[Warning: statements of law in this post may or may not be completely incorrect.]

Moral rights in art are amongst the most controversial of all rights because they carve out a portion of property rights and constitute a redistribution of wealth to artists. The concept behind them is that there are some rights that cannot be contracted away or alienated. No price could ever be fairly assessed for these rights. Clearly, this concept is anathema to the system of property rights long developed through common law that is being steadily statutorily eroded.

One such erosion in the United States is the Visual Artists Rights Act of 1990, which is the implementation of the Berne Convention. The text of the Act is contained here. Let us look at them piece by piece. First, 17 U.S.C. 106A(a)(1)(A) and (B):

…the author of a work of visual art shall have the right to claim authorship of that work, and to prevent the use of his or her name as the author of any work of visual art which he or she did not create…

This section of the code means that, for example, an artist making something for hire will be able to claim authorship of the work. In decades past, many artists felt that they received a pittance for their artistic efforts when the corporations that they worked for were able to reap an inordinate amount of profit. To an artist, this means that the artist does not have enough bargaining power and requires legislation to intervene. To a property rights purist (i.e. almost all libertarians, most Republicans, a few Democrats), this means that if the artist wants more bargaining power the artist should start her or his own firm and contract directly with whomever wants her or his work. To the purists, legislation is wholly unnecessary for this problem and may even represent an infringement on the liberty to contract. Now let us look at the next moral right, 17 U.S.C. 106A(a)(2):

…the author of a work of visual art shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation…

This just means that the artist need not be tied to an art work that has been changed in some way that would be “prejudicial to his or her honor or reputation.” It is not really clear what evidentiary standard the legislature intended here for prejudicial or what an artist’s honor or reputation really means — but it is closely related with the next rights, both contained in 17 U.S.C. 106A(a)(3):

…the author of a work of visual art shall have the right to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and [the right] to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

This section contains perhaps the greatest departure from common law property rights. In it, VARA confers on artists the ability to stop owners of a work from changing it, perhaps modifying it in any way, including changing its location if it is, say, a mural. It also confers on the artist an ability to conceivably prevent the destruction of a work. There have been cases litigated on this matter, and they often turn on extremely narrow interpretation of state statutes that are similar to VARA. Artists have argued that their personality is bound up in these works, they are extensions of themselves, and that it is unfair for record property owners to be able to just do as they place. Obviously, property rights purists think that if they own the property with an artwork or the artwork itself that they should be able to dispose of it (or deface it) as they might wish, however grotesque an act it seems to be — though, of course, the result might be a work of art (derivative?!) in and of itself.

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