Moral Rights — Handling Rights That Cannot Be Transferred

A client who completed a full copyright assignment may receive notice from the contractor after delivery that they did not consent to modifications. The root of this problem lies in the way Japan's Copyright Act sharply distinguishes between copyright (economic rights) and moral rights, explicitly prohibiting the transfer of the latter.

The Copyright Act Article 59 states: "Moral rights of authors shall be exclusive to the author and may not be transferred." This single provision is the source of many practical disputes. Even if a contract states "all rights are transferred," moral rights alone remain with the author.

A Typical Dispute Scenario

Consider a website redesign project. A production company engaged a freelance designer and obtained a full copyright assignment. Three years later, the client underwent a brand refresh and significantly changed the logo and color scheme — at which point the designer objected, claiming that the change fundamentally altered the original design and constituted a violation of the right of integrity.

An author who no longer holds the copyright can still object to modifications — this paradoxical structure catches many clients off guard. Economic copyright and moral rights are fundamentally different in nature: the former deals with financial value, the latter protects the author's personal interests in the work.

Intersection with the Freelance Business Protection Act

Since the Act on the Proper Handling of Specified Consignment Business Between Businesses (Freelance Business Protection Act) came into force, both parties are required to clarify transaction terms in writing. The handling of moral rights is increasingly expected to be stated explicitly as one of those "transaction terms." Vague agreements made without written clarity now carry a higher legal risk of being overturned after the fact.

Moral rights are not a single right but a trio: the right of publication, the right of attribution, and the right of integrity. Their practical risks differ, so each must be understood separately.

Right of Publication (Article 18)

The right of publication allows the author to decide when and how an unpublished work will be made public. Publishing an unpublished work without the author's consent constitutes an infringement.

The most common practical issue arises when clients mistakenly believe that "since we paid for it, we can publish it." Even after a copyright assignment, publishing a work that the author has not yet consented to disclose can be problematic.

That said, an author who has assigned the copyright is presumed to have consented to publication (Article 18, Paragraph 2, Item 1). This presumption means disputes about the right of publication are relatively rare in practice, but edge cases — such as assigning copyright in draft-stage work while not authorizing its release — do occur.

Right of Attribution (Article 19)

The right of attribution allows the author to decide whether their name is displayed when the work is published, and under what name (real name, pen name, or anonymous).

Common practical issues include:

• Clients removing designer credits from websites as a matter of house style
• Credits being cut from multi-contributor content at the client's discretion
• Works published under a corporate brand name when the actual creator is an external freelancer

Omitting a credit that the author requested constitutes a violation of the right of attribution. An exception applies when display of the author's name would go against reasonable social practice given the nature and purpose of the work — for example, standard UI components or generic stock elements.

Right of Integrity (Article 20)

The right of integrity protects the work from modifications that go against the author's will. This is the moral right most frequently involved in disputes, and it also has the most ambiguous scope.

Whether a modification "goes against the author's will" depends on both the nature of the change and the author's subjective intent. Even minor changes can constitute infringement if the author strongly objects; conversely, substantial changes are permissible if the author has consented.

Article 20, Paragraph 2 explicitly permits the following modifications:

1. Addition, rebuilding, repair, or remodeling of an architectural work
2. Correction of bugs or enhancement of functionality in a computer program
3. Modifications made for school educational use
4. Other modifications recognized as unavoidable

The interpretation of "unavoidable modifications" is being shaped by case law, but clients who unilaterally decide that a change is "unavoidable" take on legal risk.

Moral rights cannot be transferred, but an author's promise not to exercise them — a waiver — is considered valid in Japan. In practice, such a clause is included alongside the copyright assignment provision.

Sample Waiver Clause

Article ○ (Non-Exercise of Moral Rights of Authors)
1. Party B (Contractor) shall not exercise moral rights of authors
   against Party A (Client) or any third party designated by Party A
   with respect to the deliverables.
2. The preceding paragraph shall not apply to uses that damage
   Party B's honor or reputation.
3. If Party B has engaged any third party in the project,
   Party B shall obtain the same waiver agreement from such
   third party.

The critical element here is Paragraph 2's carve-out. The general interpretation is that the right to act against uses damaging the author's honor or reputation cannot be waived even by contract. Article 113, Paragraph 6 of the Copyright Act provides this protection — meaning that even with a waiver in place, the author can still seek an injunction or damages for such uses.

Valid Scope and Limits of the Waiver

Uses the waiver handles without issue

• Color and font changes associated with brand refresh
• Resolution changes, cropping, or resizing
• Use of deliverables without displaying the author's name
• Provision to group companies or subsidiaries

Uses that may still be problematic despite a waiver

• Fundamental changes that negate the original creative intent (e.g., repurposing a peace-themed illustration for a military advertisement)
• Recontextualization that damages the author's social standing
• Incorporation into sexually explicit or discriminatory content

The waiver operates on the premise that the author's personal interests will not be harmed. Once that premise is violated, the waiver loses effect. Interpreting a waiver as a license to do anything is a legal error.

Chain Obligation to Sub-Contractors

If the contractor uses freelance illustrators or photographers, the waiver does not automatically bind those third parties. Paragraph 3 of the sample clause above — requiring the contractor to obtain the same waiver from any third party they engage — is essential. Without it, a situation can arise where the copyright has been assigned but a third-party author with moral rights appears after the fact.

Below are specific situations where moral rights issues tend to surface in practice.

Modification Risk During Brand Refresh

When a company undergoes a brand refresh years later and modifies previously commissioned logos, key visuals, or web designs, the right of integrity remains with the original creator even though the copyright was assigned to the client. If the contract includes a valid waiver, this is typically fine — but older contracts (particularly those from before the 2010s) frequently lack any moral rights clause.

Review past contracts and, if a waiver is absent, obtain separate written consent from the creator before making modifications.

Credit Issues Following Corporate Name Change or Merger

When a company changes its name or merges and continues using deliverables previously credited under the old name, the right of attribution is generally not an issue (this concerns the client's name, not the author's). However, if the author's name display itself is changed — for example, if works are credited to "ABC Co., Ltd. Design Dept." and that entity no longer exists — the author's consent may be required.

Intersection with AI-Generated Content and Secondary Use

When AI-generated content is incorporated into a deliverable, the ownership of moral rights itself becomes unclear. While AI-generated portions are generally not considered copyrightable, portions that reflect the creative judgment of a director or editor may have an identifiable author. When the boundary is blurry and a waiver is signed regardless, a later claim that "that part was not AI-generated; it was my own creation" carries real legal risk.

Here is how to think about moral rights from the contractor (freelancer) side.

Guidelines for Responding to Waiver Requests

Refusing a moral rights waiver outright is usually impractical, but signing without scrutiny is also inadvisable. Keep the following negotiating points in mind.

Points where negotiation is feasible

• Explicit codification of the exception for honor/reputation-damaging use
• Retaining the right of attribution for portfolio use
• Limiting the scope of permitted modifications specifically (e.g., "minor adjustments only")

Points where concession is realistic

• Color and size adjustments by the client
• Text additions or edits required by law or regulation
• Provision to group companies and subsidiaries

Pre-Agreeing on Credit Display

To appropriately protect the right of attribution, agree in writing on the following before delivery:

1. Whether the author's name will be displayed
2. The form of the name (legal name, trade name, team name)
3. Placement, size, and design of the credit
4. Whether credit must carry over to secondary uses

Verbal agreements are difficult to prove, so email confirmation or a written addendum to the contract is advisable.

Decision Framework for Exercising Moral Rights

The following framework helps freelancers decide whether to exercise moral rights in response to a modification.

Situations warranting consideration of action

• Repurposing into a context that clearly damages the author's reputation
• A modification that fundamentally reverses the work's original intent or message
• A clear match to the waiver's exception (use that damages honor or reputation)

Situations where restraint is appropriate

• Minor adjustments consistent with the client's brand policy
• Cases where a valid waiver has been signed and no exception applies
• Modifications that do not undermine the essential value of the work

Exercising moral rights is a legal action that typically ends the working relationship. Attempting to resolve the issue through direct discussion first is the standard practice.

References

Copyright Act (Act No. 48 of 1970), Articles 18–20 and 59

Outline of the Copyright System — Rights of Authors

Moral rights