Academic journal article Texas Law Review

Moral Rights: Well-Intentioned Protection and Its Unintended Consequences*

Academic journal article Texas Law Review

Moral Rights: Well-Intentioned Protection and Its Unintended Consequences*

Article excerpt

Introduction

The issue of moral rights protection has long been one of the most intensely debated issues in American property law. In 1990, Congress ceased its decades-long resistance to providing federal moral rights protection and enacted the Visual Artists Rights Act (VARA) as a step toward compliance with Article 6bis of the Berne Convention for the Protection of Literary and Artistic Work, which the United States joined in 1988.1 VARA protects the attribution and integrity rights of "author[s] of a work of visual art."2 Though an artist can waive these rights under narrow circumstances,3 they are otherwise nontransferable,4 exist for the duration of the artist's life,5 and are independent of any ownership right or copyright in the work.6 Far from ending the moral rights debate, however, the incorporation of VARA into the Copyright Act has sparked further contention, mostly from scholars who claim that VARA's limited scope and duration provide "too little protection to too few artists";7 that its waiver provision obviates any protection of the artist "against himself";8 and that even the limited class of rights VARA does protect is underenforced by courts.9

Despite the ancient philosophic and natural-law arguments advanced for moral rights protection-which date back to the days of Michelangelo10 and emphasize both the social importance of art as well as art's role as a continuing communication to the public of the artist's personality11-moral rights protection has no place in the United States, let alone as part of the Copyright Act, which is principally aimed at promoting artists' and authors' incentives to create by granting them a temporary monopoly right over their work.12 By providing a default rule under which the artist retains the right to "prevent any intentional distortion, mutilation, or other modification of [his or her] work which would be prejudicial to his or her honor or reputation,"13 as well as the right to "prevent any destruction of a work of recognized stature,"14 even after the artist has sold the work, integrity rights protection takes two "sticks" out of an artwork purchaser's hypothetical "bundle of sticks"-the right to alter the work, and the right to destroy it.15 The removal of these two traditional indicia of property ownership from the set of property rights a purchaser receives upon buying a piece of artwork diminishes the value of the economic rights in the work, which ultimately harms not only the artist, but also society as a whole, to the extent that artistic expression and the social dialogue it creates are deemed socially desirable.

When considered in conjunction with the arguments advanced in favor of "integrity rights" protection-namely, that such protection is necessary to promote artistic creation and society's interest in preserving irreplaceable works of art-the real impact of integrity rights protection on artists and society seems truly perverse. In this Note, I will analyze broad moral rights protection from an economic perspective in an attempt to explain why such perverse results are inevitable, focusing on the fact that arguments for integrity rights protection are based on several fundamental misconceptions about the nature of art, the art market, and artists' supply decisions. In Part I, this Note provides a brief overview of moral rights, discussing what they are, how they originated, and how they are protected in other countries. Part II outlines several of the most common arguments advanced to support the most controversial moral right-the right of integrity. Then, Part III sets forth an argument against integrity rights protection, arguing specifically that artwork should not be treated differently than other commercial goods and that, to the extent integrity rights advocates argue otherwise, they threaten to harm not only artists but also the public interest in art. I also argue that while the supply decisions of artists are different than the supply decisions of other intellectual property creators, these differences counsel against extending protection beyond the artists' economic interests in their work. …

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