The Visual Artists Rights Act of 1990 Is Too Narrowly Applied to Photographic Works of Art

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INTRODUCTION

For art to flourish in our culture, society must set artists free to follow their vision wherever it takes them. In an effort to protect artists and their work, Congress passed the Visual Artists Rights Act of 1990 ("VARA") (1). However, VARA's application is extremely limited. In Europe, an artist is afforded greater protection than artists are afforded in the United States. Artists in Europe are legally protected because they are permitted to safeguard the works that form their reputations. The interests protected by this right concern how artists present their works to the public, and the way they preserve their identifications with the works. This protectable interest is referred to as the artist's "moral interests" and the specific right guarding the interests is called droit moral, or the artist's "moral right" (2) Neither moral right nor the preservation of the national cultural heritage is specifically provided for in the United States (3).

The focus of this article is on protections for the visual arts, focusing on fine art photographers and their images. This article compares the French droit moral with the rights provided by the United States under VARA, illustrating the differences between both systems. This article argues that VARA is too narrowly applied to photographic works of art, while distinguishing photographs from other types of visual art media such as painting, sculpture, and drawing.

This article contends how fine art photographers in the United States should be afforded the same protections that fine art photographers in Europe are afforded under droit moral. VARA provides artists with a minimum threshold of protection, and this article emphasizes the importance of strengthening that protection.

BACKGROUND

The doctrine of moral right originated in France as the civil law doctrine of "droit moral (4). Droit moral protects artists' personality rights in their works of art based on the belief that an artist's personality is embodied in, and inseparable from, the artist's work of art (5). Therefore, injuring an artist's work of art also injures the artist's reputation (6).

Many countries have protected artists' moral rights in compliance with their membership in the Berne Convention for the Protection of Literary and Artistic Works (7), which have afforded comprehensive moral right protection to authors (8). The United States resisted joining the Berne Convention for over a hundred years, in a large part due to its difficulties in meeting the requirements of Article 6 bis, which requires member countries to recognize moral rights (9), specifically Article 6 bis that provides:

(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have 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 (10).

(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiration of the economic rights. (11) (3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed (12).

On March 1, 1989, the United States joined the Berne Convention (13). The Final Report of the Ad Hoc Working Group on United States Adherence to the Berne Convention reported that the United States still did not create a federal statute when the existing United States law was complied with Article 6 bis (14). However, one year later Congress passed the Visual Artists Rights Act of 1990 ("VARA") (15). In enacting VARA, Congress sought to strengthen its commitment to the Berne Convention (16) ant to provide uniformity to national copyright laws, believing that a uniform federal law would more effectively stimulate artists' creativity (17). …