In the United States, rights in works of authorship and inventions
traditionally have been viewed as resting upon either a natural-law
or an instrumentalist theory (or both). Natural law theorists
claim that an author or inventor is morally entitled to enjoy
the fruits of her labor and therefore that she has an inherent
right to exclude others from copying her work. n20
Instrumentalist theorists [*7] argue instead that the state creates
intellectual property rights to induce people to create or disseminate
works of authorship and inventions - the assumption being that,
in the absence of intellectual property rights, free riding would
discourage the creation or dissemination of these works. n21
European intellectual property law, by contrast, derives in large
part from a concept of property developed by Immanuel Kant and
Georg Wilhelm Friedrich Hegel. As viewed by Kant and Hegel, private
property is acquired not necessarily by labor, but rather by one's
joining of his individual Will to some object external to the
self. n22 As a result of this process, the
thing possessed comes to embody the owner's personality; n23
and by like reasoning a person may alienate property by removing
his Will from the thing possessed. n24 As Margaret
Radin notes, however, for Kant and Hegel "only objects separate
from the self are suitable for alienation." n25
Thus, in the words of Hegel:
Both Kant and Hegel devoted some attention to the subject of
property rights in works of authorship. Kant, in the Rechtslehre
and in his essay Von der Unrechtmassigkeit des Buchernachdrucks
("On the Injustice of Copying Books"), distinguished
between the book as an external thing - which the publisher (and,
thereafter, the purchaser) may possess and alienate just as he
may possess and alienate other external things - and the book
as the author's discourse or speech (Rede). n27
In Kant's view, the mere ownership or possession of a book does
not entitle one to copy it, because copying would interfere with
the author's prerogative of deciding when and how he will communicate,
through his authorized publisher, with the public. n28
Kant viewed the author's interest in deciding how and when to
speak as an inalienable part of his personality, n29
concluding that the author may license, but not alienate, the
right to copy his work. n30 As an agent, the
publisher is obligated to present the work according to [*9] the
author's wishes. n31
Hegel similarly contended that literary works, as well as other
works such as inventions, embody the author's "attainments,
erudition, talents, and so forth," and that these attributes
are "owned by free mind and are something internal and not
external to it." n32 Hegel differed from
Kant, however, in arguing that the author's expression of his
mental aptitudes, as embodied in a work of authorship, is external
to the author and therefore freely alienable. n33
Hegel thus concluded that the author may alienate the copyright
in his work to the same extent that he may alienate any other
product of his labor. n34
Expanding upon the Kantian view that an author's copyright is
a single, personal, and inalienable right, one school of theorists
in the late nineteenth century concluded that an author may license
her work for publication but may not assign or waive her rights
in it. n35 [*10] This theory is reflected in
the modern German copyright statute. n36 Other
theorists, such as Josef Kohler, followed Hegel's view that an
author may alienate the copyright to her work. n37
Kohler argued, however, that because works of authorship embody
the author's inalienable personality, the author retains the right
that "no strange work be presented as his, but that his own
work not be presented in a changed form," even after the
author transfers both the physical embodiment of the work and
its copyright. n38 Kohler's theory - which
posits two classes of rights, one alienable, the other not - is
reflected in the modern French copyright statute. n39
While scholars refined these ideas, French and German courts
developed a body of legal doctrine based on the principle that
authors have inalienable rights in their works. Over time, the
courts came to recognize four aspects of the author's "moral
right": n40 the [*11] droit de divulgation,
or right of disclosure; n41 the droit de repentir
ou de retrait, or right to correct or withdraw works previously
disclosed to the public; n42
the droit de paternite, or right of attribution; and the droit
au respect de l'oeuvre, literally "the right to respect of
the work," usually translated as the right of integrity.
n43 These rights are inalienable n44
and, to the extent that at least some purported waivers [*12]
may be deemed unenforceable or revocable, nonwaivable. n45
In France, the moral right also is perpetual, n46
while in Germany it expires when the author's copyright expires,
seventy years after the author's death. n47
The most important aspects of the moral right are the rights of
attribution and integrity. With respect to the former, French
and German law recognize (1) a right against misattribution n48 (being attributed as the author of another's
work, n49 or having another attributed as the
author of one's own work); n50 (2) a right
against nonattribution (the omission of one's name from one's
own work); n51 (3) a right to publish anonymously
or pseudonymously; n52 and (4) a right to void
a promise to publish anonymously or pseudonymously. n53
My principal focus in this Article, however, is on the right of
integrity, the precise scope of which is somewhat more difficult
to define. At a minimum, the right prevents the alteration of
the artist's work in a manner that injures his honor or reputation.
n54 Under a more expansive definition, the
right protects against acts that "mistreat[ ] an expression
of the artist's personality, affect[ ] his artistic identity,
personality, and honor, and thus impair[ ] a legally protected
personality interest," n55 or against
the public presentation of the artist's work "in a manner
or context that is harmful to [the artist's] reputation or contrary
to [the artist's] intellectual interests, personal style, or literary,
artistic or scientific conceptions." n56
Still others argue that the right obligates the transferee of
a work to "preserve and publicly display or disseminate the
author's work in accordance with the author's wishes, notwithstanding
any contractual provision to the contrary." n57
Courts have found violations of the artist's right of integrity
when, for example, the defendant painted over, n58
cut up, n59 or otherwise destroyed the artist's
work; n60 displayed distorted [*14] reproductions
of the work; n61 staged a play or opera contrary
to the author's n62 or designer's n63
directions, or with substantial additions or deletions to the
text; n64 colorized a film; n65
or otherwise presented the artist's work out of context. n66
In some of these cases, the right of integrity may be viewed as
overlapping with the right of attribution - as, for example, when
the artist believes that his work has been so distorted that it
can no longer truthfully be attributed to him. n67
Courts have limited the right of integrity in two important respects.
First, the owner of the physical object in which the work is embodied
is generally entitled to use the work in ways that do not materially
impinge upon the work's integrity or that are reasonable under
the circumstances. n68 Second, the courts generally
permit one [*15] who has been authorized to adapt a work into
another medium to make such changes as may be necessary to transfer
the work into that medium, as long as the adapter does not grossly
distort the work. n69 As a consequence of these
rather vague limitations, a court may be called upon to make a
quasi-aesthetic judgment as to whether a given use or adaptation
is consistent with the spirit of the original work. n70
In comparison with their French and German counterparts, American
courts and legislatures were slow to embrace the concept of moral
right in works of authorship. Writing in the Harvard Law Review
in 1940, Martin Roeder argued that a mix of Anglo-American common-law
doctrines already provided artists in this country with something
akin to moral rights protection under some limited circumstances.
n71 The authorities Roeder cited in support
of an attribution right, however, were precarious, n72
and he conceded that a [*16] plaintiff wishing to vindicate a
quasi-right of integrity under a libel or unfair competition theory
would face substantial obstacles. n73 In the
decades to follow, courts for the most part narrowly construed
these common-law analogues of moral rights. Except for the occasional
case involving an alleged false attribution, n74
courts generally refused to acknowledge attribution rights n75 and were equally disinclined to recognize
an expansive right of integrity. n76 These
decisions led one prominent scholar to conclude that, as of 1976,
"the moral right of the artist, and in particular that component
called the right of integrity of the work of art, simply does
not exist in our law." n77
Over the past twenty years, however, the picture has changed,
as courts and legislatures gradually have begun to recognize,
and to expand upon, an American doctrine of moral right. The first
significant development occurred in 1976, in the case of Gilliam
v. American Broadcasting Cos., n78 when the
United States Court of Appeals for the Second Circuit endorsed
a limited version of moral [*17] rights protection under federal
copyright and statutory unfair competition principles. The plaintiffs,
members of the popular comedy troupe Monty Python, had agreed
with the British Broadcasting Corporation ("BBC") that
the troupe would write and deliver scripts for a series of television
programs, subject to the conditions that BBC could make only minor
changes in the work without prior consultation with the writers,
and that the writers otherwise retained all rights in the scripts.
n79 In 1973, BBC licensed the right to distribute
the series in the United States to Time-Life Films, which in turn
licensed the American Broadcasting Company ("ABC") to
broadcast two ninety-minute specials, each comprising three thirty-minute
Monty Python programs. n80 When ABC's broadcast
of the first special, however, omitted twenty-four of the original
ninety minutes of recording - allegedly to make time for commercials
and to delete portions ABC deemed offensive or obscene - Monty
Python sued to enjoin the scheduled broadcast of the second special,
alleging violations of its rights under copyright law and under
43(a) of the Lanham Act. n81
Although unsuccessful in their attempt to convince the district
court to issue a preliminary injunction, n82
the plaintiffs prevailed on appeal, with the Second Circuit expressly
finding a likelihood of success on the merits for both the copyright
and Lanham Act claims. n83 With respect to
the copyright claim, the court concluded that, just as a copying
of the television programs also would constitute, for copyright
purposes, a copying of the underlying work (the scripts) on which
the programs were based, ABC's editing of the programs also constituted
an editing of those scripts. n84 In view of
the fact that [*18] Monty Python had never expressly authorized
BBC (or anyone else) to materially edit the scripts, however,
ABC's acts violated the troupe's exclusive right to editorial
control. n85 With respect to the Lanham Act
claim, the court agreed with the plaintiffs that the broadcast
of a distorted version of their work falsely represented that
work as originating from Monty Python, concluding that "an
allegation that a defendant has presented to the public a "garbled,'
distorted version of plaintiff's work seeks to redress the very
rights sought to be protected by the Lanham Act." n86
Subsequent decisions have expressed agreement with the Gilliam
court's view that substantial unauthorized editing may violate
the copyright owner's exclusive right to adapt her work, n87
and that 43(a) provides a cause of action for passing off a materially
distorted version of the plaintiff's work as the genuine item.
n88 Courts also have concluded that defendants
may be liable under 43(a) for falsely attributing the plaintiff's
work to the defendant, n89 or vice versa; n90 for falsely attributing a jointly authored
work to only one co-author; n91 and for falsely
advertising a plaintiff's earlier works as recent ones. n92
A second development was the passage, beginning in the late 1970s, of state moral rights statutes. n93 The first of these was the [*19] California Art Preservation Act, n94 which recognizes moral rights in "fine art," defined as "an original painting, sculpture, or drawing, or an original work of art in glass, of recognized quality." n95 The Act recognizes both an attribution right, which allows the artist to "retain at all times the right to claim authorship, or, for a just and valid reason, to disclaim authorship of his or her work of fine art," n96 and an integrity right, which prohibits the intentional "physical defacement, mutilation, alteration, or destruction of a work of fine art." n97 These rights terminate fifty years after the artist's death, n98 unless the artist has chosen to waive them in a signed written instrument. n99 In a provision unique among state and federal moral rights laws, California law also authorizes "an organization acting in the public interest" to "commence an action for injunctive relief to preserve or restore the integrity of a work of fine art" from the acts proscribed under 987(c). n100
Among the other state statutes, the one that has generated the most case law and commentary is the New York Artists Authorship [*20] Rights Act. n101 The New York Act applies not only to original works of "fine art" (defined as a "painting, sculpture, drawing, or work of graphic art, and print, but not multiples"), n102 but also to "limited edition multiples of not more than three hundred copies" n103 and to reproductions. n104 Like the California Act, the New York Act recognizes an attribution right that allows the artist both to claim authorship and, "for just and valid reason," to disclaim it. n105 The New York Act also recognizes an integrity right, which forbids anyone other than the artist (or someone acting with his consent) from knowingly displaying in a place accessible to the public, or publishing, such a work
Unlike the California Act, the New York Act does not create
any statutory exceptions for works that are incorporated into
buildings; does not expressly permit the artist to waive his rights;
n107 and does not specify when his rights
terminate. n108
A third major development in the history of droit moral in the
[*21] United States is the passage of the federal Visual Artists
Rights Act of 1990 ("VARA"), n109
which amends the Copyright Act of 1976 by expressly providing
for limited federal recognition of moral rights. n110
Like the California and New York statutes, n111
VARA's scope is limited, applying only to "works of visual
art," which are defined as (1) paintings, drawings, prints,
or sculptures existing in a single copy or in specified limited
edition copies, n112 or (2) still photographic
[*22] images produced for exhibition purposes only, existing in
a single copy signed by the author or in certain limited edition
copies. n113 All other works (including motion
pictures, literary works, and all "works made for hire")
are outside the scope of the Act, n114 as
are reproductions of works of visual art other than the specified
limited edition copies n115 and any work created
before the Act's effective date (June 1, 1991) if the author had
transferred title to it prior to that date. n116
Like the state statutes, VARA recognizes both attribution and
integrity rights. The former include the rights to claim authorship
of the work and to prevent the use of one's name as the author
of a work created by another; n117 in addition,
the statute recognizes an overlapping attribution/integrity right
similar to the right at issue in Gilliam, which allows the author
to prevent the use of his or her name as the author of the work
in the event of a "distortion, mutilation, or other modification
... which would be prejudicial to his or her honor or reputation."
n118 Finally, VARA establishes an integrity
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 "to prevent any
destruction of a work of recognized stature." n119
Unlike her French or German counterpart, [*23] however, the American
author may waive her rights, as long as she does so in a signed
written instrument specifically identifying the work and the uses
to which the waiver applies. n120 If not waived,
her rights terminate at death, if the work was created after June
1, 1991. n121
Thus far, there have been only two reported cases interpreting
the substantive provisions of VARA. The one, Pavia v. 1120 Avenue
of the Americas Associates, n122 holds only
that the continued display of a work that was mutilated prior
to June 1, 1991, does not create an ongoing actionable wrong under
VARA. n123 The other, Carter v. Helmsley-Spear,
Inc., n124 involved the threatened alteration
or removal [*24] of a sculpture from the lobby of a commercial
building located in Queens, New York. In 1991 the managing agent
of the building's lessee had hired the plaintiff artists to "design,
create and install sculpture and other permanent installations"
in the building. n125 Before the work was
completed, however, the lessor and its agent fired the artists
and announced their intention to alter or remove the work, prompting
the artists to file suit. n126 Following a
bench trial, the court concluded that the work was a "work
of visual art" and not a work made for hire, n127
that the distortion or mutilation of the work would be prejudicial
to the artists' reputations, n128 and that
the work was of sufficient stature that its destruction also would
violate the act. n129 On the basis of these
findings, the court entered an order forbidding the distortion,
mutilation, modification, destruction, or removal of the work
until the last-surviving plaintiff's death. n130
On appeal, however, the Second Circuit reversed, concluding that
the sculpture was a work made for hire, and therefore outside
the scope of VARA. n131
Whether these developments have made a significant difference
in the lives of American artists remains to be seen. Even under
the Gilliam court's expansive reading of the Copyright Act, the
author's right to adapt or edit her work is completely alienable
and is [*25] enforceable only by the copyright owner, who may
be different than the author. n132 Future
Monty Pythons who assign their adaptation rights therefore will
have no right under the Copyright Act to prevent the performance
of their scripts in truncated form. And while the same court's
reading of 43(a) provides the author with a claim against one
who represents a distorted version of the author's work as genuine,
43(a) arguably provides no affirmative right of attribution, n133 may authorize the court to allow the publication
or performance of an altered work with a disclaimer, n134
and may provide no relief for an author who cannot show some injury
to her reputation. n135 Section 43(a) also
would appear to provide no recourse for a plaintiff who is injured
by a defendant's noncommercial activity, such as (perhaps) the
display of an altered work in a not-for-profit museum. n136
The state statutes and VARA also fall short of establishing the
extensive protection guaranteed under French and German law. Among
the deficiencies of the American statutes, as viewed from the
standpoint of moral rights advocates, are that the California,
New [*26] York, and federal acts apply only to visual art; that
the protection afforded under the California Act and portions
of VARA is specifically limited to works of recognized quality
or stature; that the New York Act arguably provides no remedy
for alterations that cause no injury to the artist's reputation;
and that both VARA and the California Act allow the artist to
waive her rights. n137 Moreover, none of the
statutes has generated a substantial body of reported case law,
n138 and perhaps this fact suggests that they
have had little effect thus far.
The suggestion that the statutes have had little effect is consistent
with some of the findings disclosed in a recent Copyright Office
Report on the Waiver of Moral Rights in Visual Artworks. n139
The report discloses that more than one quarter of the respondents
surveyed by the Copyright Office in 1994-95 were unaware that
artists who create certain works of art have moral rights, n140 and it suggests that written waivers may
become increasingly common with respect to commissioned works
and works incorporated into buildings. n141
Inasmuch as VARA renders oral waivers ineffective, however, artists
who have sold their works pursuant to entirely oral contracts
presumably have not waived their moral rights, whether they realize
those rights exist or not. The fact that oral contracts for the
sale of movable works of art appear to be more common than [*27]
written contracts n142 therefore suggests
that, at least with respect to this class of works, VARA has altered
the balance of power in favor of the artist. n143
But whether this putative shift in power is meaningful is an open
issue. If movables are less likely than nonmovables to be intentionally
distorted or to subject their owners to suit in the event of a
violation, even this power shift may be illusory. n144
n20. Attempts to ground intellectual
property rights in natural law typically rely upon a Lockean theory
of property rights, in which a person is deemed to be morally
entitled to private ownership of an object appropriated from the
common when she joins her labor to it, so long as "enough
and as good" remains in the common for others to use. In
the context of copyright law, for example, the creator of a work
of authorship is viewed as deserving some form of copyright protection
as a reward for her intellectual labor. For discussions of natural
law/desert-based theories of copyright, see Wendy J. Gordon, A
Property Right in Self-Expression: Equality and Individualism
in the Natural Law of Intellectual Property, 102 Yale L.J. 1533,
1540-83 (1993); Justin Hughes, The Philosophy of Intellectual
Property, 77 Geo. L.J. 287, 296-330 (1988); Tom G. Palmer, Are
Patents and Copyrights Morally Justified? The Philosophy of Property
Rights and Ideal Objects, 13 Harv. J.L. & Pub. Pol'y 817,
821-35 (1990); Stewart E. Sterk, Rhetoric and Reality in Copyright
Law, 94 Mich. L. Rev. 1197, 1227-39 (1996); Alfred C. Yen, Restoring
the Natural Law: Copyright as Labor and Possession, 51 Ohio St.
L.J. 517, 522-24 (1990).
n21. For discussions of instrumentalist
theories of copyright, see Hughes, supra note 20, at 302-05, William
M. Landes & Richard A. Posner, An Economic Analysis of Copyright
Law, 18 J. Legal Stud. 325, 344-47 (1989), Neil Weinstock Netanel,
Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 308-11
(1996), and Sterk, supra note 20, at 1204-09.
n22. See G.W.F. Hegel, Philosophy of
Right 44, 50, 51-58 (T.M. Knox trans., Oxford Univ. Press 1952)
(1821); Immanuel Kant, The Philosophy of Law 81-84 (W. Hastie
trans., Augustus M. Kelley Publishers 1974) (1796); see also Hughes,
supra note 20, at 334 (noting that, for Hegel, labor is a sufficient
but not necessary condition for occupation of object by Will);
Palmer, supra note 20, at 838 (same). In Hegel's philosophy, it
is specifically through the acquisition of private property that
the Will comes to actualize itself as Idea, allowing the individual
to attain a higher sphere of freedom. See Hegel, supra, 41, 44-46.
n23. See Hegel, supra note 22, 51.
n24. See id. 53, 65; Kant, supra note
22, at 101.
n25. Margaret Jane Radin, Contested Commodities
34 (1996).
n26. Hegel, supra note 22, 66; see also
Kant, supra note 22, at 98-99 (discussing man's ability to dispose
of his property, but not himself, at will); Radin, supra note
25, at 36 (describing man's inability to "dispose [of] himself
because he is not a thing") (quoting Immanuel Kant, Lectures
on Ethics 165 (Louis Infield trans., J. Macmurray ed., rev. ed.
1930)).
n27. See Kant, supra note 22, at 129-31;
Immanuel Kant, Von der Unrechtm<um a>ssigkeit des B<um
u>chernachdrucks [hereinafter Kant, Injustice], in 4 Immanuel
Kants Werke 213, 215, 218-21 (Artur Buchenau & Ernst Cassirer
eds., 1922); see also Netanel, supra note 17, at 374 (noting that,
for Kant, "an author's words are a continuing expression
of his inner self"); Palmer, supra note 20, at 839 (discussing
Kant's distinction between book as external thing and as discourse).
n28. See Kant, supra note 22, at 130;
Kant, Injustice, supra note 27, at 219. In places, Kant seems
to be saying that the plagiarist injures only the authorized publisher.
See Kant, supra note 22, at 130 (arguing that "unauthorized
Publication is a wrong committed upon the authorized and only
lawful Publisher, as it amounts to a pilfering of the Profits
which the latter was entitled and able to draw from the use of
his proper Right"); Kant, Injustice, supra note 27, at 216
(arguing that "the pirate causes injury to the publisher
in regard to his rights, not to the author") (my translation).
Neil Netanel argues, however, that for Kant the publisher's rights
are "derived from those of the author, and do not amount
to an independent proprietary interest." Netanel, supra note
17, at 376 n.122 (citing Kant, supra note 22, at 21).
n29. See Kant, Injustice, supra note
27, at 221 (stating that the author has inalienable right "to
speak for himself through another, that is, that no one else may
publicly perform the same speech as if in the author's name");
see also Netanel, supra note 17, at 376 (finding "inalienability
of the author's rights in his work ... implicit in Kant's categorization
of a literary work as part of the author's person instead of an
external thing").
n30. See Kant, Injustice, supra note
27, at 215; Netanel, supra note 17, at 376; Palmer, supra note
20, at 839.
n31. See Kant, Injustice, supra note
27, at 219-20. Kant did not envision, however, many restrictions
upon the publication of derivative works (that is, works based
upon one or more preexisting works, such as translations, see
17 U.S.C. 101 (1994) (defining "derivative works")).
Kant argued that one may publish an abridgement, enlargement,
or other adaptation of an author's book, without obtaining permission
from the author or his authorized publisher, as long as the work
does not purport to speak in the author's name, and that translations
do not infringe because they are not "the same speech of
the author, even though the thoughts are likely to be the same."
Kant, Injustice, supra note 27, at 221-22.
n32. Hegel, supra note 22, 43.
n33. See id. 43, 68, 69. Hegel also noted
with apparent approval the instrumental argument that patents
and copyrights help to spur creativity and compared these rights
to capital assets. See id. 69; see also Hughes, supra note 20,
at 338-39 (discussing these aspects of Hegel's theory); Palmer,
supra note 20, at 841 (discussing capital asset theory).
n34. See Hegel, supra note 22, 69. For
Hegel, the only restriction on the alienability of such external
works is that no one may alienate all of his labor because this
would be tantamount to agreeing to sell oneself into slavery.
See id. 67. Radin notes, however, that this position raises some
conundrums; for example, why is the partial alienation of property
that one has infused with one's personality not forbidden? See
Radin, supra note 25, at 37-38.
Interestingly, neither Kant nor Hegel believed that it was
wrong to copy works of visual art, such as painting and sculpture.
Kant distinguished a work of art (Kunstwerk) from a literary work
by characterizing the former as an author's "work" (opus)
- an external thing - and the latter as an "action"
or exercise of authorial power (opera). See Kant, Injustice, supra
note 27, at 220-21; see also Netanel, supra note 17, at 374 n.110,
377 n.126; Palmer, supra note 20, at 839-40. Hegel argued that
a copy of a "work of art," unlike an infringing literary
work or invention, "is essentially a product of the copyist's
own mental and technical ability." See Hegel, supra note
22, 68 (emphasis added); see also Hughes, supra note 20, at 338
n.209 (suggesting that, due to the technology of his day, "Hegel
did not consider the possibility of mass production capable of
imitating an artist's work").
n35. See Stephen Ladas, The International
Protection of Literary and Artistic Property 8-9 (1938); Damich,
supra note 17, at 27; DaSilva, supra note 17, at 10-11; Netanel,
supra note 17, at 378-79.
n36. See Gesetz <um u>ber Urheberrecht
und verwandte Schutzrechte v. 9 Sept. 1965 [hereinafter German
Act], translated and reprinted in Unesco, 2 Copyright Laws and
Treaties of the World, at Germany: Item 1 - Page 8, art. 29 (1987).
Several authors have discussed the influence of Kantian theory
on German copyright law. See, e.g., Damich, supra note 17, at
30; DaSilva, supra note 17, at 11; Adolf Dietz, Germany, in 1
International Copyright Law and Practice, 4[2], at GER-48 to -49
(Melville B. Nimmer & Paul Edward Geller eds., 1996); Netanel,
supra note 17, at 379.
n37. See Ladas, supra note 35, at 9-10;
Damich, supra note 17, at 27-29; DaSilva, supra note 17, at 10-11;
Arthur S. Katz, The Doctrine of Moral Right and American Copyright
Law - A Proposal, 24 S. Cal. L. Rev. 375, 401-04 (1951); Netanel,
supra note 17, at 379-81; Palmer, supra note 20, at 842.
n38. Josef Kohler, Urheberrecht an Schriftwerken
und Verlagsrecht 15 (1907), quoted in Katz, supra note 37, at
402 & n.148.
n39. See Code de la propriete intellectuelle
[hereinafter French Act], reprinted in Andre Francon, Cours de
Propriete Litteraire, Artistique et Industrielle 289-322 (1993).
For discussions of the influence of Hegelian theory on French
copyright law, see, for example, Damich, supra note 17, at 30,
DaSilva, supra note 17, at 11, and Netanel, supra note 17, at
381.
n40. "Moral right" is a translation
of the French droit moral, a term coined by the French jurist
Andre Morillot and subsequently codified in the French Intellectual
Property Code. See Damich, supra note 17, at 29; Andre Lucas &
Robert Plaisant, France, in 1 International Copyright Law and
Practice, supra note 36, 7, at FRA-97. The analogous German term,
Urheberpers<um o>nlichkeitsrecht, means "author's right
of personality." Dietz, supra note 36, 7[1], at GER-85. Although
the term "author's right of personality" seems preferable
to the term "moral right" for conveying the idea that
the rights at issue are viewed as arising out of the creator's
personality, see Netanel, supra note 17, at 383 n.162, in this
Article I follow the convention of using the term "moral
right."
n41. This right, codified in article
L.121-2 of the French Act, supra note 39, and article 12(1) of
the German Act, supra note 36, recognizes the artist's exclusive
right to determine when his work is completed and to determine
when, if ever, the work is ready to be disclosed to the public.
For representative cases, see, for example, Cass. 1e civ., Mar.
13, 1900, D.P. I 1900, 497 (the Whistler case) (refusing to compel
artist to deliver a promised canvas, in light of artist's representation
that it was not complete) and CA Paris, 1e, Mar. 6, 1931, D.P.
II 1931, 88 (ordering destruction, in accordance with artist's
wishes, of paintings defendants had found and restored after artist
had discarded them). The relevant legal principles have been explored
extensively elsewhere. See, e.g., Francon, supra note 39, at 214;
Damich, supra note 17, at 8-12; DaSilva, supra note 17, at 17-20;
Dietz, supra note 36, 7[1][a], at GER-85 to -86; Lucas & Plaisant,
supra note 40, 7[1][a], at FRA-99 to -100; Merryman, supra note
17, at 1024-25, 1028; Netanel, supra note 17, at 383-85; Roeder,
supra note 17, at 558-60; Raymond Sarraute, Current Theory on
the Moral Right of Authors and Artists Under French Law, 16 Am.
J. Comp. L. 465, 467-70 (1968); William Strauss, The Moral Right
of the Author, 4 Am. J. Comp. L. 506, 511-13 (1955).
n42. This right, codified in the French
Act, guarantees the author a right of correction or retraction
even after she has transferred the copyright to her work, on condition
that she "indemnify the transferee beforehand for the loss
that the correction or retraction may cause him." French
Act, supra note 39, art. L.121.4. The German Act provides a similar
retraction right but does not state whether the author is entitled
to correct his work. In practice, these rights are rarely invoked.
See German Act, supra note 36, 42. For discussions, see Damich,
supra note 17, at 24-25, DaSilva, supra note 17, at 25, Netanel,
supra note 17, at 385-86, Sarraute, supra note 41, at 477, and
Strauss, supra note 41, at 513.
n43. Article L.121.1 of the French Act
codifies these latter two rights, stating that "the author
shall enjoy the right of respect for his name, his authorship,
and his work," and that "this right shall be attached
to his person." French Act, supra note 39, art. L.121.1.
The analogous provision of the German Act is article 13, which
states that the author "shall have the right of recognition
of his authorship of the work," may "determine whether
the work is to bear an author's designation and what designation
is to be used," and "shall have the right to prohibit
any distortion or any other mutilation of his work which would
prejudice his lawful intellectual or personal interests in the
work." German Act, supra note 36, art. 13.
n44. See French Act, supra note 39, art.
6; Dietz, supra note 36, 7[4], at GER-92; Lucas & Plaisant,
supra note 40, 7[4][a], at FRA-110.
n45. See Edward J. Damich, The New York
Artists' Authorship Rights Act: A Comparative Critique, 84 Colum.
L. Rev. 1733, 1744 (1984) (suggesting that waivers are generally
unenforceable under French law); Dietz, supra note 36, 7[4], at
GER-93 ("One can say that the core of moral right protection
always remains "with' the authors."); Lucas & Plaisant,
supra note 40, 7[4][a], at FRA-110 (discussing inalienability
and waivability), 7[4][b], at FRA-112 (discussing waivability).
But see Lucas & Plaisant, supra note 40, 7[4][b], at FRA-113
("The Cour de cassation, while reaffirming the principle
that the respect due the work "prohibits any alteration or
change,' has stated that this right is "subject to limitations
of the author's moral right resulting from agreements which the
author may have entered into regarding his works ....'" (quoting
Cass. 1e civ., Dec. 17, 1991, 152 Revue Int'l du Droit d'Auteur
1992, 190)). An author who permits an adaptation of her work,
however, may be deemed to have waived any objection to changes
that do not seriously distort that work. See infra text accompanying
notes 68-70.
n46. See French Act, supra note 39, art.
6; Lucas & Plaisant, supra note 40, 7[3], at FRA-110.
n47. See Dietz, supra note 36, 7[3],
at GER-91. Neil Netanel has pointed to four other continental
alienability restrictions that protect an author's artistic control
over her work: the author's right to revoke a transfer if the
transferee fails to exploit the work in certain ways; rules that
require courts to construe contractual provisions against the
transferee, or to narrow the scope of a transfer; the prohibition
against retransfer of a work without the copyright owner's permission;
and restrictions on the transferability of rights in works not
yet created. See Netanel, supra note 17, at 388-92. Many countries,
including France and Germany, also accord visual artists a right,
known as the droit de suite, to share in the proceeds from the
resale of their works. See French Act, supra note 39, art. 42;
German Act, supra note 36, art. 26; see also Dietz, supra note
36, 4[3][e], at GER-61 (discussing German law of droit de suite);
Lucas & Plaisant, supra, 4[3][e], at FRA-83 (discussing French
law of droit de suite). These additional rights are beyond the
scope of this Article.
n48. See Damich, supra note 17, at 13;
DaSilva, supra note 17, at 26; Merryman, supra note 17, at 1027;
Netanel, supra note 17, at 386-87; Strauss, supra note 41, at
508-09.
n49. See DaSilva, supra note 17, at 26;
Neil Weinstock Netanel, Alienability Restrictions and the Enhancement
of Author Autonomy in United States and Continental Copyright
Law, 12 Cardozo Arts & Ent. L.J. 1, 34 (1994); Strauss, supra
note 41, at 508. Netanel argues, however, that, strictly speaking,
this "right against false attribution is not properly included
in the author's right of attribution, since it pertains to general
reputational interests, rather than to the relationship between
an author and his work." Netanel, supra, at 34 n.170 (citing
Damich, supra note 17, at 13).
n50. See Damich, supra note 17, at 13
(citing Henri Desbois, Le Droit d'Auteur en France 510 (3d ed.
1978)); Dietz, supra note 36, 7[1][b], at GER-86 to -87; Lucas
& Plaisant, supra note 40, 7[1][b], at FRA-102.
n51. See Damich, supra note 17, at 13;
DaSilva, supra note 17, at 26; Dietz, supra note 36, 7[1][b],
at GER-86; Lucas & Plaisant, supra note 40, 7[1][b], at FRA-101
to -102; Merryman, supra note 17, at 1027; Netanel, supra note
17, at 386; Sarraute, supra note 41, at 478; Strauss, supra note
41, at 508-09.
n52. See Dietz, supra note 36, 7[1][b],
at GER-86 to -87; Lucas & Plaisant, supra note 40, 7[1][b],
at FRA-101.
n53. See, e.g., CA Paris, 1e ch., Nov.
15, 1966, Gaz. Pal. 1967, 1, pan. jurisp., 17, note Sarraute (refusing
to enforce agreement to sign works pseudonymously); see also Dietz,
supra note 36, 7[4], at GER-93 (stating that ghost writer's waiver
of attribution right is generally binding, except in "special
circumstances" in which "we encounter the core of an
author's moral rights that may not be fully alienable or waivable");
Lucas & Plaisant, supra note 40, 7[4][b], at FRA-112 (stating
that author may renounce attribution right temporarily, but that
he retains "the right to reveal himself as author of the
work at some subsequent point and in lawful fashion").
n54. See, e.g., Roeder, supra note 17,
at 569 ("The doctrine of moral rights finds one social basis
in the need of the creator for protection of his honor and reputation.").
n55. Merryman, supra note 17, at 1027.
n56. Netanel, supra note 17, at 387 (citing
Stig Str<um o>mholm, Droit Moral - The International and
Comparative Scene from a Scandinavian Viewpoint, 14 Int'l Rev.
Indus. Prop. & Copyright L. 1, 30 (1983)).
n57. Id. at 388 (citing Damich, supra
note 17, at 20-22; Andre Francon & 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
Art & Law 381, 389 (1985)).
n58. See RGZ 79, 397, 398 (affirming
judgment in favor of artist, when homeowner who commissioned mural
subsequently painted over certain portions of it), discussed in
Merryman, supra note 17, at 1038 n.56, and Geri J. Yonover, The
"Dissing" of da Vinci: The Imaginary Case of Leonardo
v. Duchamp: Moral Rights, Parody, and Fair Use, 29 Val. U. L.
Rev. 935, 948 n.79 (1995). But see CA Paris, 1e ch., Apr. 27,
1934, D.H. 1934, 385 (rejecting artist's claim for damages for
destruction of murals he painted on walls of church without authorization
of diocese that owned church).
n59. See Cass. 1e civ., July 6, 1965,
Gaz. Pal. 1965, 2, pan. jurispr., 126 (affirming judgment for
artist, who objected to owner's separation and sale of one of
six panels of refrigerator artist decorated).
n60. Although neither the French nor
the German statute expressly forbids the destruction of the artist's
work, some courts have held that destruction violates the author's
rights. See CA Paris, 25e ch., July 10, 1975, D. 1977, 342 (awarding
artist damages for the harm suffered when shopping center owner
removed and destroyed fountain designed by the artist); Conseil
d'Etat, Apr. 3, 1936, D.P. III, 57 (recognizing sculptor's right
to damages, when town council failed to properly maintain public
sculpture and subsequently removed it). But see CA Paris, 1e ch.,
Apr. 27, 1934, D.H. 1934, 385 (discussed supra note 58); Trib.
adm. Grenoble, Feb. 18, 1976, Rev. trim. de Droit comm. 1976,
120 (rejecting artist's request to order city to reassemble decaying
monument that city had removed on ground of public safety), discussed
in Damich, supra note 45, at 1747 & n.101, and Damich, supra
note 17, at 19.
n61. See T.G.I. Paris, 3e ch., Mar. 13,
1973, JCP 1974 IV, 224 (providing a summary of decision holding
that department store violated painter's moral right by using
distorted reproductions of painter's works as window displays).
n62. See T.G.I. Paris, 3e ch., Oct. 15,
1992, 155 Revue Int'l du Droit d'Auteur 1993, 225 (holding that
director violated Samuel Beckett's moral right by staging Waiting
for Godot with leads, contrary to Beckett's stage directions,
played by two women).
n63. See Trib. civ. Seine, Oct. 15, 1954,
6 Revue Int'l du Droit d'Auteur 1955, 146 (holding that a theater
company violated stage designer's moral right by omitting scenery
from opera without stage designer's permission and awarding damages
to the stage designer), discussed in Merryman, supra note 17,
at 1029-30. But see CA Paris, 1e ch., May 11, 1965, D. 1967, 555
(denying Salvador Dali's request for relief against theater that
represented, as Dali's work, costumes begun by Dali but completed
by others), aff'd, Cass. 1e civ., March 5, 1968, D. 1968, 382,
discussed in DaSilva, supra note 17, at 34, and Lucas & Plaisant,
supra note 40, 7[c][i], at FRA-102 to -103.
n64. See BGHZ 55, 1 (affirming judgment
that defendant violated author's moral right by producing operetta
Maske in Blau with material alterations and deletions), discussed
in Netanel, supra note 17, at 387 & n.181 (citing Paul Goldstein,
Adaptation Rights and Moral Rights in the United Kingdom, the
United States and the Federal Republic of Germany, 14 Int'l Rev.
Indus. Prop. & Copyright L. 43, 57 (1983)).
n65. See Cass. 1e civ., May 28, 1991,
149 Revue Int'l du Droit d'Auteur 1991, 197 (enjoining broadcast
of colorized version of John Huston's film The Asphalt Jungle).
n66. See, e.g., CA Paris, 1e ch., Jan.
13, 1953, Gaz. Pal. 1953, 1, pan. jurispr., 191 (finding defendants
violated Soviet composers' moral rights by inserting their musical
compositions into anti-Soviet film); see also Lucas & Plaisant,
supra note 40, 7[c][i], at FRA-103 (discussing other cases). But
see Cass. 1e civ., Dec. 3, 1968, D. 1969, 73 (rejecting argument
that broker must refrain from flooding market with artist's work
in order to drive down price).
n67. See, e.g., Strauss, supra note 41,
at 509.
n68. See Damich, supra note 17, at 23
(noting limitations upon exercise of right of integrity under
French law); DaSilva, supra note 17, at 34 (noting that "many
courts limit the exercise of droit au respect to protection of
"the material integrity of the work'" (quoting Dominique
Giocanti, Moral Rights: Authors' Protection and Business Needs,
10 J. Int'l L. & Econ. 627, 640 (1975))); Dietz, supra note
36, 7[1][c], at GER-87 (stating that German law precludes author
from asserting moral right "in vexatious legal actions because
of his hypersensitive reactions to slight changes in his work"),
7[2], at GER-88 to -91 (noting other limitations on exercise of
moral right); Robert A. Gorman, Federal Moral Rights Legislation:
The Need for Caution, 14 Nova L. Rev. 421, 426 (1990) (stating
that moral right has "not been enforced when a user is taking
action that is consistent with "proper usage' or with the
"accepted manner and extent' or that is "reasonable'
or "de minimis'"); Lucas & Plaisant, supra note
40, 7[2], at FRA-107 to -110 (stating that courts have responsibility
of preventing authors from abusively exercising moral right, and
that "author's right to respect for his work has to be reconciled
with the rights of the owner of the material object embodying
the work"); Netanel, supra note 17, at 397-98 (discussing
restrictions on authors' rights under French and German law).
n69. See Damich, supra note 17, at 15-16,
23; DaSilva, supra note 17, at 34-36; Dietz, supra note 36, 7[2],
7[4], at GER-88 to -95; Gorman, supra note 68, at 426-27; Lucas
& Plaisant, supra note 40, 7[4][a], at FRA-110 to -111.
n70. See DaSilva, supra note 17, at 36-37;
Gorman, supra note 68, at 426-27, 429; Sarraute, supra note 41,
at 482.
n71. See Roeder, supra note 17, at 578.
n72. For example, Roeder noted one case
in which a court, citing a privacy theory, had upheld the right
of a pseudonymous author to prevent the publication under his
real name of certain works that had fallen into the public domain;
but he neglected to mention the fact that, at a later proceeding
in the same case, the court expressly reversed itself on this
issue. See id. at 562 (citing Ellis v. Hurst, 121 N.Y.S. 438 (Sup.
Ct. 1910)); cf. Ellis v. Hurst, 128 N.Y.S. 144, 146-47 (Sup. Ct.
1910), aff'd mem., 130 N.Y.S. 1110 (App. Div. 1911) (holding that
the defendants had the right to state the true name of the author).
Roeder also cited, as further support for a common-law right of
attribution, a case in which only one of the three judges of a
New York appellate panel had concluded that the plaintiff author
had a right, absent agreement to the contrary, to have his work
attributed to him rather than published without attribution. See
Roeder, supra note 17, at 562-63 (citing Clemens v. Press Publ'g
Co., 122 N.Y.S. 206 (Sup. Ct. 1910)). Roeder did cite some cases,
however, in which courts had affirmed authors' rights to prevent
others from falsely attributing works to them, typically under
a libel or unfair competition theory. See id. at 563-64 (collecting
cases).
n73. As Roeder explained, in some cases
the publication of a deformed version of an author's work might
be viewed as defaming the author's reputation or misrepresenting
the source of the work. See Roeder, supra note 17, at 566-70.
Roeder noted, however, that the defamation theory often would
be of limited utility in light of (1) the rule that equity will
not enjoin a libel (thereby limiting the prospective plaintiff
to money damages); (2) certain technical rules relating to pleading
and proof in libel cases; and (3) the inapplicability of libel
as a safeguard for the rights of creators of non-literary works
or deceased authors. See id. at 567. Similarly, the law of unfair
competition would provide a remedy only when the deformation of
the plaintiff's work caused or threatened economic harm. See id.
at 567-68.
n74. See, e.g., Granz v. Harris, 198
F.2d 585, 588 (2d Cir. 1952) (stating that defendant would be
liable for unfair competition when defendant, after deleting eight
minutes of music from a recording produced by plaintiff, marketed
the altered recording with attribution to plaintiff).
n75. See, e.g., Vargas v. Esquire, Inc.,
164 F.2d 522, 526 (7th Cir. 1947). But see Harms, Inc. v. Tops
Music Enters., 160 F. Supp. 77, 83 (S.D. Cal. 1958) (citing Clemens
for proposition that courts "protect against ... the omission
of the author's name unless, by contract, the right is given to
the publisher to do so").
n76. See, e.g., Crimi v. Rutgers Presbyterian
Church, 89 N.Y.S.2d 813, 818 (Sup. Ct. 1949) (rejecting claim
that artist retained rights in his work following unconditional
sale, when defendant church had painted over mural earlier commissioned
from plaintiff); Shostakovich v. Twentieth Century-Fox Film Corp.,
80 N.Y.S.2d 575, 577-79 (Sup. Ct. 1948) (rejecting Soviet composers'
claims that use of their noncopyrighted works as background music
for an anti-Soviet film constituted a violation of their rights
of privacy or a libel, and declining to recognize a separate moral
rights doctrine), aff'd mem., 87 N.Y.S.2d 430 (App. Div. 1949).
n77. Merryman, supra note 17, at 1035-36
(footnote omitted).
n78. 538 F.2d 14 (2d Cir. 1976).
n79. See id. at 17.
n80. See id. at 17-18.
n81. See id. at 18-20 & n.3, 23-24.
In relevant part, the current version of Lanham Act 43(a) states:
15 U.S.C. 1125(a)(1) (1994).
n82. See Gilliam, 538 F.2d at 18.
n83. See id. at 19-26.
n84. See id. at 19-23.
n85. See id. at 21. Although the court
did not specify the source of this right of editorial control,
it probably is best viewed as an aspect of the author's exclusive
right, under 17 U.S.C. 106(2) (1994), to prepare derivative works.
See, e.g., 3 Melville B. Nimmer & David Nimmer, Nimmer on
Copyright 8D.04[A][1], at 8D-51 (1996); see also WGN Continental
Broad. Co. v. United Video, Inc., 693 F.2d 622, 626 (7th Cir.
1982) (stating that if book seller were to inscribe Lord's Prayer
on blank inside covers of book he would infringe publisher's copyright);
National Bank of Commerce v. Shaklee Corp., 503 F. Supp. 533,
542-45 (W.D. Tex. 1980) (holding that unauthorized addition of
advertising materials to copyrighted book constituted infringement).
n86. Gilliam, 538 F.2d at 24-25 (citation
omitted).
n87. See supra note 85 (citing cases).
n88. See, e.g., Choe v. Fordham Univ.
Sch. of Law, 920 F. Supp. 44, 47-49 (S.D.N.Y. 1995), aff'd per
curiam, 81 F.3d 319 (2d Cir. 1996).
n89. See, e.g., Waldman Publ'g Corp.
v. Landoll, Inc., 43 F.3d 775, 780-85 (2d Cir. 1994).
n90. See, e.g., King v. Innovation Books,
976 F.2d 824, 828-29 (2d Cir. 1992).
n91. See Lamothe v. Atlantic Recording
Corp., 847 F.2d 1403, 1405-08 (9th Cir. 1988).
n92. See, e.g., Benson v. Paul Winley
Record Sales Corp., 452 F. Supp. 516, 517-18 (S.D.N.Y. 1978).
For further discussion of the protection of moral rights under
106(2) of the Copyright Act and 43(a) of the Lanham Act, see 3
J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition
27:77 to :90 (4th ed. 1997); 3 Nimmer & Nimmer, supra note
85, 8D.03, 8D.04.
n93. So far, fourteen states (California,
Connecticut, Illinois, Louisiana, Maine, Massachusetts, Nevada,
New Jersey, New Mexico, New York, Pennsylvania, Rhode Island,
South Dakota, and Utah) and the Commonwealth of Puerto Rico have
enacted some form of moral rights legislation. See Yonover, supra
note 58, at 957-61 & n.126; see also P.R. Laws Ann. tit. 31,
1401-1401h (1993) (recognizing that an author has the exclusive
right to benefit from and dispose of his work in accordance with
the special laws in effect on the matter).
n94. Cal. Civ. Code 987 (West Supp. 1997).
n95. Id. 987(b)(2). Because the Act does
not define the word "original," "it is not clear
whether a reproduction of the work, as distinguished from the
work as first executed by the artist, is protected" under
the Act. 3 Nimmer & Nimmer, supra note 85, 8D.07[A], at 8D-99
n.6; cf. Damich, supra note 45, at 1741 (concluding that reproductions
are not covered). To decide whether a work is "of recognized
quality," the trier of fact is directed to "rely on
the opinions of artists, art dealers, collectors of fine art,
curators of art museums, and other persons involved with the creation
or marketing of fine art." Cal. Civ. Code 987(f).
n96. Cal. Civ. Code 987(d). For a discussion
of what may count as a "just and valid reason," see
3 Nimmer & Nimmer, supra note 85, 8D.08[B], at 8D-107.
n97. Cal. Civ. Code 987(c)(1). In addition,
the Act forbids any person who frames, conserves, or restores
a work of fine art from committing a physical defacement, mutilation,
alteration, or destruction of the work "by any act constituting
gross negligence," defined as "the exercise of so slight
a degree of care as to justify the belief that there was an indifference
to the particular work of fine art." Id. 987(c)(2).
n98. See id. 987(g)(1).
n99.See id. 987(g)(3). The artist is
deemed to have waived her rights, however, if the "work of
fine art cannot be removed from a building without substantial
physical defacement, mutilation, alteration, or destruction of
the work," unless she expressly has reserved her rights in
a written instrument "signed by the owner of the building,
containing a legal description of the property and properly recorded."
Id. 987(h)(1). The Act goes on to prescribe various steps to be
taken before removing a work that is capable of being removed
from a building without suffering substantial harm. See id. 987(h)(2)-(3).
n100. Id. 989(c); see also id. 989(b)
(discussing further requirements); 989(e) (imposing restrictions
if work cannot be removed from real property without suffering
substantial harm).
n101. N.Y. Arts & Cult. Aff.
Law 14.03 (McKinney Supp. 1997).
n102. Id. 11.01(9).
n103. Id. 14.03(1). In the case of works
of fine art, or of limited edition multiples, the Act applies
only if the works or multiples are "knowingly displayed in
a place accessible to the public, published or reproduced"
in the State of New York. Id. 14.03(3)(e).
n104. See id. 11.01(16).
n105. Id. 14.03(2)(a). A "just
and valid reason" may include the fact "that the work
has been altered, defaced, mutilated or modified other than by
the artist, without the artist's consent, and damage to the artist's
reputation is reasonably likely to result or has resulted therefrom."
Id.
n106. Id. 14.03(1). The Act also exempts
"alteration, defacement, mutilation or modification ... resulting
from the passage of time or the inherent nature of the materials,"
unless such alteration, defacement, mutilation, or modification
is the result of gross negligence in maintaining or protecting
the work; any "change that is an ordinary result of the medium
of reproduction"; and any conservation efforts, unless shown
to be negligent. Id. 14.03(3)(a)-(c).
n107. For a discussion of whether waivers
are enforceable under New York law, see Damich, supra note 45,
at 1744-45.
n108. Damich argues that the author's
rights probably terminate upon his death. See id. at 1748; see
also Sarah Ann Smith, The New York Artists' Authorship Rights
Act: Increased Protection and Enhanced Status for Visual Artists,
70 Cornell L. Rev. 158, 179 (1984) (same).
n109. Visual Artists Rights Act of 1990,
Pub. L. No. 101-650, 601-610, 104 Stat. 5089, 5128-33 (codified
as amended in scattered sections of 17 U.S.C.).
n110. Pressure to enact some form of
federal moral rights protection increased following the United
States's accession in 1988 to the Berne Convention, article 6bis
of which requires signatory nations to provide authors with "the
right to claim authorship of the work and to object to any distortion,
mutilation or other modification of, or other derogatory action
in relation to, the said work, which would be prejudicial to his
honor or reputation." Berne Convention for the Protection
of Literary and Artistic Works, Sept. 9, 1886, art. 6bis, as last
revised, Paris, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221,
235. In ratifying the Convention, Congress initially took the
position that existing laws were sufficient to satisfy the obligations
imposed by article 6bis. See Berne Convention Implementation Act
of 1988, Pub. L. No. 100-568, 2(3), 102 Stat. 2853 (1989) (published
in the notes following 17 U.S.C. 101 (1994)); S. Rep. No. 100-352,
at 9-10, 38-39 (1988), reprinted in 1988 U.S.C.C.A.N. 3706, 3714-15,
3735-36; H.R. Rep. No. 100-609, at 32-40 (1988), reprinted in
1988 U.S.C.C.A.N. 3749, 3773-80; 3 Nimmer & Nimmer, supra
note 85, 8D.02[D][1], at 8D-16 n.39. The decision to enact VARA
shortly thereafter may be viewed as a reversal of this interpretation
of article 6bis, although it is doubtful that VARA would have
passed when it did, had the sponsors of a bill creating 85 new
federal judgeships not agreed to include in their bill several
unrelated pieces of legislation, including VARA, in order to appease
senators who otherwise threatened to withhold their support. See
Yonover, supra note 58, at 965-66 (quoting George C. Smith, Let
the Buyer of Art Beware: Artists' Moral Rights Trump Owners' Property
Rights Under the Visual Artists Rights Act, Recorder, Jan. 10,
1991, at 4).
n111. Although VARA preempts "all
legal or equitable rights that are equivalent to any of the rights
conferred by section 106A with respect to works of visual art
to which the rights conferred by section 106A apply," 17
U.S.C. 301(f)(1), it leaves intact any state laws with respect
to "activities violating legal or equitable rights that are
not equivalent to any of the rights conferred by section 106A
with respect to works of visual art," and "activities
violating legal or equitable rights which extend beyond the life
of the author." Id. 301(f)(2)(B)-(C). Generally speaking,
then, it would appear that a state may extend moral rights protection
to works that do not qualify as "works of visual art"
under VARA and may recognize moral rights, in addition to the
rights of attribution and integrity established under VARA, in
works of visual art and other works of authorship. Several preemption
puzzles, however, which are beyond the scope of this Article,
persist. For further discussion of preemption issues, see, for
example, 3 Nimmer & Nimmer, supra note 85, 8D.06[F][2], at
8D-91 to -94, Edward J. Damich, The Visual Artists Rights Act
of 1990: Toward a Federal System of Moral Rights Protection for
Visual Art, 39 Cath. U. L. Rev. 945, 972-73 (1990), Robert A.
Gorman, Visual Artists Rights Act of 1990, 38 J. Copyright Soc'y
233, 239-41 (1991), and Roberta Rosenthal Kwall, How Fine Art
Fares Post VARA, 1 Marq. Intell. Prop. L. Rev. (forthcoming 1997).
n112. See 17 U.S.C. 101. Limited editions
of "200 copies or fewer that are signed and consecutively
numbered by the author, or, in the case of a sculpture, in multiple
cast, carved, or fabricated sculptures of 200 or fewer that are
consecutively numbered by the author and bear the signature or
other identifying mark of the author" fall within the statutory
definition. Id.
n113. See id. Limited editions of "200
copies or fewer that are signed and consecutively numbered by
the author" fall within this definition. Id.
n114. See id. A "work made for
hire" is "a work prepared by an employee within the
scope of his or her employment" or "a work specially
ordered or commissioned" for certain specified uses. Id.
n115. See id. 106A(c)(3); see also Damich,
supra note 111, at 952 (discussing the exclusion of most reproductions
from protection under VARA); Gorman, supra note 111, at 236 (same).
n116. See 17 U.S.C. 106A(d)(2).
n117. See id. 106A(a)(1)(A)-(B).
n118. Id. 106A(a)(2).
n119. Id. 106A(a)(3)(A)-(B). An intentional
distortion, mutilation, or modification of the work violates the
first of the two integrity rights; an intentional or grossly negligent
destruction of the work violates the second. See id. Both rights
are subject to certain limitations applicable to works that have
been incorporated into or made part of buildings and that cannot
be removed from the building without being destroyed, distorted,
mutilated, or otherwise modified. If the author consented to the
installation of such a work (1) prior to June 1, 1991, the effective
date of VARA, or (2) in a written instrument executed on or after
that date, signed by both the author and the owner of the building,
and specifying that installation may subject the work to destruction,
distortion, mutilation, or other modification by reason of its
removal, the work is not protected by either the quasi-integrity
right of 106A(a)(2) or the integrity rights of 106A(a)(3). See
id. 113(d)(1). If the work can be removed without damage, the
author retains his integrity rights unless "the owner has
made a diligent, good faith attempt without success to notify
the author of the owner's intended action," or "the
owner did provide such notice in writing and the person so notified
failed, within 90 days after receiving such notice, either to
remove the work or to pay for its removal." Id. 113(d)(2).
In other words, in such a case the owner may destroy the work
if the author is not willing to pay for its removal. In all other
circumstances, the work may not be destroyed without consent of
the author.
n120. See 17 U.S.C. 106A(e)(1). Alternatively,
if the author of a work of visual art that "has been incorporated
in or made part of a building in such a way that removing the
work from the building will cause the destruction, distortion,
mutilation, or other modification of the work" consents to
the installation "in a written instrument ... that is signed
by the owner of the building and the author and that specifies
that installation of the work may subject the work to destruction,
distortion, mutilation, or other modification, by reason of its
removal," the author may not assert a violation of her right
of integrity attributable to such removal. Id. 113(d)(1).
The House report on VARA states that a waiver of moral rights
"applies only to the specific person to whom waiver is made,"
so that if A, upon selling his work to B, agrees to waive his
moral rights, and B then resells the work to C, A would not be
deemed to have waived his rights as to C. H.R. Rep. No. 101-514,
at 18-19, reprinted in 1990 U.S.C.C.A.N. at 6928-29. The portion
of the report specifically addressing the waiver of moral rights
in works incorporated into buildings, however, states that the
113(d)(1)(A) waiver "in effect extends to all subsequent
owners of that building." H.R. Rep. No. 101-514, at 20, reprinted
in 1990 U.S.C.C.A.N. at 6930. The statutory text is silent on
the issue of whether a waiver applies to subsequent purchasers,
and it remains to be seen whether or to what extent the courts
will defer to these portions of the legislative history. See generally
3 Nimmer & Nimmer, supra note 85, 8D.06[C][3], at 8D-81; 8D.06[D],
at 8D-84 (discussing legislative history concerning transfers
of waivers).
n121. See 17 U.S.C. 106A(d)(1). Works
created before June 1, 1991, are covered only if the author did
not transfer title to them prior to that date. Apparently due
to a drafting oversight, moral rights in these earlier-created
works do not terminate until 50 years after the author's death.
See id. 106A(d)(2); 3 Nimmer & Nimmer, supra note 85, 8D.06[E],
at 8D-88 to -89 & n.198. Modifications resulting from the
passage of time or the inherent nature of the materials used,
as well as those resulting from conservation or public presentation
(unless caused by gross negligence), do not violate the artist's
right of integrity. See id. 106A(c)(1)-(2). These qualifications
were added to avoid the situation that arose in a Canadian case
in which the court held that a shopping center violated the moral
rights of a sculptor by decorating his sculpture with ribbons
during the Christmas season. See H.R. Rep. No. 101-514, at 17
(1990) (citing Snow v. Eaton Ctr., Ltd., 70 Can. Pat. Rptr. 2d
105 (Ont. High Ct. 1982)), reprinted in 1990 U.S.C.C.A.N. 6915,
6927.
n122. 901 F. Supp. 620 (S.D.N.Y. 1995).
n123. See id. at 628-29.
n124. 861 F. Supp. 303 (S.D.N.Y. 1994),
aff'd in part, vacated and rev'd in part, 71 F.3d 77 (2d Cir.
1995), cert. denied, 116 S. Ct. 1824 (1996).
n125. Id. at 312.
n126. See id. at 313.
n127. See id. at 314-23.
n128. See id. at 323-24. On the basis
of the legislative history of VARA, the court concluded that a
plaintiff may prevail under 106A(a)(3)(A) without having to show
that his reputation is "derived independently of the art
work that is the subject of this dispute" or that he has
any "pre-existing standing in the artistic community."
Id. at 323 (citing H.R. Rep. No. 101-154, at 15 (1990), reprinted
in 1990 U.S.C.C.A.N. 6915, 6925). Thus, the court accepted the
testimony of the plaintiffs' expert witnesses that "plaintiffs'
honor and reputation in the artistic community would be damaged
if the Work is modified because the Work would then present to
viewers an artistic vision materially different from that intended
by plaintiffs." Id. at 324.
n129. See id. at 324-26. To determine
whether a work qualifies as a "work of recognized stature,"
the court stated that "a plaintiff must make a two-tiered
showing: (1) that the visual art in question has "stature,'
i.e.[,] is viewed as meritorious, and (2) that this stature is
"recognized' by art experts, other members of the artistic
community, or by some cross-section of society." Id. at 325.
n130. See id. at 336-38.
n131. See Carter v. Helmsley-Spear,
Inc., 71 F.3d 77, 85-88 (2d Cir. 1995). Specifically, the court
concluded that the artists were employees who had created the
sculpture in the course of their employment, thus rendering the
work a work made for hire. See id. at 86-88. Several writers have
forcefully criticized this reading of the evidence. See Kwall,
supra note 111, at 6-12; Note, Recent Case, 109 Harv. L. Rev.
2110, 2113-15 (1996); Sculpture Installed in Building Lobby Is
Work for Hire, Not Covered by VARA, 51 Pat. Trademark & Copyright
J. (BNA) 139, 141 (Dec. 7, 1995).
n132. See Note, Protection of Artistic
Integrity: Gilliam v. American Broadcasting Cos., 90 Harv. L.
Rev. 473, 480 n.51 (1976).
n133. See Cleary v. News Corp., 30 F.3d
1255, 1260-61 (9th Cir. 1994) (dictum); 3 McCarthy, supra note
92, 27:08[2][c][iii], at 27-113 to -114; 27:08[3], at 27-124 to
-125 (citations omitted). But see Lamothe v. Atlantic Recording
Corp., 847 F.2d 1403, 1407 n.2 (9th Cir. 1988) (suggesting that
failure to attribute may be actionable under 43(a) on an implied
reverse passing off theory (citing Smith v. Montoro, 648 F.2d
602, 605-06 & n.5 (9th Cir. 1981))).
n134. Compare Gilliam v. American Broad.
Cos., 538 F.2d 14, 25 n.13 (2d Cir. 1976) (expressing doubt whether
a disclaimer aired at the beginning of ABC's Monty Python special
would have been sufficient to absolve ABC of liability), with
id. at 26-27 (Gurfein, J., concurring) (endorsing disclaimer theory),
and Rosenfeld v. Saunders, 728 F. Supp. 236, 243-44 (S.D.N.Y.
1990) (denying preliminary injunction, in case involving medical
textbook, on ground that disclaimer was sufficient to prevent
consumers from mistakenly attributing plaintiff's work to defendants),
aff'd mem., 923 F.2d 845 (2d Cir. 1990).
n135. See, e.g., Henry Hansmann &
Marina Santilli, Authors' and Artists' Moral Rights: A Comparative
Legal and Economic Analysis, 26 J. Legal Stud. 95, 116 (1997)
(stating that trademark law "might not provide protection
to an artist who does not already have a substantial reputation");
Kwall, supra note 17, at 24 (stating that any protection an author
receives for his personality rights under unfair competition law
or 43(a) is "fortuitous"); cf. Edward J. Damich, A Critique
of the Visual Artists Rights Act of 1989, 14 Nova L. Rev. 407,
410-11 (1990) (arguing that author whose communication is distorted
suffers injury to personality, even if she suffers no injury to
reputation).
n136. See 15 U.S.C. 1125(a) (1994) (holding
liable only those persons whose activities constitute a "use[
] in commerce"); id. 1127 (defining "use in commerce"
to mean "bona fide use of a mark in the ordinary course of
trade"); see also Tax Cap Comm. v. Save Our Everglades, Inc.,
933 F. Supp. 1077, 1080-81 (S.D. Fla. 1996) (holding that nonprofit
political organization's petitions were not "used in commerce"
for purposes of 43(a)). I thank Margreth Barrett for calling this
point to my attention.
n137. See, e.g., Damich, supra note
45, at 1735-37.
n138. However, case law on the subject
is not entirely lacking. See, e.g., Chamberlain v. Cocola Assocs.,
958 F.2d 282, 283-85 (9th Cir. 1992) (rejecting claim that California
Act requires all contracts for the sale of works of art governed
by the Act to be in writing); Pavia v. 1120 Avenue of the Americas
Assocs., 901 F. Supp. 620, 624-25 (S.D.N.Y. 1995) (discussing
allegations that defendants publicly displayed plaintiff's sculpture
in altered form stated claim under New York Act); Wojnarowicz
v. American Family Ass'n, 745 F. Supp. 130, 136-41 (S.D.N.Y. 1990)
(holding that publishing cropped images of plaintiff's photographs
violates New York Act); Morita v. Omni Publications Int'l, Ltd.,
741 F. Supp. 1107, 1114-15 (S.D.N.Y. 1990) (holding that publishing
photograph of anti-nuclear sculpture on cover of magazine promoting
pro-nuclear stance violates New York Act), vacated, 760 F. Supp.
45 (S.D.N.Y. 1991); Lubner v. City of Los Angeles, 53 Cal. Rptr.
2d 24, 27-29 (Ct. App. 1996) (denying recovery under California
Act for negligent destruction of artist's work); Botello v. Shell
Oil Co., 280 Cal. Rptr. 535, 538-40 (Ct. App. 1991) (holding that
murals are protected works under California Act); Robert H. Jacobs,
Inc. v. Westoaks Realtors, Inc., 205 Cal. Rptr. 620, 624 (Ct.
App. 1984) (holding that architectural plans are not protected
under California Act).
n139. See U.S. Copyright Office, Waiver
of Moral Rights in Visual Artworks: A Report of the Register of
Copyrights (1996) [hereinafter Report].
n140. See id. at 132-33.
n141. See, e.g., id. at 134 (discussing
survey results concerning frequency of waiver clauses); id. at
144 (discussing waivers); id. at 164-80 (discussing various types
of waiver provisions); id. at 189 (discussing "consensus
... that waivability is necessary for works incorporated into
buildings").
n142. See, e.g., id. at 135 (stating
that 61% of visual artists surveyed agreed that oral contracts
were most common in the art world); id. at 191 (noting that "most
contracts for sale of moveable art are oral and thus cannot include
a valid waiver").
n143. See id. at 190 (noting lack of
"evidence that galleries are refusing to sell works without
waivers," or that abolition of waivers "would affect
established artists to the same degree as lesser-known artists").
n144. Cf. id. at 141 (statement of Carol
Pulin, director of the American Print Alliance) (suggesting that
artists generally are hesitant to assert violations of their moral
rights, due to lack of economic resources and fear of retaliation).