The Risks of Contracts That Require Illustrators “Not to Exercise Moral Rights”
- MORI Ryuichiro
- May 22
- 11 min read
(This lecture is written based on the circumstances of the illustration industry in Japan and on Japanese law.)
There is something I want as many illustrators as possible to know.
What I want you to know is this:
Contracts that require you “not to exercise moral rights” carry the risk that your illustration may be used in ways that damage your honor or reputation, such as in adult-oriented services.
For example, let’s say you are an illustrator, and Company A commissions you to create a serious-themed illustration of a woman wearing clothes.
If the contract were one involving both a copyright transfer and a waiver of the exercise of moral rights, Company A could, without your knowledge, alter that illustration so that the woman appears completely naked and use it in an adult game.
You might think, “That would never happen!”
But in fact, there has been a case very close to this.
“A handsome character from an otome game becomes a ‘beast’ in an erotic game: Female manga artist files angry lawsuit”http://www.sankei.com/west/news/160523/wst1605230007-n1.html
Judging from this article, I would assume that in this case, there was probably no agreement not to exercise moral rights.
If the manga artist had been unable to exercise moral rights in general, including the right of integrity and the right to preserve honor and reputation, the lawsuit may have been even more difficult for her.
I am writing this article so that you do not suffer this kind of harm.
I sincerely hope this information reaches as many illustrators as possible.
An Explanation of Moral Rights
Moral rights are generally said to consist mainly of the following four rights. There are others as well, but these four are probably the most important.
The right of disclosure — Article 18 of the Copyright Act
The right of attribution — Article 19 of the Copyright Act
The right of integrity — Article 20 of the Copyright Act
The right to preserve honor and reputation — Article 113, Paragraph 6 of the Copyright Act
The first, the “right of disclosure,” is the right to make an unpublished work public.
Illustrators have the right to decide when and in what form their work will be made public.
For example, a novelist may entrust a work to an editor and say, “I would like this work to be published after my death.”
Occasionally, I see illustrators mistakenly understand the “right of disclosure” as “the right to publish a work in some kind of medium.”
I have also seen people online say that “if you sign a contract with a clause not to exercise moral rights, you will not even be able to post the work on your own website or social media.”
This is incorrect.
The “right of disclosure” is the right to make a work public for the first time when it has not yet been released to the world.
If you have not transferred the copyright, and have only signed an agreement not to exercise moral rights, then you may post the work on your own website, social media, and so on as part of your portfolio.
However, there may also be contracts that prohibit you from posting the work in such media. In that case, you cannot freely publish it.
The second, the “right of attribution,” is the right to decide what name will be displayed when the work is made public, whether that is your real name, stage name, pen name, or whether no name will be displayed at all.
The third, the “right of integrity,” is the right not to have your work modified or altered without permission.
For many illustrators, their work is like an extension of themselves.
They put their emotions and thoughts into it.
In many cases, they feel strong resistance to having changes made to it for someone else’s convenience.
This right protects those feelings of the illustrator.
The fourth, the “right to preserve honor and reputation,” is the right to prohibit uses that damage the author’s honor or reputation.
Article 113, Paragraph 6 of the Copyright Act states that “an act of using a work in a manner prejudicial to the author’s honor or reputation shall be deemed to constitute an infringement of the author’s moral rights.”
For example, using a serious work of art in an adult-oriented service could be considered a use that damages the author’s honor or reputation.
What It Means to “Not Exercise Moral Rights”
A contract stating that the author will “not exercise moral rights” would mean that the illustrator cannot exercise these four rights.
If an illustrator cannot exercise the “right of attribution,” then, for example, even if someone credits the work under a completely different name, the illustrator would not be able to object.
Would you be comfortable if the name of the author of your work were changed to that of someone you do not know at all?
Unless it is a ghostwriting job, you would not want to sign such a contract.
If an illustrator cannot exercise the “right of integrity,” then even if a work created with heart and soul is significantly altered, the illustrator cannot object.
Few illustrators would welcome having the intent behind their work distorted.
With the development of AI, it is becoming easier to alter works.
For example, the following kinds of alterations could become possible:
・A serious-themed illustration of a clothed woman is altered into something indecent.・The face in a portrait is altered into the face of a cult leader.・An illustration with an anti-discrimination theme is altered into hateful content.・A work opposing nuclear power is altered into content praising nuclear power. The reverse could also happen.
If you still have the “right to preserve honor and reputation,” it is possible to stop uses that damage the author’s honor.
But if you are unable to exercise that right, you may not be able to object no matter what the work is used for.
Even if your work is used in an adult game, a cult religion, hate speech, or discrimination…
You may not be able to stop it.
Furthermore, if you have also signed a copyright transfer agreement, the work may be used in a wide range of products and services without the illustrator’s consent.
If Company A has bought out the copyright, it may even become possible for the company to alter the illustration into indecent content and use it without the illustrator’s consent in an adult game. (*Note 1)
Illustrators who are signing contracts stating that they will “not exercise moral rights”:
Are you signing after taking these risks into account?
Or are you signing casually, without fully understanding what the contract means?
Is It Really Necessary to Take Such Broad Rights Away from Illustrators?
Contracts stating that the author will “not exercise moral rights” seem to include rights that are far broader than what an ordinary company would need for its business.
I believe this is where the fundamental problem lies.
The main reasons why companies commissioning illustration want to include a “non-exercise of moral rights” clause in their contracts are probably the following three:
In the course of business, it may become necessary to crop the illustration.
It may become necessary to change some of the colors.
There may be cases where the illustrator’s name cannot be displayed.
If that is the case, there should be no need to take away the right to preserve honor and reputation.
If a company were to say, “No, we really do need to take that right away from the illustrator as well,” that would be frightening.
There should also be no need to credit another person as the author.
In general, there should be no need to remove a character’s clothing and alter the work into indecent content.
In the case of illustrators, there are probably very few occasions when the right of disclosure needs to be exercised, but there should still be no need to take that right away.
Moral rights are a broad category of rights.
Is it not strange for rights that are unnecessary for a company’s business to be taken away so casually?
I have read more than twenty books on copyright, but I have not found any that properly point out the problem that contracts not to exercise moral rights include an unnecessarily broad range of rights.
On the contrary, there are even books that claim to be “for creators” while including sample contracts that contain clauses requiring non-exercise of moral rights.
I feel a growing sense of alarm that books which may spread the misconception that “when illustrators take on work, it is normal to sign a contract not to exercise moral rights” are being sold openly.
I worked as an illustrator for more than 25 years, but I was never once asked to sign such a contract.
However, from around the mid-2010s, these kinds of contracts increasingly became a topic of discussion among my fellow illustrators.
I am writing this article out of concern that if things continue this way, the situation may become very serious.
Moral Rights Are Rights That Cannot Be Transferred
To begin with, moral rights are extremely important rights designed to protect the feelings and personal interests of creators, including illustrators.
For that reason, the law stipulates that they cannot be transferred.
And yet, in contracts requiring non-exercise of moral rights, the wording is manipulated so that, by saying “the author shall not exercise moral rights,” the result is effectively the same as having transferred those rights.
Why is this done?
If you search online, you will find the reason.
Many lawyers write that, in order to avoid the risk of being sued by illustrators for unauthorized alterations and similar issues, companies should include a non-exercise of moral rights clause in their contracts.
There are many cases where trouble arises between clients and illustrators because the illustration has been altered in a way the author did not intend. One famous example is the Hikonyan lawsuit.
Recently, various lawyers have begun saying that, in order to prevent companies, local governments, and others from being sued over disputes like the Hikonyan lawsuit, they should sign contracts in advance that require the illustrator not to exercise moral rights.
It saddens me that many lawyers seem to prioritize the convenience of powerful companies over the rights of illustrators, who are in a weaker position.
Illustrators, please think carefully about this.
Suppose a company wanted to avoid the risk of being sued for sexual harassment, power harassment, or violations of labor standards laws, and therefore asked all employees to sign a contract saying, “I will not exercise my rights as a worker” or “I will not exercise my basic human rights.”
Wouldn’t you think that was wrong?
I feel that contracts saying “I will not exercise moral rights” contain a similar kind of wrongness.
Whether a contract stating that the author will “not exercise moral rights” is valid is, in fact, a matter on which even experts are divided.
Moral rights are regarded as non-transferable precisely because they are important to creators.
Some experts believe that using clever wording to produce an effect equivalent to transferring those rights should be considered invalid.
There is also a view that the non-exercise of only some moral rights is valid.
If you search online for “non-exercise of moral rights + validity,” you will find various opinions.
If you would like to know more, please look into it.
There was once a time when consumer finance companies charged interest rates in a legal gray zone.
I believe that the non-exercise of moral rights may also be considered a kind of legal gray zone that has not yet been fully settled.
Therefore, even if your work is used in a way that damages your honor as an illustrator, as in the example given at the beginning, it would be possible to argue in court that the contract not to exercise moral rights is invalid.
It may also be possible to argue that the non-exercise of moral rights clause does not extend to the right to preserve honor and reputation.
Or perhaps it may be possible to argue that it is invalid as an abuse of superior bargaining position. (*Note 2)
For illustrators who have already suffered this kind of harm, taking the matter to court may be one option.
However, there is no guarantee that you will win.
Moreover, litigation costs a great deal of money and can take a long time. The emotional burden is also likely to be very heavy. (*Note 3)
Do we illustrators have any reason to sign contracts that carry such risks?
There is no reason at all.
Solutions for Avoiding the Risk
Then what should we do?
Is it possible to respect the rights of illustrators while also allowing companies to proceed smoothly with their work?
I believe it is possible.
Here, I will propose a solution.
The reasons why companies and publishers want to include a “non-exercise of moral rights” clause in their contracts were mainly these three:
In the course of business, it may become necessary to crop the illustration.
It may become necessary to change some of the colors.
There may be cases where the illustrator’s name cannot be displayed.
In that case, rather than making moral rights as a whole subject to non-exercise, could the problem not be solved by using contract language such as the following?
Solution 1:Include in the contract that “the illustrator agrees to minor cropping to the extent that it does not impair the individuality of the work.”
Solution 2:If minor color changes are necessary, state that “the illustrator agrees to minor color changes to the extent that they do not impair the individuality of the work.”
Solution 3:In advertising, the illustrator’s name is often not displayed. Even in such cases, the contract should specify the situations in which the name will not be displayed, such as: “In advertising, the author’s name will not be displayed.”
In other words, the scope of non-exercise should be narrowly limited.
This should allow companies to use the work in the way they need in most cases, without causing problems.
Depending on the matter, there may be cases that cannot be fully addressed in this way.
Even then, by tailoring the wording of the contract to the specific situation, I believe it will usually be possible to avoid a broad non-exercise of moral rights clause.
For example, consider a case in which an illustrator is commissioned to create original artwork for animation.
In this case, because of the nature of the work, it is necessary for poses and facial expressions to change.
In such cases, one possible approach would be to agree that “the illustrator acknowledges that in the animation, the pose, facial expression, composition, cropping, colors, and other elements may be changed.”
If, due to the nature of the work, it is necessary to significantly alter the illustration, and the illustrator agrees to this, another possible wording would be:
“The illustrator agrees to alterations of the work.”
However, allowing excessively broad alterations involves risk.
It would be safer to add a sentence such as:
“However, in the case of extremely substantial alterations, the client shall consult with the illustrator.”
In this way, by aligning the nature of the work with your own wishes as the illustrator, I believe that in most cases it is possible to create a contract that both parties can accept.
Illustrators, when preparing a contract, please discuss thoroughly with the client what scope of alteration will be allowed.
Avoid signing casually.
A contract cannot be forced in any situation.
The basic principle is that both parties should coordinate and reconcile their wishes.
If you cannot agree with the contents, you are allowed to ask for revisions to the contract.
No matter how large the company is, and no matter how inexperienced you are, you do not have to sign exactly as you are told.
If a client asks you to sign a contract containing a “non-exercise of moral rights” clause, try asking:
“Why is it necessary to take away even my right to preserve honor and reputation? Is it really necessary to take such broad rights away?”
Many companies include these clauses in contracts without thinking deeply about this issue.
Several years ago, on a certain social media platform, I once asked a lawyer who had written a post that seemed to recommend illustrators entering into contracts with non-exercise of moral rights clauses:
“Why is it necessary to make such a broad range of rights subject to non-exercise?”
The lawyer kept changing the subject and never answered the question directly.
I realized that even some lawyers do not understand the essential problem here.
Therefore, it is understandable that people in ordinary companies may not know about it either.
Illustrators:
When signing a contract, please read it carefully, understand its contents, and think about it thoroughly.
If the contract says that you will “not exercise moral rights,” I recommend that you ask for the wording to be changed and negotiate.
You may also ask the client to read this page.
Among the member illustrators of Illustrators Tsushin, even when they are presented with contracts requiring non-exercise of moral rights, in many cases they have been able to have this clause changed through careful discussion with the client.
If you explain the illustrator’s position politely, many clients will understand.
They then proceed with the work while maintaining a good relationship.
Most clients are not asking for these contracts out of malice.
They simply do not realize that they are taking away more of the illustrator’s rights than necessary.
Please explain the matter carefully.
I believe they will understand.
Finally, the solutions proposed in this note were devised with various kinds of advice from our legal adviser.
I would like to take this opportunity to express my gratitude.
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