A Comparative Law Analysis of the Retained Rights of Artists
Kowalski, W. W., Vanderbilt Journal of Transnational Law
TABLE OF CONTENTS I. INTRODUCTION II. ORIGINS OF ARTISTS RIGHTS III. LEGAL FORMULATION OF ARTIST'S RIGHTS IV. ARTIST'S RETAINED RIGHTS VS. OWNER'S RIGHTS: CAN THEY BE RECONCILED? A. The Right of Paternity or Attribution B. The Right of Access C. The Rights of Disclosure (Divulgation) and of Withdrawal (Retrait) D. The Right to Exhibit E. The Right of Integrity F. Droit de Suite and Exercise of Copyright V. CONCLUSIONS
This Article presents an analytical and theoretical discussion of how an artist's artwork should be treated once it enters the global marketplace. Considering only the visual arts, the answer is short and simple: this Author believes that all, or at least the better-known legal systems, uphold the rights granted to the artist when the work was created. Consequently, the artist retains some rights not only as the artist's intellectual property, but also in its tangible manifestation, for example, sculpture or painting--traditionally called corpus mechanicum--even though he does not own this particular sculpture or painting anymore. This, however, is only a simple explanation: the remainder of the problem is decidedly more complex. Transfer of ownership of the art object to a third party results in the imposition of the artist's rights on the property rights of the new owner of the work. In law this phenomenon is not anything new or special: similar examples exist in other areas. For example, when there are adjoining pieces of real estate, property law differentiates between certain competing neighbors' rights. As is easily seen, not all rights are created equal; on the contrary, some rights are mutually exclusive, thus creating areas of potential conflict. The problem does not exist as long as the artist retains the ownership of his work and its material embodiment because he is the only owner of the both aspects of the work. The moment of sale is the beginning of a hypothetical conflict with the new owner. Sometimes the hypothetical conflict becomes very real and requires application to a court for resolution. The judgment in such a case depends on the legal system in question, but regardless of the jurisdiction, it is often very difficult to gauge the outcome of such a conflict. Courts are not uniform in their decisions and the legal systems vary widely--even in the increasingly global world. This diversity results from, on one hand, a different appraisal of interests which come into play, and on the other hand, the enduring nature of some philosophies about artists' work and the work's purposes. Understanding these differences is fundamental to understanding the status of an artist versus the status of his work. Therefore, it is appropriate to start with some historical background. It will be necessary to concentrate on so called "moral" and "moral-like" rights; only these rights can be retained by the artist after the art object has been sold or disposed in another way.
II. ORIGINS OF ARTISTS RIGHTS
A long time ago there were no ownership conflicts. Millions of people visit Egypt each year to gaze on the remains of pyramids, sculptures, and paintings and probably do not realize that the artists who created these monuments of art were treated as narrow-minded, anonymous craftsmen; they were respected, at most, as makers of these wonders, but not as their creators. (1) Their work was seen as pure physical labor and, according to standards of the times, was disdained. It was difficult, therefore, to even think about artist-laborer rights.
The other reason artistic work was held in such low esteem was attributable to the place occupied by art in the ancient world. Art was purely functional in character and was mostly used to show religious images or to be a tool for propaganda. In such circumstances the creator of art had to remain completely anonymous and had no artist's rights. …