76 N.C. L. Rev. 1
North Carolina Law Review
November, 1997

Thomas F. Cotter [FNa1]

Copyright (c) 1997 North Carolina Law Review Association; Thomas F. Cotter

Under the continental doctrine of droit moral, or moral right, the creator of a work of authorship (such as a literary work, a painting, or a film) is viewed as having an inalienable right to prevent others from, among other things, modifying, distorting, or otherwise interfering with the integrity of that work--even after the creator alienates both the physical object in which the work is embodied and its copyright. Over the past two decades, a somewhat weaker version of the doctrine has begun to make inroads into American law as well, culminating in the passage of the Visual Artists Rights Act of 1990. In this Article, Professor Cotter examines the doctrine of moral right through the lens of philosophical and legal pragmatism. Applying first the insights of pragmatic aesthetic theorists, he considers the implications of the droit moral on "art as experience." Second, he applies economic analysis in an effort to predict the likely consequences of moral rights upon the well-being of artists, patrons, and audiences. He concludes that the weak version of the doctrine adopted in the United States has much to recommend it from both a philosophical and economic perspective, but that the more robust version adopted in France and Germany imposes too substantial a risk of stifling artistic innovation and experimentation.

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I. Introduction
In a collection of essays entitled Testaments Betrayed, the novelist Milan Kundera quotes from correspondence between the composer Igor Stravinsky and the conductor Ernest Ansermet concerning Ansermet's plan to make certain cuts in Stravinsky's composition Jeu de Cartes during a performance that was to take place in Paris on October 27, 1937. [FN1] In a letter to Ansermet dated October 14, 1937, Stravinsky forbade the proposed alterations, stating that they were likely to distort the work and that it would be "'better not to play it at all than to do so reluctantly."' [FN2] A few days later, Stravinsky refused Ansermet's amended request to make one "'small cut in the March from the second measure of 45 to the second measure of 58,"' [FN3] arguing that even this relatively modest alteration would "'cripple[ ] my little March, which has its form and its structural meaning in the totality of the composition (a structural meaning that you claim to be protecting)."' [FN4] In conclusion, Stravinsky wrote: You cut my March only because you like the middle section and the development less than the rest. In my view, this is not sufficient reason, and I would like to say: "But you're not in your own house, my dear fellow"; I never told you: "Here, take my score and do whatever you please with it." [FN5] For a contrasting perspective, consider the case of the late nineteenth/early twentieth-century composer and conductor Gustav Mahler. Although one might expect Mahler, as a composer, to have shared Stravinsky's passion for faithful adherence to the score, at least in his role as conductor Mahler exhibited few inhibitions when it came to altering the works of other composers--for example, by introducing thematic alterations and suggested cuts into the works of Schumann, [FN6] by making cuts to the second and fourth movements of Bruckner's Romantic Symphony, [FN7] and by altering the orchestration of Beethoven's Ninth Symphony. [FN8] Many of Mahler's contemporaries objected to these alterations, [FN9] although at least one critic thought that Mahler had shown the Bruckner work "love and comprehension, whereas others battled 'for the letter of the law, and against Bruckner."' [FN10] Mahler himself responded to critics of the Beethoven interpretation by arguing that Beethoven's deafness had caused him to lose contact with the reality of physical sound; that, in light of the improvement in the quality of brass instruments since Beethoven's day, "it would be a crime not to use them to give a more perfect rendering of Beethoven's works"; and that the "customary increase in the number of stringed instruments has made it equally necessary to increase the number of wind instruments, and this was done solely to balance the volume of sound and not to give instruments a new significance." [FN11]
In a nutshell, these stories illustrate the tension that often arises between the "author" [FN12] of a creative work, on the one hand, and those who would like to perform, display, or otherwise use the work, on the other. Should Stravinsky have had the right to stop Ansermet from performing an altered version of Jeu de Cartes--even if, let us suppose, Stravinsky no longer owned the copyright to the work--or should the conductor have had free rein to use Stravinsky's work to express the conductor's own creative vision? [FN13] Should someone--Beethoven's nearest living relatives? the state?--have had the right to prevent Mahler's experimentation? Should a painter or sculptor who sells her work to another be able to enjoin the buyer from subsequently altering the work, even though the artist no longer retains ownership of the physical object in which the work is embodied? Should a novelist or dramatist who purports to sell the right to adapt or perform his work nevertheless retain some veto power over an adaptation that renders his work trivial or vulgar? [FN14]
Under the doctrine of droit moral or "moral right," the author would prevail in disputes of this nature, regardless of whether she continues to own the physical embodiment of or copyright to the work. [FN15] Originally developed in the courts of France and later adopted throughout continental Europe, the droit moral in recent years has begun to win acceptance, albeit on a relatively modest scale, in the United States as well. [FN16] Whether to encourage the further expansion of the droit moral in this country as a means of defending and preserving the integrity of artistic visions, or to reject the doctrine out of preference for the alternative visions of owners, interpreters, and audiences, has been the subject of considerable scholarly debate. [FN17]

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II. An Overview of the Droit Moral

A. Philosophical Antecedents
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. [FN20] Instrumentalist theorists 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. [FN21]
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. [FN22] As a result of this process, the thing possessed comes to embody the owner's personality; [FN23] and by like reasoning a person may alienate property by removing his Will from the thing possessed. [FN24] As Margaret Radin notes, however, for Kant and Hegel "only objects separate from the self are suitable for alienation." [FN25] Thus, in the words of Hegel: [T]hose goods, or rather substantive characteristics, which constitute my own private personality and the universal essence of my self-consciousness are inalienable and my right to them is imprescriptible. Such characteristics are my personality as such, my universal freedom of will, my ethical life, my religion. [FN26]
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). [FN27] 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. [FN28] Kant viewed the author's interest in deciding how and when to speak as an inalienable part of his personality, [FN29] concluding that the author may license, but not alienate, the right to copy his work. [FN30] As an agent, the publisher is obligated to present the work according to the author's wishes. [FN31]
Hegel similarly contended that literary works, as well as other works such as inventions, embody the author's "[a]ttainments, erudition, talents, and so forth," and that these attributes are "owned by free mind and are something internal and not external to it." [FN32] 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. [FN33] 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. [FN34]
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. [FN35] This theory is reflected in the modern German copyright statute. [FN36] Other theorists, such as Josef Kohler, followed Hegel's view that an author may alienate the copyright to her work. [FN37] 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. [FN38] Kohler's theory--which posits two classes of rights, one alienable, the other not--is reflected in the modern French copyright statute. [FN39]

B. Moral Rights in France and Germany
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": [FN40]the droit de divulgation, or right of disclosure; [FN41] the droit de repentir ou de retrait, or right to correct or withdraw works previously disclosed to the public; [FN42] 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. [FN43] These rights are inalienable [FN44] and, to the extent that at least some purported waivers may be deemed unenforceable or revocable, nonwaivable. [FN45] In France, the moral right also is perpetual, [FN46] while in Germany it expires when the author's copyright expires, seventy years after the author's death. [FN47]
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 [FN48] (being attributed as the author of another's work, [FN49] or having another attributed as the author of one's own work); [FN50] (2) a right against nonattribution (the omission of one's name from one's own work); [FN51] (3) a right to publish anonymously or pseudonymously; [FN52] and (4) a right to void a promise to publish anonymously or pseudonymously. [FN53]
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. [FN54] 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," [FN55] 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." [FN56] 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." [FN57]
Courts have found violations of the artist's right of integrity when, for example, the defendant painted over, [FN58] cut up, [FN59] or otherwise destroyed the artist's work; [FN60] displayed distorted reproductions of the work; [FN61] staged a play or opera contrary to the author's [FN62] or designer's [FN63] directions, or with substantial additions or deletions to the text; [FN64] colorized a film; [FN65] or otherwise presented the artist's work out of context. [FN66] 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. [FN67]
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. [FN68] Second, the courts generally permit one 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. [FN69] 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. [FN70]

C. Moral Rights in the United States
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. [FN71] The authorities Roeder cited in support of an attribution right, however, were precarious, [FN72] and he conceded that a plaintiff wishing to vindicate a quasi-right of integrity under a libel or unfair competition theory would face substantial obstacles. [FN73] 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, [FN74] courts generally refused to acknowledge attribution rights [FN75] and were equally disinclined to recognize an expansive right of integrity. [FN76] These decisions led one prominent scholar to conclude that, as of 1976, "[t]he 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." [FN77]
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., [FN78] when the United States Court of Appeals for the Second Circuit endorsed a limited version of moral 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. [FN79] 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. [FN80] 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 s 43(a) of the Lanham Act. [FN81]
Although unsuccessful in their attempt to convince the district court to issue a preliminary injunction, [FN82] 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. [FN83] 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. [FN84] In view of the fact that 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. [FN85] 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." [FN86] 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, [FN87] and that s 43(a) provides a cause of action for passing off a materially distorted version of the plaintiff's work as the genuine item. [FN88] Courts also have concluded that defendants may be liable under s 43(a) for falsely attributing the plaintiff's work to the defendant, [FN89] or vice versa; [FN90] for falsely attributing a jointly authored work to only one co-author; [FN91] and for falsely advertising a plaintiff's earlier works as recent ones. [FN92]
A second development was the passage, beginning in the late 1970s, of state moral rights statutes. [FN93] The first of these was the California Art Preservation Act, [FN94] 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." [FN95] 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," [FN96] and an integrity right, which prohibits the intentional "physical defacement, mutilation, alteration, or destruction of a work of fine art." [FN97] These rights terminate fifty years after the artist's death, [FN98] unless the artist has chosen to waive them in a signed written instrument. [FN99] In a provision unique among state and federal moral rights laws, California law also authorizes "[a]n 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 s 987(c). [FN100]
Among the other state statutes, the one that has generated the most case law and commentary is the New York Artists Authorship Rights Act. [FN101] 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"), [FN102] but also to "limited edition multiples of not more than three hundred copies" [FN103] and to reproductions. [FN104] 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. [FN105] 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 in an altered, defaced, mutilated or modified form if the work is displayed, published or reproduced as being the work of the artist, or under circumstances under which it would reasonably be regarded as being the work of the artist, and damage to the artist's reputation is reasonably likely to result therefrom, except that this section shall not apply to sequential imagery such as that in motion pictures. [FN106]
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; [FN107] and does not specify when his rights terminate. [FN108]
A third major development in the history of droit moral in the United States is the passage of the federal Visual Artists Rights Act of 1990 ("VARA"), [FN109] which amends the Copyright Act of 1976 by expressly providing for limited federal recognition of moral rights. [FN110] Like the California and New York statutes, [FN111] 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, [FN112] or (2) still photographic images produced for exhibition purposes only, existing in a single copy signed by the author or in certain limited edition copies. [FN113} All other works (including motion pictures, literary works, and all "works made for hire") are outside the scope of the Act, [FN114] as are reproductions of works of visual art other than the specified limited edition copies [FN115] 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. [FN116]
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; [FN117] 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." [FN118] 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." [FN119] Unlike her French or German counterpart, 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. [FN120] If not waived, her rights terminate at death, if the work was created after June 1, 1991. [FN121]
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, [FN122] 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. [FN123] The other, Carter v. Helmsley-Spear, Inc., [FN124] involved the threatened alteration or removal 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. [FN125] 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. [FN126] Following a bench trial, the court concluded that the work was a "work of visual art" and not a work made for hire, [FN127] that the distortion or mutilation of the work would be prejudicial to the artists' reputations, [FN128] and that the work was of sufficient stature that its destruction also would violate the act. [FN129] 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.[FN130] On appeal, however, the Second Circuit reversed, concluding that the sculpture was a work made for hire, and therefore outside the scope of VARA. [FN131]
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 enforceable only by the copyright owner, who may be different than the author. [FN132] 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 s 43(a) provides the author with a claim against one who represents a distorted version of the author's work as genuine, s 43(a) arguably provides no affirmative right of attribution, [FN133] may authorize the court to allow the publication or performance of an altered work with a disclaimer, [FN134] and may provide no relief for an author who cannot show some injury to her reputation. [FN135] 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. [FN136]
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 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. [FN137] Moreover, none of the statutes has generated a substantial body of reported case law, [FN138] 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. [FN139] 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, [FN140] and it suggests that written waivers may become increasingly common with respect to commissioned works and works incorporated into buildings. [FN141] 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 written contracts [FN142] therefore suggests that, at least with respect to this class of works, VARA has altered the balance of power in favor of the artist.[FN143] 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. [FN144]


FNa1. Associate Professor of Law, University of Florida College of Law. I wish to thank Margreth Barrett, Jeffrey L. Harrison, Paul J. Heald, Roberta Rosenthall Kwall, Lyrissa Barnett Lidsky, John Henry Merryman, Elizabeth A. Scheffler, and Christopher Slobogin for their comments and criticisms; Elise Batsel and Richard Brooderson for their research assistance; Catherine Morand for her translations of French case law; Andrea T. Sanseverino Galan and Cheryl W. May of the Center for Arts and Culture for providing me with information on arts funding; and the University of Florida Summer Research Grant Program for its support. Any errors that remain are mine.

FN1. See Milan Kundera, Testaments Betrayed 243-46 (Linda Asher trans., 1995).

FN2. Id. at 244 (quoting Letter from Igor F. Stravinsky to Ernest Ansermet (Oct. 14, 1937), in 1 Stravinsky: Selected Correspondence 226 (Robert Craft ed., 1982), with several minor word changes).

FN3. Id. at 245 (quoting Letter from Ernest Ansermet to Igor F. Stravinsky (Oct. 15, 1937), in 1 Stravinsky: Selected Correspondence, supra note 2, at 227).

FN4. Id. (quoting Letter from Igor F. Stravinsky to Ernest Ansermet (Oct. 19, 1937), in 1 Stravinsky: Selected Correspondence, supra note 2, at 226).

FN5. Id.; cf. Bernard Holland, Updated, and That's Not All, N.Y. Times, Oct. 7, 1996, at C1 (speculating whether Stravinsky's heirs would sue over director Peter Sellars's inventive production of Stravinsky's opera The Rake's Progress).

FN6. See Kurt Blaukopf, Gustav Mahler 155-56 (1973) (discussing Mosco Carner's investigations into Mahler's Schumann arrangements).

FN7. See 2 Henry-Louis De La Grange, Gustav Mahler 231 (1995).

FN8. See Blaukopf, supra note 6, at 150-56; 2 De La Grange, supra note 7, at 232-37; Michael Kennedy, Mahler 63-64 (1990).

FN9. See Blaukopf, supra note 6, at 150-52, 156; 2 De La Grange, supra note 7, at 231, 233-37.

FN10. 2 De La Grange, supra note 7, at 232 (paraphrasing and quoting uncited review by Wiener Abendpost music critic Robert Hirschfeld, following January 28, 1900, performance of Vienna Philharmonic Orchestra). Compare the following story told by Alastair Reed, concerning his English translation of Pablo Neruda's poetry: [Neruda] was always ready to answer any questions I had about [the poems], even to talk about them, fondly, as about lost friends, but he was not much interested in the mechanics of translation. Once, in Paris, while I was explaining some liberty I had taken, he stopped me and put his hand on my shoulder. "Alastair, don't just translate my poems. I want you to improve them." Alastair Reid, Neruda and Borges, New Yorker, June 24 & July 1, 1996, at 56, 70.

FN11. Kennedy, supra note 8, at 208 (quoting leaflet prepared by Mahler and distributed prior to Vienna Philharmonic Orchestra concert of February 22, 1900); see also Blaukopf, supra note 6, at 153-55 (describing controversy over Mahler's interpretation of Beethoven); 2 De La Grange, supra note 7, at 232-37 (same). Blaukopf argues that Mahler's retouching of the Ninth Symphony was a laudable attempt to better discern the composer's vision, which had become distorted over the years due in part to the changed acoustics of the late nineteenth-century concert hall. See Blaukopf, supra note 6, at 153-55. Mahler himself argued that his interpretation of Beethoven was neither a "re- orchestration" nor an "improvement," but rather a more faithful rendering of "what the Master demands." Kennedy, supra note 8, at 208 (quoting Mahler's leaflet).

FN12. Throughout this Article, I shall use the terms "author," "artist," and "creator" interchangeably to refer to any person who creates a literary work, musical composition, motion picture, or other "work of authorship" as that term is defined under the Copyright Act. See 17 U.S.C. s 102(a) (1994).

FN13. Under United States law, copyright in works created on or after January 1, 1978, subsists from creation of the work and, subject to certain exceptions, endures for a term consisting of the life of the author plus 50 years. See id. s 302(a). For most works created prior to January 1, 1978, and not yet in the public domain as of that date, the copyright term endures for a total period of 75 years. See id. s 304(a)-(b). The owner of the copyright acquires the exclusive right to reproduce the work in copies or phonorecords, to prepare derivative works based upon the copyrighted work, to distribute copies or phonorecords of the work to the public, and, with respect to most works of authorship, to publicly perform and display the work. See id. s 106. Thus, in the above example, if Stravinsky had assigned or licensed the copyright to Jeu de Cartes to Ansermet without restriction, then under U.S. copyright law Ansermet would have had the right to perform the work publicly however he saw fit, over Stravinsky's objections. I do not know whether, as a matter of historical fact, Stravinsky owned the copyright to Jeu de Cartes at the time of his quarrel with Ansermet, or whether he had assigned or licensed it to someone else. Presumably, any issues relating to the performance would have been governed by French law.

FN14. Cf. John Lyttle, 'Mike Sarne? Mike Sarne? Why?', Indep. (London), July 17, 1993, at 30, available in LEXIS, News Library, Arcnws File (quoting novelist Gore Vidal as stating that the film version of his novel Myra Breckinridge is "one of the worst films ever made"); Gary Arnold, All Rogues Lead to Rome, Wash. Post, Mar. 31, 1980, at B1, available in LEXIS, News Library, Arcnws File (discussing Vidal's disavowal of film Caligula). One can only guess the reaction of Nathaniel Hawthorne, from whatever realm his spirit now inhabits, to the 1995 retelling of The Scarlet Letter featuring Demi Moore.

FN15. See infra notes 54-70 and accompanying text.

FN16. See infra notes 40-144 and accompanying text.

FN17. See, e.g., Lawrence Adam Beyer, Intentionalism, Art, and the Suppression of Innovation: Film Colorization and the Philosophy of Moral Rights, 82 Nw. U. L. Rev. 1011 (1988); Edward J. Damich, The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors, 23 Ga. L. Rev. 1 (1988); Russell J. DaSilva, Droit Moral and the Amoral Copyright: A Comparison of Artists' Rights in France and the United States, 28 Bull. Copyright Soc'y 1 (1980); Roberta Rosenthall Kwall, Copyright and the Moral Right: Is an American Marriage Possible?, 38 Vand. L. Rev. 1 (1985); John Henry Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1023 (1976); Neil Weinstock Netanel, Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Normative Evaluation, 24 Rutgers L.J. 347 (1993); Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554 (1940).


FN20. 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).

FN21. 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.

FN22. See G.W.F. Hegel, Philosophy of Right ss 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, ss 41, 44-46.

FN23. See Hegel, supra note 22, s 51.

FN24. See id. ss 53, 65; Kant, supra note 22, at 101.

FN25. Margaret Jane Radin, Contested Commodities 34 (1996).

FN26. Hegel, supra note 22, s 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)).

FN27. See Kant, supra note 22, at 129-31; Immanuel Kant, Von der Unrechtmassigkeit des Buchernachdrucks [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).

FN28. 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).

FN29. 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").

FN30. See Kant, Injustice, supra note 27, at 215; Netanel, supra note 17, at 376; Palmer, supra note 20, at 839.

FN31. 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. s 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.

FN32. Hegel, supra note 22, s 43.

FN33. See id. ss 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. s 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).

FN34. See Hegel, supra note 22, s 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. s 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, s 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").

FN35. 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.

FN36. See Gesetz uber 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, s 4 [2], at GER-48 to -49 (Melville B. Nimmer & Paul Edward Geller eds., 1996); Netanel, supra note 17, at 379.

FN37. 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.

FN38. Josef Kohler, Urheberrecht an Schriftwerken und Verlagsrecht 15 (1907), quoted in Katz, supra note 37, at 402 & n.148.

FN39. 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.

FN40. "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, s 7, at FRA-97. The analogous German term, Urheberpersonlichkeitsrecht, means "author's right of personality." Dietz, supra note 36, s 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." 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, s 4[3][e], at GER-61 (discussing German law of droit de suite); Lucas & Plaisant, supra, s 4[3][e], at FRA-83 (discussing French law of droit de suite). These additional rights are beyond the scope of this Article.

FN41. 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, s 7[1][a], at GER-85 to -86; Lucas & Plaisant, supra note 40, s 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).

FN42. 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, s 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.

FN43. Article L.121.1 of the French Act codifies these latter two rights, stating that "[t]he author shall enjoy the right of respect for his name, his authorship, and his work," and that "[t]his 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.

FN44. See French Act, supra note 39, art. 6; Dietz, supra note 36, s 7[4], at GER-92; Lucas & Plaisant, supra note 40, s 7[4][a], at FRA-110.

FN45. 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, s 7[4], at GER-93 ("[O]ne can say that the core of moral right protection always remains 'with' the authors."); Lucas & Plaisant, supra note 40, s 7[4][a], at FRA-110 (discussing inalienability and waivability), s 7[4][b], at FRA-112 (discussing waivability). But see Lucas & Plaisant, supra note 40, s 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.

FN46. See French Act, supra note 39, art. 6; Lucas & Plaisant, supra note 40, s 7[3], at FRA-110.

FN47. See Dietz, supra note 36, s 7[3], at GER-91.

FN48. 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.

FN49. 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).

FN50. See Damich, supra note 17, at 13 (citing Henri Desbois, Le Droit d'Auteur en France 510 (3d ed. 1978)); Dietz, supra note 36, s 7[1][b], at GER- 86 to -87; Lucas & Plaisant, supra note 40, s 7[1][b], at FRA-102.

FN51. See Damich, supra note 17, at 13; DaSilva, supra note 17, at 26; Dietz, supra note 36, s 7[1][b], at GER-86; Lucas & Plaisant, supra note 40, s 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.

FN52. See Dietz, supra note 36, s 7[1][b], at GER-86 to -87; Lucas & Plaisant, supra note 40, s 7[1][b], at FRA-101.

FN53. 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, s 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, s 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").

FN54. 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.").

FN55. Merryman, supra note 17, at 1027.

FN56. Netanel, supra note 17, at 387 (citing Stig Stromholm, Droit Moral--The International and Comparative Scene from a Scandinavian Viewpoint, 14 Int'l Rev. Indus. Prop. & Copyright L. 1, 30 (1983)).

FN57. 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)).

FN58. 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).

FN59. 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).

FN60. 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.

FN61. 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).

FN62. 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).

FN63. 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, s 7[c][i], at FRA-102 to -103.

FN64. 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)).

FN65. 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).

FN66. 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, s 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).

FN67. See, e.g., Strauss, supra note 41, at 509.

FN68. 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, s 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"), s 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, s 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).

FN69. See Damich, supra note 17, at 15-16, 23; DaSilva, supra note 17, at 34-36; Dietz, supra note 36, ss 7[2], 7[4], at GER-88 to -95; Gorman, supra note 68, at 426-27; Lucas & Plaisant, supra note 40, s 7[4][a], at FRA-110 to - 111.

FN70. See DaSilva, supra note 17, at 36-37; Gorman, supra note 68, at 426- 27, 429; Sarraute, supra note 41, at 482.

FN71. See Roeder, supra note 17, at 578.

FN72. 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).

FN73. 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.

FN74. 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).

FN75. 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").

FN76. 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).

FN77. Merryman, supra note 17, at 1035-36 (footnote omitted).

FN78. 538 F.2d 14 (2d Cir. 1976).

FN79. See id. at 17.

FN80. See id. at 17-18.

FN81. See id. at 18-20 & n.3, 23-24. In relevant part, the current version of Lanham Act s 43(a) states: Any person who, on or in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act. 15 U.S.C. s 1125(a)(1) (1994).

FN82. See Gilliam, 538 F.2d at 18.

FN83. See id. at 19-26.

FN84. See id. at 19-23.

FN85. 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. s 106(2) (1994), to prepare derivative works. See, e.g., 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright s 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).

FN86. Gilliam, 538 F.2d at 24-25 (citation omitted).

FN87. See supra note 85 (citing cases).

FN88. 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).

FN89. See, e.g., Waldman Publ'g Corp. v. Landoll, Inc., 43 F.3d 775, 780-85 (2d Cir. 1994).

FN90. See, e.g., King v. Innovation Books, 976 F.2d 824, 828-29 (2d Cir. 1992).

FN91. See Lamothe v. Atlantic Recording Corp., 847 F.2d 1403, 1405-08 (9th Cir. 1988).

FN92. 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 s 106(2) of the Copyright Act and s 43(a) of the Lanham Act, see 3 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition ss 27:77 to:90 (4th ed. 1997); 3 Nimmer & Nimmer, supra note 85, ss 8D.03, 8D.04.

FN93. 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, ss 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).

FN94. Cal. Civ. Code s 987 (West Supp. 1997).

FN95. Id. s 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, s 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 s 987(f).

FN96. Cal. Civ. Code s 987(d). For a discussion of what may count as a "just and valid reason," see 3 Nimmer & Nimmer, supra note 85, s 8D.08[B], at 8D-107.

FN97. Cal. Civ. Code s 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. s 987(c)(2).

FN98. See id. s 987(g)(1).

FN99. See id. s 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. s 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. s 987(h)(2)-(3).

FN100. Id. s 989(c); see also id. s 989(b) (discussing further requirements); s 989(e) (imposing restrictions if work cannot be removed from real property without suffering substantial harm).

FN101. N.Y. Arts & Cult. Aff. Law s 14.03 (McKinney Supp. 1997).

FN102. Id. s 11.01(9).

FN103. Id. s 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. s 14.03(3)(e).

FN104. See id. s 11.01(16).

FN105.. Id. s 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.

FN106. Id. s 14.03(1). The Act also exempts "[a]lteration, 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. s 14.03(3)(a)-(c).

FN107. For a discussion of whether waivers are enforceable under New York law, see Damich, supra note 45, at 1744-45.

FN108. 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).

FN109. Visual Artists Rights Act of 1990, Pub. L. No. 101-650, ss 601-610, 104 Stat. 5089, 5128-33 (codified as amended in scattered sections of 17 U.S.C.).

FN110. 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, s 2(3), 102 Stat. 2853 (1989) (published in the notes following 17 U.S.C. s 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, s 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).

FN111. 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. s 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. s 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, s 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).

FN112. See 17 U.S.C. s 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.

FN113. See id. Limited editions of "200 copies or fewer that are signed and consecutively numbered by the author" fall within this definition. Id.

FN.114. 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.

FN115. See id. s 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).

FN116. See 17 U.S.C. s 106A(d)(2).

FN117. See id. s 106A(a)(1)(A)-(B).

FN118. Id. s 106A(a)(2).

FN119. Id. s 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 s 106A(a)(2) or the integrity rights of s 106A(a)(3). See id. s 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. s 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. 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. s 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.

FN120. See 17 U.S.C. s 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. s 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 s 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, s 8D.06[C][3], at 8D-81; s 8D.06[D], at 8D- 84 (discussing legislative history concerning transfers of waivers).

FN121. See 17 U.S.C. s 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. s 106A(d)(2); 3 Nimmer & Nimmer, supra note 85, s 8D.06[E], at 8D-88 to - 89 & n.198.

FN122. 901 F. Supp. 620 (S.D.N.Y. 1995).

FN123. See id. at 628-29.

FN124. 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).

FN125. Id. at 312.

FN126. See id. at 313.

FN127. See id. at 314-23.

FN128. See id. at 323-24. On the basis of the legislative history of VARA, the court concluded that a plaintiff may prevail under s 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.

FN129. 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.

FN130. See id. at 336-38.

FN131. 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).

FN132. See Note, Protection of Artistic Integrity: Gilliam v. American Broadcasting Cos., 90 Harv. L. Rev. 473, 480 n.51 (1976).

FN133. See Cleary v. News Corp., 30 F.3d 1255, 1260-61 (9th Cir. 1994) (dictum); 3 McCarthy, supra note 92, s 27:08[2][c][iii], at 27-113 to - 114; s 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 s 43(a) on an implied reverse passing off theory (citing Smith v. Montoro, 648 F.2d 602, 605-06 & n.5 (9th Cir. 1981))).

FN134. 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).

FN135. 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 s 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).

FN136. See 15 U.S.C. s 1125(a) (1994) (holding liable only those persons whose activities constitute a "use[ ] in commerce"); id. s 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 s 43(a)). I thank Margreth Barrett for calling this point to my attention.

FN137. See, e.g., Damich, supra note 45, at 1735-37.

FN138. 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).

FN139. See U.S. Copyright Office, Waiver of Moral Rights in Visual Artworks: A Report of the Register of Copyrights (1996) [hereinafter Report].

FN140. See id. at 132-33.

FN141. 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").

FN142. 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").

FN143. 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").

FN144. 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).