problem. Trademark law may be able to help here. Trademark law serves a number of purposes. One is an “information transmission function”—it communicates to consumers information about the source and the quality of goods to which the trademark is affixed.^[280] And by limiting others’ use of the mark on confusingly similar goods or services, trademark law also serves a reputational function: both firms and consumers can capture the value of reputation, and in some cases firms may have a sui generis right to protect the purity of their reputation.^[281] Trademark law also contains some objective limitation on the reputational interest (the reasonable consumer), despite the subjectivity of its substantive assessment (i.e., likelihood of confusion, sponsorship, etc.).^[282] Moral rights might work better, then, if framed in terms of trademark law.

Limitations on trademark law, however, are different from intentional torts in an important way. Trademark law grounds harm primarily, though not only, in competition and consumer search costs rather than harm to the producer (or her psychological state).^[283] Of course, it’s possible to refashion moral rights in the image of trademark law so that they reduce search costs or promote fair competition,^[284] but it is less clear that this vindicates the relevant reputational interest that matters. Trading on one’s public image, as Professor Xiyin Tang puts it, is quite different from protecting reputational interests one may have in the communication of their work.^[285] And it may also, though not always, be different from a kind of passing off like Professors William Landes and Richard Posner have suggested.^[286]

If we are unwilling to go along with the trademark-style arguments but not with purely economic artist-as-brand, then it is difficult to identify what reputational interest is at stake without reverting to arguments about communication or personality, which have their own significant problems. We have to find a middle ground. On the one hand, we needn’t require the reputational interest relate “only [to] specific objects that the artist has placed into the stream of commerce with his ‘brand’ affixed.”^[287] On the other hand, we do have to insist that there is some kind of direct link between the use of the work and the author sufficient to generate a reputational injury.

Now we are right back to the problem identified above: if the statement is not about the author in a direct way, it is challenging to show what that link is without pointing back to reputation. As a last gasp, we might try something like a false sponsorship or endorsement claim, but these claims are likely to fail precisely because an objective requirement should place strict limits on sponsorship claims given the nature of communication and the need to tie reputational interests to the author. This leaves us at a crossroads with no obvious path forward.

2. Scope

If reputational interests justify or at least support attribution and integrity rights—through trademark or otherwise—there is still a question of how expansive or narrow the rights should be. The precise scope of a right is a context-dependent inquiry that must address others’ competing interests (discussed in Section V.C). One can at least partially address it, however, by looking to the reputational interests implicated by the type of work itself—at least insofar as the work is thought to bear on one’s reputational interests.^[288] That is, thinking through the types of works to which moral rights should apply may help us determine the relevant scope of reputational interests.

As it turns out, the task presents a central challenge for moral rights proponents. Hughes’s response is to distinguish works, and hence interests, by creative constraints. He argues that harm is most acute where creators operate under weak constraints and less robust (perhaps nonexistent) where constraints are strong.^[289] Constraints are weak in domains like art but strong in science or engineering because the artist, unlike the scientist, has neither a problem to solve nor a mechanistic process by which she must solve it.^[290] This, according to Hughes, is a potential justification for providing moral rights to artists but not engineers.^[291] Although Hughes makes this argument in the personality tradition, it could be applied equally to a reputation-centered justification of moral rights as well.

It is not clear, however, why constraints should be the proper limiting factor for certain interests. Perhaps an engineer is constrained by her task, but depending on the task, the author may be equally constrained by at least four factors. First, artists may be constrained by content. A story must follow a particular pattern, the characters a particular type, and so on. Deviating too far from this will yield either an incomprehensible story or a poor one. A review of recent movies also reveals a rather shallow stock of stories from which to draw—and so the screenwriter seems quite constrained by their project of storytelling. One is reminded of Kurt Vonnegut’s famous graph that depicts the shape of three different stories.

Second, authors may also be constrained by medium. Sculptors cannot make novels, and the materials they use may be no different than those available to engineers. Indeed, engineering may be part of the design, and the design may be constrained by the idea, which could be considered similar to the function of a product. Third, culture and norms can constrain what the author expresses, either through the force of social convention,^[293] the more subtle normative restriction that delimits the imagination, or the limits of the content of the culture itself. And, finally, just like creators of all types, authors are constrained by technology. Compared to a musician today, a musician two hundred years ago was severely constrained in how she could express musical works. A piano may have been available, but what about a drumitar?^[294]

Should any of these constraints affect the author’s interests or the rights that protect them? The obvious answer is no because all human activity is constrained by content, medium, culture, and technology. And to prioritize some types of works over others is to pass judgment about the nature of the interest generated by a contingent set of facts rather than the nature of the interest itself.

But the less obvious answer is yes because the contingency of everything affects how we conceive of interests and the rights that ought to protect them. Consider how the nature of technology affects the type of interest at stake. That is, if constraints help to distinguish between those deserving moral rights and those that don’t, then certainly technological constraints on authors will affect the interests that law might protect. If this is true, then it makes a great deal of sense to protect computer code differently than paintings, not based on the creative constraints on computer programmers, but rather based on the constraints imposed by technology. Once this door is opened, however, one must grapple with how other differences in technology affect the interests moral rights seek to protect—photographs, digital renderings, and all the old debates that have yet to be resolved.

C. Weighing Competing Interests

Once relevant interests are identified, one must ask whether there are good reasons for protecting them with rights. This requires taking two further steps. First, one must provide a good argument that the rights are warranted. Second, one must weigh the interests protected by the rights against “(a) other individuals, (b) the organized public, [and] (c) society.”^[296]

The second step is the hardest one to make. Choices must be made about both which interests count and their relative weights: author, other, public, and so on. What personality theory tries to do is fatten up the author’s interest so as to outweigh the others. Without personality theory, however, one must make an affirmative argument for placing a thumb on the author’s side of the scale.

Reputation, the previous section suggested, may provide a better picture of the interest authors have. While the interest is more concrete and identifiable, it also is less robust. Civil law has traditionally imposed limitations on the personal and psychological harms caused by others, including reputational harm.^[297] This suggests that moral rights will have to bear the full weight of not just the limitations but the interests those limitations are designed to protect: free speech, cultural exchange, creativity, and autonomy. Balancing these interests may yield particular rights that protect authorial interests, but they are likely to be far less robust than what personality theorists would suggest.

VI. Conclusion

Personality is a concept that has unified moral rights theorists. Yet scholars have struggled to define it with any kind of rigor or consensus. The concept has “become[] totally lost by awakening every conceivable response in every conceivable investigator.”^[298] The point of this Article was to show not just that the concept was difficult to define, but also that its definitional elusiveness presents a serious obstacle to crafting a moral rights theory based upon it. This is true not just for the modern proponents of the rights, but also their philosophical forebears. Although almost all personality theorists assert that the author’s investment of personality creates a link to the work that must be protected, they fall short of describing in any detail what personality is, how it is invested in a work, and why doing so should generate special legal protection. In showing that personality is a clumsy tool for crafting a justification for moral rights, this Article suggested better ones may be found in civil law, particularly civil law that protects reputation. While it stopped short of endorsing a reputation-based moral rights system, it offered some thoughts on why a reputation-based approach is more attractive than a personality-based one—and why it may be difficult to implement.

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1. When I use the term “moral rights,” I refer only to these special rights in copyright law. I do not refer to the more general categories of rights that are derived from moral imperatives, or any other kind of moral obligation.

2. These rights include a variety of sub-rights, such as the right to be named as the author, the right not to be named as the author of another’s work, the right to publish pseudonymously, the right to publish anonymously, etc. These are beyond the scope of this Article.

3. Berne Convention for the Protection of Literary and Artistic Works art. 6bis, Sept. 9, 1886, 102 Stat. 2853, 1161 U.N.T.S. 3 (amended Sept. 28, 1979) [hereinafter Berne]. Moral rights may include two additional “core” rights—the right to divulgation and the right to withdrawal. David A. Simon, Copyright, Moral Rights, and the Social Self, 35 Yale J.L. & Humans. 754, 786–87 (2024) [hereinafter Simon, Copyright and the Social Self]. A discussion of them is not material to this paper.

4. Not every scholar justifies moral rights using personality theory. E.g., Henry Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. Legal Studs. 95, 102, 104 (1997).

5. The discussion here is both metaphysical and moral. For a discussion on the implications of using the term personality in different contexts see Paul B. Miller, Corporate Personality, Purpose, and Liability, in Research Handbook on Corporate Purpose and Personhood 222, 224 (Elizabeth Pollman & Robert B. Thompson eds., 2021). Paul Miller notes, “ascrib[ing] a legal entitlement to an individual is to make a value judgment about the importance of their interests as a matter of natural and/or social ontology.” Paul B. Miller, The Concept of Personality in Private Law, in Interstitial Private Law 179, 190 (Samuel L. Bray et al. eds., 2024) [hereinafter Miller, The Concept of Personality].

6. See Simon, Copyright and the Social Self, supra note 3, at 773.

7. Amy M. Adler, Against Moral Rights, 97 Calif. L. Rev. 263, 264 (2009).

8. See infra Part II.

9. See infra Parts III–IV.

10. William Fisher, Theories of Intellectual Property, in New Essays in the Legal and Political Theory of Property 168, 191 (Stephen R. Munzer ed., 2001).

11. Adler, supra note 7, at 265, 279.

12. K. E. Gover, Art and Authority: Moral Rights and Meaning in Contemporary Visual Art 22–26 (2018).

13. See, e.g., id. at 26; James Boyle, Shamans, Software, and Spleens 51–53 (1996); James D.A. Boyle, The Search for an Author: Shakespeare and the Framers, 37 Am. U.L. Rev. 625, 628–29 (1988); Michel Foucault, What is an Author?, in The Book History Reader 225, 230 (David Finkelstein & Alistair McCleery eds., 2002). Others have argued that this modern conception is purely ideological and did not result only from technological advances. E.g., Lisa Maruca, Bodies of Type: The Work of Textual Production in English Printers’ Manuals, 36 Eighteenth Century Studs. 322, 335 (2003). See also Jeffrey Masten, Playwrighting: Authorship and Collaboration, in A New History of Early English Drama 357, 370 (John D. Cox & David Scott Kastan eds., 1997); Martha Woodmansee, On the Author Effect: Recovering Collectivity, in The Construction of Authorship: Textual Appropriation in Law and Literature 1–5, 23 (Martha Woodmansee & Peter Jaszi eds., 1994).

14. Other research in social psychology tends to confirm the suspicion that emphasis on the author-as-expresser is a cultural artifact, rather than some fundamental fact of human nature. Research has shown that Eastern cultures differ from Western cultures in how they perceive the idea of self-expression generally. While Western cultures tend to view expression as a product of the inner self (thoughts, emotions, desires), Eastern cultures are more likely to characterize expression as a product of external circumstances or simply something that is of trivial importance. See Heejung S. Kim & Deborah Ko, Culture and Self-Expression, in Frontiers of Social Psychology: The Self 325, 326–29 (Constantine Sedikides & Steven J. Spencer eds., 2007).

15. Arthur S. Katz, The Doctrine of Moral Right and American Copyright Law—A Proposal, 24 S. Cal. L. Rev. 375, 399 (1951).

16. Charles R. Beitz, The Moral Rights of Creators of Artistic and Literary Works, 13 J. Pol. Phil. 330, 339 (2005).

17. Lawrence Adam Beyer, Intentionalism, Art, and the Suppression of Innovation: Film Colorization and the Philosophy of Moral Rights, 82 Nw. U.L. Rev. 1011, 1083 (1988).

18. Beitz, supra note 16, at 340. Beitz seems to equate personality with the special relationship, but it is important to disentangle the two to understand the argument. Id. at 343.

19. This is not a claim that people lack personality. It is, rather, a claim that no one has defined personality sufficiently clearly, making it difficult to understand what it means for a person to “have” personality.

20. This Article’s claims are limited to the arguments found in sources translated to or published in English. I did not evaluate the texts of moral rights theorists that were available only in French, German, or some other non-English language. Therefore, it is possible that early or modern moral rights theorists writing in languages other than English have provided stronger arguments than those presented in this Article.

21. See Cyrill P. Rigamonti, The Conceptual Transformation of Moral Rights, 55 Am. J. Comp. L. 67, 76–78 (2007) [hereinafter Rigamonti, The Conceptual]; David Saunders, Authorship and Copyright 80 (1992); Cyrill P. Rigamonti, Moral Rights in Copyright Law: A Comparative and Historical Study 127–28, 127 n.11 (May 2006) [hereinafter Rigamonti, Moral Rights] (unpublished partial dissertation) (on file with the Harvard Law School Library) (citing as examples France’s 1793 copyright law, and Prussia’s codification of private law in 1794 and of copyright in 1837); id. at 131 (noting that Prussia and Austria adopted rules relating to nonperformance of publishing contract (right of disclosure) prior to enacted copyright statutes); Robert C. Hauhart, Natural Law Basis for the Copyright Doctrine of Droit Moral, 30 Cath. Law. 53, 64 (1985).

22. Rigamonti, Moral Rights, supra note 21, at 125, 127–28 (discussing the legality of attempts to force an author (frequently a debtor) “to disclose or forfeit their unpublished works”).

23. Friedemann Kawohl, The Berlin Publisher Friedrich Nicolai and the Reprinting Sections of the Prussian Statute Book of 1794, in Privilege and Property: Essays on the History of Copyright 207, 215, 218–22, 239–40 (Ronan Deazley et al. eds., 2010); Saunders, supra note 21, at 103; see Raymond Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law, 16 Am. J. Comp. L. 465, 467–69. (1968).

24. See Saunders, supra note 21, at 119–20; Rigamonti, The Conceptual, supra note 21, at 80.

25. Rigamonti, Moral Rights, supra note 21, at 86–87.

26. See generally Miller, The Concept of Personality, supra note 5.

27. Stig Strömholm, Right of Privacy and Rights of the Personality: A Comparative Survey 19 (May 1967) [hereinafter Strömholm, Right of Privacy] (working paper prepared for the Nordic Conference on privacy organized by the International Commission of Jurists).

28. Id.

29. Neil Netanel, Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation, 24 Rutgers L.J. 347, 378 (1993).

30. Hegel and Kant viewed the relationship between subject and object very differently. The former viewed them as inseparable, while the latter as separable and the “object” as unknowable. See Margaret Jane Radin, Contested Commodities 34–35 (1996).

31. See id.; Margaret Jane Radin, Market-Inalienability, 100 Harv. L. Rev. 1849, 1891–94 (1987); Netanel, supra note 29, at 372.

32. While a complete exposition of Kant and Hegel’s writings are beyond the scope of this Article, understanding their arguments is crucial to evaluating the arguments for moral rights.

33. G.W.F Hegel, Philosophy of Right §§ 43, 68–69 (S.W. Dyde trans., 2001). For Hegel, personality was absolute freedom, and it implied the ability to possess certain rights. Id. §§ 35–36. Thus, it is different from the idea of legal personality discussed earlier. See supra Section II.A.

34. For Hegel, human existence was directed at a goal: absolute knowledge and absolute freedom. This occurred when Geist came to know itself as absolutely free. See Hegel, supra note 33, § 4.

35. Michael Inwood, A Hegel Dictionary 313–14 (1992).

36. Huntington Cairns, Legal Philosophy from Plato to Hegel 512–13 (1967); Hegel, supra note 33, § 49.

37. Cairns, supra note 36, at 513.

38. Hegel, supra note 33, § 54 (taking possession through marking or use); Kenneth Westphal, The Basic Context and Structure of Hegel’s Philosophy of Right, in The Cambridge Companion to Hegel 234, 247 (Frederick C. Beiser ed., 1993) (noting that Hegel founded property rights on convention, not natural law).

39. Jeanne L. Schroeder, Unnatural Rights: Hegel and Intellectual Property, 60 U. Miami L. Rev. 453, 455 (2006).

40. See Hegel, supra note 33, § 54.

41. This is how Hughes interprets the work. See infra Section IV.A.1.

42. Immanuel Kant, The Metaphysics of Morals (1797), in Immanuel Kant: Practical Philosophy, 353, 378, 401–02, 460–61 (Mary J. Gregor ed., trans., 1996) [hereinafter Kant, The Metaphysics].

43. Id. at 378. (distinguishing moral personality from psychological personality or being “conscious of one’s identity”).

44. Critique of Practical Reason and Other Writings in Moral Philosophy 120, 194 (Lewis White Beck ed., trans., 1949).

45. Kant, The Metaphysics, supra note 42, at 395 (distinguishing moral personality from psychological personality or being “conscious of one’s identity”).

46. Critique of Practical Reason and Other Writings in Moral Philosophy, supra note 44, at 258–59.

47. Kant’s works include writings on author’s rights and book publishing. The most widely discussed work is Kant: On the Unlawfulness of Reprinting, Berlin (1785), in Primary Sources on Copyright (1450–1900) 403, 416 (L. Bently & M. Kretschmer eds., 2024), https://www.copyrighthistory.org/cam/tools/request/showRepresentation.php?id=representation_d_1785&pagenumber=1_1&show=translation [https://perma.cc/F9SD-UQYW]. Other translations have been Immanuel Kant, On the Wrongfulness of Unauthorized Publication of Books (1785), in Immanuel Kant: Practical Philosophy 29 (Mary J. Gregor ed., trans., 1996) [hereinafter Kant, Wrongfulness]; see also Stig Strömholm, Droit Moral—The International and Comparative Scene from a Scandinavian Viewpoint, 42 Scandinavian Studs. L. 217, 225 (2002) [hereinafter Strömholm, Droit Moral].

48. Kant argued that, in the absence of heirs, the publisher had a duty to print the work delivered to it even after the author’s death. Kant, Wrongfulness, supra note 47, at 33. But this also has consequences for reprinters. Unauthorized reprinting harms publishers, not authors. And the harm is economic. See Fichte: Proof of the Unlawfulness of Reprinting, Berlin (1793), in Primary Sources on Copyright (1450–1900) 457–58 (L. Bently & M. Kretschmer eds., 2024), https://copyrighthistory.org/cam/tools/request/showRepresentation.php?id=representation_d_1793&pagenumber=1_1&show=translation [https://perma.cc/2CQ4-ZMYK].

49. Kant, Wrongfulness, supra note 47, at 33–34. Some moral rights theorists found even this theory bizarre. See Commentary on: Kant: On the Unlawfulness of Reprinting (1785), in Primary Sources on Copyright (1450–1900) (L. Bently & M. Kretschmer eds., 2024) (quoting Josef Kohler, Urheberrecht an Schriftwerken und Verlagsrecht 76 (Luis A. Sundkvist trans., 1907)), https://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=commentary_d_1785 [https://perma.cc/HD8U-LPQ7].

50. See Kant, Wrongfulness, supra note 47, at 35; Anne Barron, Kant, Copyright, and Communicative Freedom, 31 L. & Phil. 1, 11, 41–42 (2012). Kant did not comment on whether such modifications would force attribution to another author, or the authorship status of such a work. Thanks to Lionel Bently for raising this point. See Kant, Wrongfulness, supra note 47, at 34; Immanuel Kant, The Philosophy of Law 130 (W. Hastie, B.D. trans., 1887). Others such as Fichte, however, argued unauthorized reprinting harmed the author directly. See, e.g., Fichte: Proof of the Unlawfulness of Reprinting, Berlin (1793), supra note 48, at 6. Kant’s general view, then, is that an author’s work relates to speech, not property. But see, e.g., Robert P. Merges, Justifying Intellectual Property 72, 77–79 (2011) (arguing that Kant viewed works as property).

51. See Simon, Copyright and the Social Self, supra note 3, at 764–66.

52. See infra text accompanying notes 66; Rigamonti, Moral Rights, supra note 21, at 160. Dualists “insist[] [upon] a clear conceptual separation between alienable rights of authors in their works (copyrights) and inalienable rights of authors in their personhood (rights of personality).” Id.

53. Margaret Davies & Ngaire Naffine, Are Persons Property? Legal Debates About Property and Personality 2, 10–11 (2002); Netanel, supra note 29, at 378–79.

54. See supra Part III.

55. Saunders, supra note 21, at 121; see Strömholm, Droit Moral, supra note 47, at 226; Edward J. Damich, The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors, 23 Ga. L. Rev. 1, 30 (1988).

56. Elizabeth Adeney, The Moral Rights of Authors and Performers: An International and Comparative Analysis 27–28 (2006) (citing Josef Kohler, Das Autorrecht: Eine Zivilistische Abhandlung (1880)); Kohler, Urheberrecht, supra note 49; Netanel, supra note 29, at 379 n.151 (citing Kohler, Das Autorrecht, supra, at 98).

57. See Strömholm, Right of Privacy, supra note 27, at 29; Karl Gareis, Introduction to the Science of Law: Systematic Survey of the Law and Principles of Legal Study 18, 20–21, 88 (Albert Kocourek trans., 1911).

58. Rigamonti, Moral Rights, supra note 21, at 164–66, 168. See Strömholm, Droit Moral, supra note 47, at 226 (noting that Morillot discovered the German dualist doctrine in 1870 but failed to use French caselaw to support his position).

59. See infra Section III.B.1.

60. 1 Stephen P. Ladas, The International Protection of Literary and Artistic Property 11 (Manley O. Hudson ed., 1938).

61. These rights of the author would eventually be known as moral rights, though the term would not become commonplace in legal circles for some time after it was first used by Morillot in 1878. Morillot on the Author’s Right, Paris (1878), in Primary Sources on Copyright (1450–1900) 111, 128 (L. Bently & M. Kretschmer eds., 2024), https://copyrighthistory.org/cam/tools/request/showRepresentation.php?id=representation_f_1878&pagenumber=1_1&show=translation [https://perma.cc/DP9P-6X58]. Despite the different terminology, for the purposes of this Article, I use the two terms “moral rights” and “authors’ rights” interchangeably.

62. “Moral rights thinkers” here just means the first scholars to begin conceptualizing authors’ rights as derived from personality as a special kind of right.

63. In the early literature, scholars often referred to either a “right of personality” or “rights of personality.” Because personality was used as a term to include many rights, I will use the plural form. See Strömholm, Right of Privacy, supra note 27, at 29.

64. Commentary on: Kohler: Author’s Right (1880), in Primary Sources on Copyright (1450–1900) (L. Bently & M. Kretschmer eds., 2024) https://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=commentary_d_1880 [https://perma.cc/9SUP-H6GC].

65. Gareis: Juridical Nature of Author’s Rights (1877), in Primary Sources on Copyright (1450–1900) (L. Bently & M. Kretschmer eds., 2024) [hereinafter Gareis: Juridical], https://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=record_d_1877 [https://perma.cc/2U58-3YAW].

66. Josef Kohler, Philosophy of Law 80 (Adalbert Albrecht trans., 1914).

67. Saunders, supra note 21, at 117 (quoting Josef Kohler, Das Literature und Artistiche Kunstwerk und sein Autorschutz: Eine Juridisch-…esthetische Studie 587 (Mannheim, J. Bensheimer 1892)).

68. Friedemann Kawohl, Commentary on Josef Kohler: The Author’s Right (1880), in Primary Sources on Copyright (1450–1900) (L. Bently & M. Kretschmer eds., 2024), https://www.copyrighthistory.org/cam/commentary/d_1880/d_1880_com_317200832856.html [https://perma.cc/BXU7-47BL]; see also Ladas, supra note 60, at 9–10 (explaining briefly Kohler’s view of Immaterialgüterrechte).

69. Kohler: Author’s Right, Jena (1880), in Primary Sources on Copyright (1450–1900) 58, 67 (L. Bently & M. Kretschmer eds., 2024) https://copyrighthistory.org/cam/tools/request/showRepresentation.php?id=representation_d_1880&pagenumber=1_69&show=translation [https://perma.cc/VPM4-LQG5].

70. Id. at 66.

71. Kohler, recall, was a dualist.

72. Kohler: Author’s Right, Jena (1880), supra note 69, at 74.

73. Damich, supra note 55, at 29 (“[T]he writer can not only demand that no strange work be presented as his, but that his own work not be presented in changed form. The author can make this demand even when he has given up his copyright. This demand is not so much an exercise of dominion over my work, as it is of dominion over my being, over my personality which thus gives me the right to demand that no one shall share in my personality and have me say things which I have not said.”) (quoting Kohler, Urheberrecht, supra note 49, at 15). In fact, this passage suggests that Kohler seemed to think both Kant and Hegel were right. Kant was right in that the work was a manifestation of the inner self (and a communication) that could not be alienated (or published against the author’s will); Hegel was right that the work was property that could be alienable.

74. See infra Section III.B.2.

75. Saunders, supra note 21, at 118 (quoting Kohler, Das Literature, supra note 67, at 33).

76. Id.

77. Id.

78. See Simon, Copyright and the Social Self, supra note 3, at 781.

79. Pursuing a life path, too, involves creating one’s identity. And both involve doing so within certain predetermined limits. Just as becoming a doctor involves creating one’s identity within preformed social categories, so too does molding one’s identity through the creative arts as a painter, sculptor, or playwright.

80. Damich, supra note 55, at 28.

81. Netanel, supra note 29, at 380 (quoting Damich, supra note 55, at 29); Adeney, supra note 56, at 51 (quoting Kohler, Das Autorrecht, supra note 56, at 152–53) (“Nobody may give a picture the appearance of being the work of an artist other than the true artists through attaching to it a name or monogram.”).

82. Commentary on: Gareis: The Juridical Nature of Author’s Rights, in Primary Sources on Copyright (1450–1900) (L. Bently & M. Kretschmer eds., 2024), https://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=commentary_d_1877 [https://perma.cc/EBW5-9JGH]. This theory happened to be a positivist one. Gareis: Juridical, supra note 65, at 198–99.

83. Gareis: Juridical, supra note 65, at 200. This was also the view of some French scholars. Marty and Raynaud, for example, sought to distinguish classes of rights based on “their pecuniary or personal character, their objects and their subjects.” Strömholm, Right of Privacy, supra note 27, at 53.

84. Gareis: Juridical, supra note 65, at 198–99.

85. Id. at 197–98.

86. Id. at 196.

87. Id. at 194.

88. Id.; John Stuart Mill, On Liberty 22 (3d ed. 1859) (second alteration in the original).

89. See, e.g., Ana Caldeira Fouto, Revisiting “Subjectivity” in Rights Theories: The (Re) Creation of the “Legal Subject” in Second Scholastics Juridical Discourse, 75 Revista Portuguesa de Filosofia 1103, 1104–05 (2019); Gareis: Juridical, supra note 65, at 194; see supra Section II.B; see Mill, supra note 88, at 22.

90. Gareis: Juridical, supra note 65, at 195.

91. Id.

92. Id. at 196 (“By ‘individuality’ one should understand all that is characteristic of a subject as an individual existing on his or her own right, assumed to have various specific qualities.”).

93. Id. at 199.

94. Id. at 198.

95. Id. at 198–99.

96. Rigamonti, Moral Rights, supra note 21, at 123.

97. . Gareis: Juridical, supra note 65, at 195.

98. Bluntschli was Swiss. Johann Kaspar Bluntschli, Britannica, https://www.britannica.com/biography/Johann-Kaspar-Bluntschli [https://perma.cc/TNX7-A539] (last visited Feb. 17, 2025).

99. The author wants to communicate the work publicly so long as it’s done “in an ordered manner and his authorship can be respected.” Bluntschli: On Authors’ Rights, Munich (1853), in Primary Sources on Copyright (1490–1900) 187–89 (L. Bently & M. Kretschmer eds., 2024), https://copyrighthistory.org/cam/tools/request/showRepresentation.php?id=representation_d_1853a&pagenumber=1_1&show=translation [https://perma.cc/HH4K-QXJH]. It is obvious from passages like this, as well as direct citations, that Bluntschli was influenced by Kant. See, e.g., id. at 188 n.7.

100. Property had the wrong object in mind (it cared about any owner of a thing instead of the individual author). Id. at 188–89, 188 n.7.

101. Id. at 191–92.

102. Id. at 192. Authors’ rights “arise from the act of authorship.” Id. at 199.

103. Id. at 192.

104. Id. at 199.

105. These are described in David A. Simon, Analogies in IP: Moral Rights, 21 Yale J.L. & Tech. 337, 377–80 (2019).

106. Bluntschli On Authors’ Rights, Munich (1853), supra note 99, at 189.

107. Id. at 210. Examples include reprinting individual passages (so long as not excessive); including individual essays, poems, etc. in compilations (so long as not excessive); and translations of foreign works. Id.

108. Id. at 193–94.

109. Id.

110. Strömholm, Right of Privacy, supra note 27, at 27 n.17; see Rigamonti, Moral Rights, supra note 21, at 163, 165–66.

111. Rigamonti, The Conceptual, supra note 21, at 101–02. Although he began his theorizing on moral rights quite narrowly (focusing only on the right of divulgation), he would later expand his ambit (to include attribution and integrity). Id.

112. See Morillot on the Author’s Right, Paris (1878), supra note 61, at 111, 113. This view also has implications for creativity. Morillot thought that the true spiritual creative act took place upon creation in the mind. Expressing the work, because it would necessarily be imperfect, meant it “has only a secondary creativity.” Id.

113. Id. at 114 (emphasis added).

114. Id. at 113. Moral rights scholars might both adhere to and reject different aspects of this view. They could believe that the author’s mental state determines how a work should be treated, but they do not view the work as entirely static and complete.

115. See Walter J. Ong, Orality and Literacy: The Technologizing of the Word 8 (Routledge 2002) (1982).

116. For why this may not be a correct description of the creative process, see, for example, David A. Simon, Culture, Creativity & Copyright, 29 Cardozo Arts & Ent. L.J. 279, 304, 307 (2011), and Ong, supra note 115, at 7.

117. Because a work exists only in the mind, the author has total dominion over the work. Yet, legal ownership is impossible. See Morillot on the Author’s Right, Paris (1878), supra note 61, at 113. The reason? For Morillot, ownership implies a property relation. And it is impossible, on his view, that a creator could own himself, a conclusion that would follow from owning the work. Id. This holds even after the author expresses the idea. She can own only the material representation; the idea remains forever in the author’s mind. Id.

118. Id. at 124.

119. Id.

120. Although like Bluntschli’s description of the author’s relation to the work (as an expression or revelation), Bluntschli: On Authors’ Rights, Munich (1853), supra note 99, at 191–92, Morillot’s was slightly different (extension of the author), Morillot on the Author’s Right, Paris (1878), supra note 61, at 124.

121. See Morillot on the Author’s Right, Paris (1878), supra note 61, at 124.

122. Id.

123. Id. at 125. This was also the view of other French scholars such as Plaisant. Saunders, supra note 21, at 31.

124. Morillot on the Author’s Right, Paris (1878), supra note 61, at 125.

125. Rigamonti, Moral Rights, supra note 21, at 158.

126. Morillot on the Author’s Right, Paris (1878), supra note 61, at 125.

127. Id.

128. Id.

129. Id.

130. Id.

131. Id.

132. Several readings are possible. One might mean a distortion of the author’s vision or conception as embodied in the expression. On this reading, faulty presentation of an expression damages the purity of the author’s relation to her work. Assume the author’s painting of the cathedral is meant to revere and praise the Holy Order and its clergy. A similar painting of the cathedral that depicted clerical greed, for example, would be a view other than the author’s. The purity of the author’s work has been damaged; a vision of the work different from the author’s has been presented. Even on this reading, however, it is hard to see how this harms the author’s person, rather than others’ perception(s) of her social self. Simon, Copyright and the Social Self, supra note 3, at 773, 779.

133. Morillot on the Author’s Right, Paris (1878), supra note 61, at 125.

134. See supra Section III.A.1.

135. This is discussed in Parts III and IV.

136. Morillot on the Author’s Right, Paris (1878), supra note 61, at 129–30.

137. Rigamonti, Moral Rights, supra note 21, at 164, 166–68; Damich, supra note 55, at 29 (stating that Morillot “was the first to consciously use the term droit moral in a technical sense” in 1878). For some examples of his influence on French law, see Code de la Proprété Intellectuelle [C.P.I.] [Intellectual Property Code] art. L111-2 (Fr.) (“The work is deemed to be created, independently of any public disclosure, by the sole fact of the realization, even unfinished, of the author’s conception.”); André Françon & Jane C. Ginsburg, Authors’ Rights in France: The Moral Right of the Creator of a Commissioned Work to Compel the Commissioning Party to Complete the Work, 9 Colum.- J.L. & Arts 381, 385–86 (1985) (citing Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Paris, Mar. 23, 1977, Cour d’appel [CA] [regional court of appeal] Paris, June 2, 1978 (Debuffet c. Régie Nationales des Usines Renault) (Fr.); Cour de Cassation [Cass.] [supreme court for judicial matters], 8 Jan. 1980, RIDA 1980, 104 (Fr.); Cour d’appel [CA] [regional court of appeal] Versailles, July 8, 1981, RIDA 1981, 110 (Fr.) (holding that an artist had a right to prevent destruction and finish the work that was to be erected on the property of an automaker, who decided it no longer wanted it, halted construction, and began dismantling it); Stina Teilmann, Justifications for Copyright: The Evolution of le droit moral, in 1 New Directions in Copyright Law 73, 82–83 (Fiona MacMillan ed., 2005).

138. Damich, supra note 55, at 29. The exact moment these legal rights attach is not clear, but Morillot’s writing support this interpretation. Morillot speaks of “the author’s setting down and publishing a work” as the moment of legal protection, but also uses for support of moral rights the historical punishment of “plagiarism,” which, broadly speaking, does not require publication. Morillot on the Author’s Right, Paris (1878), supra note 61, at 126. Shortly after this discussion, he speaks of “setting down or publication,” which seems to be consistent with the idea that moral rights exist from the moment of expression (i.e., they do not require publication). Id. (emphasis added).

139. Morillot on the Author’s Right, Paris (1878), supra note 61, at 128, 130.

140. Id. at 117, 121, 128. Morillot based this opinion partly on his belief that no European legislature would ever enact such a provision. It also stemmed from his rejecting the idea that authors’ rights were property rights; if they were property rights, they had to be perpetual. Morillot thought they were something different. Id. at 117–18.

141. Roscoe Pound, Interests of Personality, 28 Harv. L. Rev. 344, 346–49 (1915).

142. Strömholm, Right of Privacy, supra note 27, at 54.

143. See, e.g., Herbert Spencer, Justice 108–09 (1891); Pound, supra note 141, at 353–54.

144. Pound, supra note 141, at 351–54.

145. See Saunders, supra note 21, at 78.

146. Strömholm, Right of Privacy, supra note 27, at 56–58 (citing H.C. Nipperdey, Das allgemeine Persönlichkeitsrecht, 30 UFITA 1–29 (1960) (a short but very complete survey of modern German law, discussing the German “right[s] of the personality”).

147. See id. at 55 (citing Heinrich Hubmann, Das Persönlichkeitscrecht 123 (1953) (most complete modern German monograph)).

148. Not all approaches to moral rights—either inductive or deductive—rely on the personality tradition. For example, focusing instead on Kant’s attempt to structure a society in which thinking flourishes, some recent scholars interpret authors’ rights as an operational part of this communicative framework. E.g., Barron, supra, note 50 at 25–26; Laura Biron, Public Reason, Communication and Intellectual Property, in New Frontiers in the Philosophy of Intellectual Property 228 (Annabelle Lever ed., 2012); Maria Chiara Pievatolo, Publicness and Private Intellectual Property in Kant’s Political Thought (Nov. 11, 2005, 19:37), http://bfp.sp.unipi.it/~pievatolo/lm/kantbraz.html [https://perma.cc/6V5E-NF4T] (presented at the 10th International Kant Congress); Maria Chiara Pievatolo, Freedom, Ownership and Copyright: Why Does Kant Reject the Concept of Intellectual Property?, The Italian Soc’y of Pol. Phil. (July 2, 2010), https://sifp.it/archivi/freedom-ownership-and-copyright/ [https://perma.cc/2UHX-FAMJ]; Kim Treiger-Bar-Am, Kant on Copyright: Rights of Transformative Authorship, 25 Cardozo Arts & Ent. L.J. 1059, 1067 (2008); see also Abraham Drassinower, Copyright Infringement as Compelled Speech, in New Frontiers in the Philosophy of Intellectual Property 205–07 (Annabelle Lever ed., 2012). But see Merges, supra note 50, at 72–83. Christopher Yoo has recently advanced a moral rights theory based on personal development through creative play. Christopher S. Yoo, Rethinking Copyright and Personhood, 2019 U. Ill. L. Rev. 1039, 1077 (2019).

149. . See supra Part III.

150. . Gareis: Juridical, supra note 65, at 188.

151. Another author who argues for moral rights from a philosophical perspective, though one that doesn’t focus on personality as such, is Ilhyung Lee. Ilhyung Lee, Toward an American Moral Rights in Copyright, 58 Wash. & Lee L. Rev. 795, 854 (2001). Robert Merges seems to think a grander “midlevel” principle of dignity grounds moral rights claims, and IP more generally. Merges, supra note 50, at 156–58.

152. See Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287, 330 (1988) [hereinafter Hughes, Philosophy of IP].

153. Compare id. (explaining that the personality justification posits that rights are derived from the concept of personality), with Radin, supra note 31, at 1892–95 (interpreting Hegel’s theory of personality by claiming that rights are developed from a person’s will), and Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 959 (1982) [hereinafter Radin, Property and Personhood] (elaborating on the link between personal value and the concept of personality).

154. The law professor with the most forceful argument against this, one supported by several other philosophical readings, is found in Jeanne L. Schroeder, Unnatural Rights: Hegel and Intellectual Property, 60 U. Mia. L. Rev. 453, 458–60 (2006). For a more recent argument in a similar vein see Cairns, supra note 36, at 513–15, 523; Allen W. Wood, Introduction to G. W. F. Hegel, Elements of the Philosophy of Right, at xii–xvi (Allen W. Wood, ed., H. B. Nisbet trans., 1991). For those following this reading, see Michael Spence, Justifying Copyright, in Dear Images: Art, Copyright, and Culture 389, 399–400 (Daniel McClean & Karsten Schubert eds., 2002); Thomas Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. Rev. 1, 9 (1997); Peter Drahos, A Philosophy of Intellectual Property 88 (1996); Stewart E. Sterk, Rhetoric and Reality in Copyright Law, 94 Mich. L. Rev. 1197, 1240 (1996).

155. Hughes, Philosophy of IP, supra note 152, at 338. The arguments constructed here are drawn from two of Hughes’s papers, published ten years apart. See generally id. (published in 1988); Justin Hughes, The Personality Interest of Artists and Inventors in Intellectual Property, 16 Cardozo Arts & Ent. L.J. (1998) [hereinafter Hughes, Personality Interests] (published in 1998). To some extent, I am reading the arguments in tandem, and Hughes may not endorse this reading.

156. After all, Radin’s perspective was concerned with where the object ended up, not from whence it came. Radin, Property and Personhood, supra note 153, at 987.

157. Hughes, Personality Interests, supra note 155, at 81, 86–87.

158. Hughes, Philosophy of IP, supra note 152, at 344.

159. Hughes, Personality Interests, supra note 155, at 162–63.

160. When discussing the implications of Hegel’s work, Hughes describes a similar personality interest: expression. This means a situation where the creator expresses her personality or will in the work. Hughes, Philosophy of IP, supra note 152, at 343.

161. Here Hughes means purposeful actions, not the study of mental states. See Intentionality, Stan. Encyclopedia Phil., (Feb. 7, 2023), https://plato.stanford.edu/entries/intentionality/ [https://perma.cc/5PEW-NZWU]. But see Hughes, Personality Interests, supra note 155, at 141.

162. Hughes, Personality Interests, supra note 155, at 141.

163. Id. at 163.

164. When discussing the implications of Hegel, Hughes described two personality interests. The first was expression. See supra note 160. But the second was source identification, where the creator seeks to identify or relate her personality with the object in which some of her personality is invested. Hughes, Philosophy of IP, supra note 152, at 343. Here we might think of a new surgical instrument; the inventor wishes to be known as the inventor of that surgical instrument. A non-IP example could be the university one attended; the alumna wants to be known as a graduate of that university. Thus, for Hughes, it is the object, subject, and relation between them that is important. Id. at 344.

165. See Strömholm, Right of Privacy, supra note 27, 29.

166. Hughes, Personality Interests, supra note 155, at 168.

167. Hughes, Philosophy of IP, supra note 152, at 347.

168. Id. at 348 (emphasis added).

169. Id. at 349–50. Others have taken the position that this misreads Hegel, who thought that a copyright was freely alienable as all other external property. Cotter, supra note 154, at 9; Schroeder, supra note 154, at 476; Drahos, supra note 154, at 80; Sterk, supra note 154, at 1240–43.

170. Alienation is not merely for economic purposes; it can facilitate the recognition necessary for personhood in the form of “respect, honor, and admiration.” Hughes, Philosophy of IP, supra note 152, at 350.

171. For some choice words, see generally 2 Arthur Schopenhauer, The World as Will and Idea (R.B. Haldane & J. Kemp trans., 6th ed. 2012) (ebook).

172. Hughes, Philosophy of IP, supra note 152, at 343.

173. Id. at 344.

174. Id.

175. Hughes, Personality Interests, supra note 155, at 88–89.

176. On one relevant aspect of the difference, see Patrick Goold & David A. Simon, Lucky IP, 42 Oxford J. Legal Stud. 843, 863–64 (2022).

177. One wonders whether Hughes’s equation (more constraints = less personality) is correct. Could it be that some selves are just composed more of equations, maths, and experiments than others? What may be happening here is a desire to square a feeling about what kinds of selves count with a theory, rather than the other way around. For further discussion, see supra Section III.B.2.

178. Netanel, supra note 29, at 374.

179. Despite this difference, Netanel notes that moral rights have been justified by one central idea found in both Kant and Hegel: the author’s personal connection to her work. Id. at 376–77.

180. Id. at 376.

181. Saunders, supra note 21, at 118; See Morillot on the Author’s Right, Paris (1878), supra note 61, at 113.

182. Netanel, supra note 29, at 374 (quoting Immanuel Kant, Von der Unrechtmässigkeit des Büchernachdruckes, in Immanuel Kants Werke 221 n.1 (Ernst Cassirer ed., 1913)).

183. Id. at 375 (noting rights to author’s thought); Treiger-Bar-Am, supra note 148, at 1067.

184. Treiger-Bar-Am, supra note 148, at 1074.

185. Neil Netanel, Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, 12 Cardozo Arts & Ent. L.J. 1, 17 (1994); see John Christman, Autonomy, Social Selves, and Intellectual Property Claims, in New Frontiers in the Philosophy of Intellectual Property 46 (Annabelle Lever ed., 2012).

186. Netanel, supra note 185, at 6–7. In some sense, this term can be interpreted in the way Radin and Hughes use the term “personhood.” Both use the term to refer to some fundamental aspect of being a human that is necessary for a full and complete life. See Stephen J. Schnably, Property and Pragmatism: A Critique of Radin’s Theory of Property and Personhood, 45 Stan. L. Rev. 347, 354–55 (1993); Hughes, Personality Interest, supra note 155, at 180.

187. See supra Section II.B.

188. Commentary on: Gareis: The Juridical Nature of Author’s Right, supra note 82, at 194.

189. Netanel, supra note 29, at 401–02.

190. Id. at 402.

191. Id. He notes that imitation of another’s expression is not inauthentic per se. Rather, it is just not as expressive—it has less “potential for self-realization”—than “original expression.” Id.

192. Id. at 412–15. Netanel offers a separate, autonomy-based argument for continuing control of the work. Id. at 403.

193. Id. at 409–30; see also, e.g., John Henry Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1023, 1043–44 (1976).

194. Netanel, supra note 29, at 413–14.

195. Id. at 350–51. This is a function of Netanel’s approach rather than a criticism of his work.

196. Sarraute, supra note 23, at 465.

197. Personality is also sometimes swapped seamlessly for dignity or privacy. Lee, supra note 151, at 824–25 (discussing a dignity-based approach). For use of the concept in privacy, see Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 971 (1964); Robert C. Post, The Social Foundations of Privacy: Community and Self in the Common Law Tort, 77 Cal. L. Rev. 957, 962 (1989); Charles Fried, Privacy, 77 Yale L.J. 475, 478 (1968); Louis D. Brandeis & Samuel D. Warren, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1891).

198. Stephen Munzer has described this idea as a theory of (but not full justification for) property. Stephen R. Munzer, A Theory of Property 61–62 (1990). He says that “the operative image is that property rights are [intentional] projections of the body that result from embodying the person into external things.” Id. at 67. What is this supposed to mean? Similar accounts can be found in early privacy literature discussing personality. See, e.g., D.B. Resnik, A Pluralistic Account of Intellectual Property, 46 J. Bus. Ethics 319, 326–27 (2003) (discussing Hegel and property).

199. In truth there are three, but one source is incomprehensible. Katz, supra note 15, at 390, 399 (quoting Smoschewer, Das Persönlichkeitsrecht im Allgemeinen und in Urcheberrecht, found in 3 L’Archiv für Urheber–Film–und Theaterrecht 135 (Germany 1930)) (stating personality “includes all those secrets of life and their formation into a substance or essence, which, though detached from the external world, and endowed with purely personal characteristics, remains, nevertheless deeply affected by action in the external world”).

200. Id. at 399–400.

201. Id. at 400. See also Hansmann & Santilli, supra note 4, at 102, 110 (discussing why inventors do not receive moral rights, and arguing that “personal identity” may do some lifting: “A plausible justification for this distinction between inventors and artists is that the marketability of an invention has little relationship to the personal identity of the inventor and, in particular, to the other items that the inventor has patented.” (emphasis added)).

202. Katz, supra note 15, at 381.

203. Id. at 401.

204. . John Henry Merryman et al., Law, Ethics and the Visual Arts 423 (5th ed. 2007).

205. Roberta Rosenthal Kwall, “Author-Stories:” Narrative’s Implications for Moral Rights and Copyright’s Joint Authorship Doctrine, 75 S. Cal. L. Rev. 1, 23 (2001); Susan P. Liemer, Understanding Artists’ Moral Rights: A Primer, 7 B.U. Pub. Int. L.J. 41, 45 (1998).

206. Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554, 557 (1940) (“When an artist creates . . . he does more than bring into the world a unique object having only exploitive possibilities; he projects into the world part of his personality and subjects it to the ravages of public use.”); e.g., Damich, supra note 55, at 4 (“[W]orks of art are expressions of the creative personality of the author.”).

207. See Lee, supra note 151, at 840 (accepting “the view that the created work reflects the author’s person and personality” but not defining either and arguing for a dignity-based approach to justify moral rights). See generally 2 John Locke, An Essay Concerning Humane Understanding, Chapter 27 (1694); David Hume, A Treatise of Human Nature, pt. II, § VI (1739); Kathleen V. Wilkes, Real People: Personal Identity Without Thought Experiments (1988); Derek Parfit, Reasons and Persons (1984); John Perry, Personal Identity and the Self (1984).

208. Hughes’ account comes the closest by describing personality interests. See supra Section IV.A. But this is not an explanation of how the self manifests in the work.

209. Bloustein, supra note 197, at 1001.

210. Roeder, supra note 206, at 564 (“Moral rights . . . may not, therefore, be assigned; in general, however, they may be effectually waived before or after violation just as a blood donor, or boxer, waives his right against bodily injury.”); see Merryman et. al., supra note 204, at 422; see also Kwall, supra note 205, at 24 (quoting Edward J. Damich, The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors, 23 Ga. L. Rev. 1, 4 (1988)); Liemer, supra note 205, at 43.

211. Kwall, supra note 205, at 24.

212. Beyer, supra note 17, at 1091. The point is a good one, though it is not clear what “objective harm” is supposed to mean. The law attempts to correct for “emotional” harms, and other harms, such as “pain” which are not “objective” in the sense that Beyer uses the term here. See Restatement (Third) of Torts: Remedies § 20 (Am. L. Inst., Tentative Draft No. 2, 2023).

213. Interests, even personal interests, can be violated by damaging a thing or another. But that is not the issue. Personality theorists must explain how (1) this harms “personality,” which (2) justifies legal protection.

214. This was the view of H. Desbois, who described two authorial interests, one being purely intellectual—these are “preoccupations, scruples, [and] regrets” accompanied by a work that “betrays [the author’s] ideal[s].” Saunders, supra 21, at 95 (quoting Henri Desbois, Le droit d’auteur en France 276 (3d ed., London: Nonesuch Press 1978)).

215. Katz, supra note 15, at 404, 406.

216. See Liemer, supra note 205, at 43–44. Simon Stokes parrots Merryman and Elsen nearly exactly. He endorses both the investment rationale and the Merryman-Elsen tripart scheme of harms. For some, he says, “the personality of artists as expressed in their creations benefits from protection as a propriety [moral] right.” Simon Stokes, Art and Copyright 65 (2003); Merryman et. al., supra note 204, at 422–23. But, he notes, personality may also mean something like “particular meaning[]” over which the artist alone should have control. Stokes, supra, at 65 (quoting L.A. Byer, Intentionalism, Art, and the Suppression of Innovation: Film Colorization and the Philosophy of Moral Rights, 82 N.W.U. L. Rev. 1011, 1027 (1988)). On this view, personality means something like the “inner self.” Following Merryman and Elsen, he says that “[t]o mistreat the work of art is to mistreat the artist, to invade his privacy and impair his personality.” Id. So Stokes adds one additional interest—control over meaning—but doesn’t explain the basis for that control. Id.

217. Kwall, supra note 205, at 5, 15, 23, 25. Kwall does not explain in what “dignity” consists. Id. at 5. Some have even tried to analyze moral rights in terms of economics and incentives. See generally Lindsey A. Mills, Moral Rights: Well-Intentioned Protection and Its Unintended Consequences, 90 Tex. L. Rev. 443 (2011); Hansmann & Santilli, supra note 4. Others note that, although not focused on economics, they may have an economic effect. Liemer, supra note 205, at 55–56.

218. See Katz, supra note 15, at 404–05.

219. See Roeder, supra note 206, at 557.

220. Kwall, supra note 205, at 18–19.

221. See Damich, supra note 55, at 8; Kwall, supra note 205, at 23–24, 23 n.99. Roeder seems to do the same for the right to create (or not). See Roeder, supra note 206, at 557.

222. Damich, supra note 55, at 8.

223. Kwall, supra note 205, at 23.

224. Liemer, supra note 205, at 53–54.

225. See Kant, Wrongfulness, supra note 47, at 35.

226. See Roeder, supra note 206, at 561–62.

227. Damich, supra note 55, at 4.

228. Id. at 14 (“This focus highlights the purpose of personal rights: protecting the work as a projection of the author’s personality.”); Liemer, supra note 205, at 47–49; Kwall, supra note 205, at 12–13, 15, 22–23; see Katz, supra note 15, at 387. Despite the apparent similarity with Kant, Damich’s conception is too individualistic to fit into Kant’s theory of communication. See Kant, Wrongfulness, supra note 47, at 35.

229. Sterk, supra note 154, at 1239. Yet on Sterk’s view, personality rights are about Hegelian property—and so do not lend support to moral rights. See id. at 1240.

230. An example of noneconomic harm Roeder provides is publishing works “in a manner harmful to [the artist’s] honor and reputation as creator.” Roeder, supra note 206, at 557. As to the right against excessive criticism, Roeder offers neither legal nor philosophical justification; he merely asserts its existence. Id. at 572.

231. Liemer, supra note 205, at 50–51.

232. Id. at 50.

233. Damich, supra note 55, at 15.

234. Kwall, supra note 205, at 23.

235. It does seem that at some point in any moral rights framework, rights and interests are weighed against one another. Perhaps not all theorists engage in this explicitly, but most are aware that personality interests are not a universal trump card.

236. Mere disagreement over the content of a concept of course, does not necessarily render the concept unintelligible or vapid. But when scholars cannot articulate the basic features of a concept, the fact that they employ diverse and opaque conceptions should give us pause.

237. Spence, supra note 154, at 399.

238. Beitz, supra note 16, at 335, 343–44, 351.

239. Id. at 340.

240. See generally Simon, Copyright and the Social Self, supra note 3.

241. Fisher, supra note 10, at 191.

242. Id. at 189–90.

243. Ladas thought these “three” rights could be broken down into at least five: the right to create; the right to communicate; the right to modify; the right to withdraw; and the right to destroy. Ladas, supra note 60, at 594.

244. Katz, supra note 15, at 390–91. This, he argues, means that no one definition of the term moral rights exists; instead, definitions matter only as to the scope of the right (which presumably is a matter of preference). Id. at 390–99.

245. Fisher, supra note 10, at 190–92.

246. Id.

247. See generally Restatement (Second) of Torts (Am L. Inst. 1965).

248. The law’s recognition of a harm, of course, is not a justification for that recognition. The law may be wrong to recognize moral rights at all, or it may be wrong because it doesn’t recognize them in strong enough form.

249. See generally Restatement (Second) of Torts (Am. L. Inst. 1965); William L. Prosser, Handbook of the Law of Torts 32 (3d ed. 1964). Sometimes even third parties may have claims when others negligently cause them purely emotional harms. E.g., Dillon v. Legg, 441 P.2d 912, 924–25 (Cal. 1968); see also Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 549 (1994) (applying the zone of danger test in the context of a federal statute and noting the split among states between the zone of danger test and the Dillon rule).

250. Mass. Museum of Contemp. Art Found., Inc. v. Büchel, 593 F.3d 38, 46–49 (1st Cir. 2010) (discussing the actions of the Museum in covering Buchel’s work with a tarpaulin).

251. Examples include assault, intentional infliction of emotional distress, and negligent infliction of emotional distress. E.g., Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex. 1967) (assault); Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292, 294 (Colo. App. 1982) (intentional infliction of emotional distress); Robb v. Pa. R.R. Co., 210 A.2d 709, 709 (Dela. 1965) (zone of danger).

252. The conduct must also be outrageous. See, e.g., Peltier v. Sacks, 328 F. Supp. 3d 1170, 1183–84 (W.D. Wash. 2018) (holding removal of a painting from an art exhibition after receiving complaints about the artist was not extreme, atrocious, or utterly intolerable conduct, and did not meet the outrage standard).

253. It may recognize the harm independent of any knowledge of special susceptibility.

254. Pickford v. Masion, 98 P.3d 1232, 1235 (Wash. Ct. App. 2004) (holding that sentimental value was not a factor to consider for extending liability for injury to a pet); cf. Womack v. Von Rardon, 135 P.3d 542, 546 (Wash. Ct. App. 2006) (allowing recovery for emotional harm resulting from “malicious injury” of a pet). Exceptions to the rule are narrow and involve damage to a unique physical object coupled with further wrongful intent (like maliciousness or fraud). E.g., Schroeder v. Auto Driveaway Co., 523 P.2d 662, 671 (Cal. 1974) (malice, fraud, or oppression). Sometimes they involve both malice and harm to pets. Plotnik v. Meihaus, 146 Cal. Rptr. 3d 585, 600–01 (Cal. Ct. App. 2012) (emotional damages recovery for trespass to chattel (dog)). See also Restatement (Second) of Torts § 927 cmt. m (Am. L. Inst. 1979) (suggesting emotional harm may be recoverable when deprivation of property results in “humiliat[ion]”).

255. E.g., Petty v. Chrysler Corp., 799 N.E.2d 432, 443 (Ill. App. Ct. 2003) (“[M]ental suffering and distress could be expected and constitute actual damages in misappropriation of identity cases.”).

256. Restatement (Second) of Torts § 911 cmt. e (Am. L. Inst. 1979). Punitive damages may be awarded in cases where property is “wantonly destroyed.” Id. Here, section 911 is somewhat in tension with section 927.

257. Restatement (Second) of Torts § 46 cmt. b (Am. L. Inst. 1965). For a dignitary conception of this tort, see generally Stephen D. Sugarman & Caitlin Boucher, Re-Imagining the Dignitary Torts, 14 J. Tort L. 101 (2021). Even on a dignitary conception, the limits on this tort are still cabined as described.

258. The exceptions for emotional harm generated by damage to property involve some wrongful intent beyond mere intentional destruction. See supra notes 251–56 and accompanying text.

259. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964); Restatement (Second) of Torts § 558 (Am. L. Inst. 1977).

260. Restatement (Second) of Torts § 621 (Am. L. Inst. 1977) (limiting recoverable damages to proven, actual harm).

261. While it is possible to imagine cases where a use might be considered a statement about the author, most uses seem to represent a different category of communication altogether.

262. An objectivity component is still possible, as explained infra in Section V.B.

263. Hughes, Personality Interests, supra note 155, at 180.

264. Recent advances in artificial intelligence and machine learning may change this assumption.

265. For a self-centered approach, albeit a social one, see generally Simon, Copyright and the Social Self, supra note 3.

266. Martin v. Herzog, 126 N.E. 814, 816 (1920) (Cardozo, J.) (quoting Frederick Pollock, The Law of Torts 472 (10th ed. 1916)).

267. A use might also act as a market substitute, but that is an economic harm already addressed by copyright law. See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 566–69 (1985).

268. Beyer, supra note 17, at 1108.

269. See, e.g., Treiger-Bar-Am, supra note 148, at 1091–92.

270. Ozzy Osbourne (@OzzyOsbourne), X (Feb. 9, 2024, 5:37 PM), https://x.com/OzzyOsbourne/status/1756100047056564602?s=20 [https://perma.cc/SQ4W-YM27].

271. Even the Berne Convention, which helped to codify moral rights around the globe, extends protection “to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to [the author’s] honor or reputation.” Berne, supra note 3, at arts. 1, 6bis(1) (emphasis added). Its net is wider, however, including “honor” and a variety of actions that may harm reputation that may not be justified, for reasons discussed. Of course, questions of source raise questions of agency and free will. See Goold & Simon, supra note 176, at 865, 868. While these questions are outside the scope of this Article, they present a potential challenge to a regime grounded on source-based interests.

272. The connection may be stronger or weaker depending on the work and how one broadly or narrowly one conceives of intentionality. For example, a painting may be recognized as masterful independent of the author’s intentional stance; but the artist’s intentional stance can be construed to include the things she intended to do that made the work great. Perhaps here what ties attribution and intentionality is creativity interests.

273. . Commentary on: Gareis: The Juridical Nature of Author’s Rights, supra note 82, at 195.

274. This may not be the only purpose. The authors may also care about being recognized because it makes them feel good or shows them “respect.”

275. See Restatement (Second) of Torts § 558 (Am. L. Inst. 1977). Facts are slippery, no doubt, but they are different from interpretations of facts or other kinds of expressive communication. See Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990) (holding opinions can give rise to defamation when they reasonably imply false and defamatory facts).

276. . Restatement (Second) of Torts §§ 21, 46 (Am. L. Inst. 1965).

277. See supra note 260 and accompanying text. This is true in trademark as well, where source confusion is a subjective inquiry but coupled with a reasonable person standard to inject some objectivity. See, e.g., In re I.AM.Symbolic, LLC, 866 F.3d 1315, 1319, 1322 (Fed. Cir. 2017).

278. Restatement (Second) of Torts § 18 cmt. c (Am. L. Inst. 1965) (defining offensive contacts); see also I.AM.Symbolic, LLC, 866 F.3d at 1319, 1322.

279. For the standard in U.S. law, see 17 U.S.C. § 106A. There is some dispute about whether U.S. law requires a showing of reputational injury. Compare Canilao v. City Com. Invs., LLC, 613 F. Supp. 3d 1236, 1251 n.1 (N.D. Cal. 2022) (stating plaintiff need not plead reputational injury because violation of the right is the injury), with Kerson v. Vt. L. Sch., Inc., 79 F.4th 257, 269 (2d Cir. 2023) (requiring that “there be both (1) an intentional distortion, mutilation, or other modification to a work and (2) prejudice to an artist’s honor or reputation as a consequence thereof.”).

280. Robert G. Bone, Hunting Goodwill: A History of the Concept of Goodwill in Trademark Law, 86 B.U. L. Rev. 547, 555–56 (2006).

281. E.g., 15 U.S.C. § 1125(c).

282. Multi Time Mach., Inc. v. Amazon.com, Inc., 804 F.3d 930, 935 (9th Cir. 2015).

283. E.g., Ty Inc. v. Perryman, 306 F.3d 509, 510 (7th Cir. 2002). Perhaps a notable exception is the cause of action for blurring by tarnishment. 15 U.S.C. § 1125(c)(2)(C).

284. Xiyin Tang, The Artist as Brand: Toward a Trademark Conception of Moral Rights, 122 Yale L.J. 218, 254 (2012).

285. Id. at 234.

286. See William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law 259 (2003).

287. Tang, supra note 284, at 235.

288. Countries implementing Berne have taken a practical approach to implementing it, carving out various works from certain protections. In the United Kingdom, for example, the law explicitly denies the computer programmer the right of attribution and the right to object to the work’s derogatory treatment. Copyright, Designs and Patents Act 1988, c. 4, §§ 79(2)(a), 81(2) (U.K.). In the United States, by contrast, the law does not explicitly deny these rights, but excludes them by definition (i.e., computer works are not covered). See 17 U.S.C. §§ 101, 106A.

289. Hughes, Philosophy of IP, supra note 152, at 342–43; see also Hughes, Personality Interests, supra note 155, at 157.

290. Hughes, Philosophy of IP, supra note 152, at 342–43.

291. Id.

292. David Comberg, Kurt Vonnegut on the Shapes of Stories, at 4:31, YouTube (Oct. 30, 2010), https://www.youtube.com/watch?v=oP3c1h8v2ZQ [https://perma.cc/BYH7-Y2BB]. Vonnegut actually submitted a thesis on the eight shapes of stories to the University of Chicago anthropology department, which rejected it. Stephen Johnson, Kurt Vonnegut on the 8 “Shapes” of Stories, Big Think (June 13, 2022), https://bigthink.com/high-culture/vonnegut-shapes/ [https://perma.cc/8HFU-PR8S].

293. See, e.g., Jonas Holmgren, George Orwell, The Freedom of the Press, Orwell’s Proposed Preface to Animal Farm, 1945, Marxists Internet Archive, https://www.marxists.org/archive/orwell/1945/preface.htm [https://perma.cc/4D5L-M87G] (last visited Mar. 6, 2024).

294. The SynthAxeDrumitar is a “guitar synthesizer . . . customized to play drum and percussion” by Roy Wilfred Wooten, also known as Future Man. Future Man, Wikipedia (Oct. 24, 2023, 8:34 PM), https://en.wikipedia.org/w/index.php?title=Future_Man&oldid=1181722189 [https://perma.cc/FSB4-Z2ZU].

295. Stewart Oksenhorn, Roy Wooten: Drummer of Invention, Aspen Times (Jan. 31, 2007), https://www.aspentimes.com/news/roy-wooten-drummer-of-invention/ [https://perma.cc/ULN7-TCCD]

296. Pound, supra note 141, at 354.

297. See text accompanying notes 277–81.

298. Gregory P. Stone, Appearance and the Self, in Human Behavior and Social Processes 86, 93 (Arnold M. Rose ed.,1962).