In many nations, including most of western Europe, the law has long recognized interests of authors and artists in their work that are separate from copyright and that can be retained by an author or artist even after he has transferred his copyright to another person or persons and (in the case of visual arts, such as painting or sculpture) has also parted with the physical work of art itself. Principal among these legally recognized interests are four distinct rights that are commonly referred to collectively as authors' and artists' "moral rights": the right of integrity, under which the artist can prevent alterations in his work; the right of attribution or paternity, under  [*96]  which the artist can insist that his work be distributed or displayed only if his name is connected with it; the right of disclosure, under which the artist can refuse to expose his work to the public before he feels it is satisfactory; and the right of retraction or withdrawal, under which the artist can withdraw his work even after it has left his hands. Most countries that recognize these rights make them, to a greater or lesser degree, inalienable.

   In contrast, the common-law countries, including conspicuously the United States, historically not only have failed to make explicit provision for such continuing rights of artists in their work but have legal regimes that effectively render unenforceable any effort by an individual artist to craft and retain such rights in his own creations after he has transferred the other elements of ownership. Thus, patterns of rights that are mandatory under the civil-law regimes of Europe have been forbidden by the common law. This is in strong contrast to the usual relationship between these two legal systems: in general, the common law is far more hospitable to the creation of divided property rights than is the civil law. n1

   These differing views of authors' and artists' rights are often presented as a basic distinction between the intellectual property law regimes found in the civil-law countries and those found in the common-law countries. n2 They have long been a subject of considerable debate and controversy, and increasingly so in recent years as the United States and the European Community have struggled to determine whose policies concerning intellectual property will dominate the international legal order. n3 One important focus of this controversy has been the Berne Convention on Copyright, originally drafted in 1886, which requires that signatory countries provide protection for moral rights, including particularly the rights of paternity and integrity. For more than 100 years the United States refused to sign the Berne Convention,  [*97]  in part because of objections to the moral rights clause. n4 Then, in 1989, the United States reversed its position and signed, n5 claiming that U.S. law had evolved to the point where it could be construed, as a whole, to provide the minimal protection for artists' moral rights required by the Convention--and noting further that, even if U.S. law did not provide this minimum protection, other signatory countries were also not in compliance, yet nobody had ever objected. n6

   Many commentators have long argued that, to bring the United States more closely into compliance with the Berne Convention, to establish greater harmony between U.S. law and that of the European Community, and to improve the status of authors and artists, the law in the United States should be reformed to provide greater protection for authors' and artists' moral rights. n7 Partly in response to these pressures, various laws extending these rights have been enacted over the past 2 decades. At least 11 states now explicitly recognize moral rights in greater or lesser degree, n8 and in 1989 Congress enacted the federal Visual Artists Rights Act (VARA), which makes provision for the rights of integrity and attribution. n9 Moreover, even in the absence of specific legislation, American courts have at times offered protection for interests analogous to moral rights through extension of common-law rights or through expansive interpretation of particular statutory rights, such as the trademark laws. Still, it is often argued that more should be done. n10

   Interest in this subject is also high outside the United States. The scope of artists' moral rights varies considerably from one European country to another--with France being generally the most expansive--thus leading to debates as to which regime is superior and to difficulties in harmonizing law among the member states of the European Union. n11 Moreover, within  [*98]  individual European countries there is often considerable controversy about the precise interpretation to be given existing statutory and decisional law concerning artists' moral rights.

. . . . . . .

   Many countries that provide for artists' moral rights, and also the state of California, have in addition adopted what the French term the droit de suite, under which painters, sculptors, and other visual artists have a right to receive a fraction of the price paid on each subsequent resale of a work of art they have created. In a companion essay we discuss the issues--closely related to those discussed here--that are raised by the droit de suite and by resale and display royalties for works of art in general. n16

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   n1 As a matter of general doctrine, the civil law seeks to assure that all rights in a given item of property are held by a single owner, limiting deviations from this arrangement to a restricted set of narrowly defined categories. One consequence of this approach is that the private trust, which has long been a familiar institution in common-law countries, cannot as a general matter be formed under the civil law, since it recognizes simultaneous property interests in both the trustee and the beneficiary. See Henry Hansmann & Ugo Mattei, The Functions of Trust Law: A Comparative Legal and Economic Analysis (working paper, Yale Law School 1996).

   n2 See generally Neil Netanel, Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, 12 Cardozo Arts & Ent. 1, 2 (1994); Paul E. Geller, Toward an Overriding Norm in Copyright: Sign Wealth, 159 Revue internationale du droit d'auteur [hereinafter R.I.D.A.] 3, 27 (1994).

   n3 See, for example, Silke Von Lewinski, The Role of Copyright in Modern International Trade Law, 161 R.I.D.A. 1, 4 (1994); Herman Cohen-Jehoram, The EC Copyright Directives: Economics and Authors' Rights, 25 Int'l Rev. Indus. Prop. & Copyright L. [hereinafter I.I.C.] 821 (1994).

   n4 See Adolf Dietz, The Artist's Right of Integrity under Copyright Law--a Comparative Approach, 25 I.I.C. 177, 179 (1994).

   n5 The signing of the treaty followed congressional passage of the Berne Convention Implementation Act of 1988, Pub. L. 100-568, 102 Stat. 2853 (1988).

   n6 Ralph S. Brown, Adherence to the Berne Copyright Convention: The Moral Right Issue, 35 J. Copyright Soc'y 196, 205 (1987-88).

   n7 See Gerald Dworkin, Moral Rights and the Common Law Countries, 5 Australian Intell. Prop. J. 5 (1994).

   n8 See, generally, Thomas Goetzl, California Art Legislation Goes Federal: Progress in the Protection of Artists' Rights, 15 Hastings Comm. & Ent. L. J. 893 (1993).

   n9 Visual Artists Rights Act of 1990 (VARA), codified at 17 U.S.C. §§ 101, 102, 106(a), 107, 601.

   n10 See, for example, Jane Ginsburg, Moral Rights in a Common Law System, in Moral Rights Protection in a Copyright System 18 (Peter Anderson & David Saunders eds. 1992).

   n11 See A. Dietz, Copyright Law in the European Community (1978); 1995 European Commission Green Paper on copyright and Related Rights in the Information Society, ch. 2, Sec. 7 (Moral Rights), in Journal, Copyright Society of the U.S.A. 50, 103-6 (1996).

   n12 For references, see Paul Goldstein, Copyright's Highway, From Guttenberg to the Celestial Jukebox 170 (1994); Moral Rights Protection in a Copyright System (Peter Anderson & David Saunders eds. 1992).

   n13 See, however, G. Hadfield, The Economics of Copyright: An Historical Perspective, 38 Copyright L. Symp. 1 (ASCAP 1992); P. Goldstein, supra note 12, at 173-79; Roberta Romano, The Author's Right to Credit: An Economic Analysis for Providing Copyright Protection (working paper, Yale Law School 1980).

   n14 Our article is therefore much in the spirit of the work of Landes and Posner, exploring the closely related fields of trademark and copyright. William Landes & Richard Posner, Trademark Law: An Economic Perspective, 30 J. Law & Econ. 265 (1987); William Landes & Richard Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 79 (1989); William Landes, Copyright Protection of Letters, Diaries, and Other Unpublished Works: An Economic Approach, 21 J. Legal Stud. 79 (1992).

   n15 See, for example, Gunnar G. Karnell, The Berne Convention between Author's Rights and Copyright Economics--an International Dilemma, 26 I.I.C. 193, 193-99 (1995); Alain Strowel, Droit d'auteur et copyright: Divergences et convergences 135 (1993).

   n16 Henry Hansmann & Marina Santilli, Resale Royalties for Works of Art: A Comparative Legal and Economic Analysis (working paper, Yale Law School 1996).