- I. Introduction
- II. Artists and Their Rights in the Age of Copyright
- III. Moral Rights in the United States Are Underdeveloped
- IV. Moral Rights Recognized Under the Visual Artists Rights Act
- V. Other Allied Personal Rights of Artists
- VI. Conclusion
Courts and policymakers do not really seem to understand how art gets made. But the fault probably should not lie with them. A better culprit might be Giorgio Vasari, who wrote the biographies of art masters and in so doing helped invent the idea of the Renaissance. Vasari’s myth-building has left us with a rather warped view of the act of creation. As English Professor Martha Woodmansee points out, the way that we see authorship today is a product of the Western European view during the Renaissance that authors were either craftsmen who mastered the tasks put before them for the “cultivated audience of the court” or may have been “inspired” by external forces. The myth tells us that Renaissance masters created works of breathtaking beauty and the rest of the mass of artists and future generations are left to imitate and recreate. Of course as Professor Alfred Yen has argued in contrast: “Authorship is therefore not the creation of works which spring like Athena from the head of Zeus, but the conscious and unconscious intake, digestion, and transformation of input gained from the author’s experience within a broader society.” Unfortunately, the law still rests on the earlier, romanticized myth of the Renaissance artist. The personal rights of artists have developed in a halting and unsatisfying way, largely because the law rests on stale notions of how creativity works. American copyright has historically favored economic rights as opposed to the personal rights of artists. But the arts economy has too often produced unsatisfying results. There are no guarantees that the invisible hand of the art market will reward artists for the years of hard work and dedication that their artistic practice requires.
We are left then with too few successful artists and artworks. The reticence with which American courts have enforced the moral rights of artists has not dampened the need to clarify them, however. Though there are well-founded concerns with the concept of moral rights, the reality remains that these are inherent rights that continue to emerge in disputes between creators and copyright holders, owners of physical works, and even appropriators (responsible or not). The main focus of this Article will be the moral rights of visual artists, but these issues could potentially impact any creator or author.
Take, for example, the comedian Patton Oswalt, who attempted to put on a comedic play about life in a WWII-era concentration camp written by legendary actor and comedian Jerry Lewis. Another example has been the increasing ability of online publications to scrub past versions of stories without the consent of the reporter. Consider also the massive 2008 fire at Universal Studios Hollywood that burned for nearly twenty-four hours. At the time, Universal Music Group claimed nothing had been lost, but years later we now know the blaze destroyed half a million master tracks by artists such as Billie Holiday, Muddy Waters, Aretha Franklin, Chuck Berry, and dozens of other prominent recording artists. This negligent destruction is the exact kind of personal right that moral rights law can remedy, but instead the artists are left with a patchwork of incomplete neighboring causes of action. Whatever policy proposal for remedying or preventing these actions we might decide on, the reality remains that moral rights claims are not going away. As more and more of the economic rights to our collective creations become owned in the more concentrated hands of social media companies, publishing houses, movie studios, and large copyright holding corporations, there will continue to be tension among who gets to decide what happens to the material we all create.
This Article first argues that artists’ personal rights have been diminished at the expense of copyrights, which puts American artists in the odd situation in which their rights are enforced better abroad than in their home country.
Second, this Article accounts for the prominent criticisms that moral rights have endured among American courts and legal writers and examines the flaws in much of that criticism.
Third, this Article summarizes and critiques the rights that artists are granted under the federal statutory scheme and treaty obligations. It argues that these rights have been consistently undercut because courts and defendants have too often based their defenses and opinions on economic and property principles at the expense of treaty obligations and the plain text of the statutory scheme that has granted personal rights to artists.
Fourth, this Article examines some of the personal rights of artists that have been vindicated under common law and other theories to show that these rights are integral to the personality of individual authors and artists.
II. Artists and Their Rights in the Age of Copyright
While the holders of the economic rights embedded in copyright have largely flourished, the corresponding personal rights of artists have not. As Professor Roberta Rosenthal Kwall has argued, “Our legal structure must reflect a fuller comprehension of the creative being so that it can respond more effectively to all aspects of authors’ needs.” The reality for artists today is much more complicated than it has ever been, as art historian and general counsel for Creative Commons Virginia Rutledge put it, “[T]he contemporary art patronage system is rather more complicated than selling the Pope on a grand idea.” In fact, the ways in which ideas spring to the minds of creators are rich and diverse; seldom are they as Henri Poincaré argued, the product of “sudden illumination” alone, and are instead “a manifest sign of long, unconscious prior work.” Moral rights doctrine should account for the changing needs of artists and adapt. These rights are tied directly to the personal dignity and personality of creators and are not, as has too often been argued, another right in a series of economic rights that can simply be bargained away in contract. This shabby treatment of moral rights has a long history in the uneasy origins of the doctrine in England and America and in the efforts to undermine its effectiveness by some policy advocates and large rights holders.
A. Moral Rights in the United States
International recognition of the rights of integrity and attribution was first achieved with the 1928 Rome Revision of the Berne Convention. Other nations have not had difficulty effectively integrating moral rights principles into their legal systems. This may seem surprising given how from the very birth of the United States, the rights of authors and inventors were on the minds of the Framers. Article I, Section 8 of the Constitution grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The Framers sought a United States which was “culturally competitive” with other nations. This idea can be seen in the cases involving works of art and legal writings of the eighteenth and nineteenth century as well. In 1758, Emmerich de Vattel laid out the emerging rule governing the conduct of combatants on foreign soil which prohibited the destruction and pillage of cultural objects. De Vattel applied a moral rights doctrine to cultural objects during armed conflict by arguing that works which “do honour to human society” should be preserved even during war and that “works of a remarkable beauty” should be preserved. During the War of 1812, a vessel carrying works of art destined for the Philadelphia Museum of Art was captured by the British Navy, and the art was taken as a prize of war. The Vice Admiralty Court in Nova Scotia held that the art could not be taken as a prize and that art was part of the common heritage of mankind, thus protected from seizure during war. In justifying his holding, Sir Alexander Croke connected the power of the art to personally impact future generations of artists:
The time may shortly come when in an advanced state of the arts, to which this very institution, which is now before the court as a petitioner, may contribute its share, new Wests may arise to revive the school of the Rafaelle in the wilds of America; and when likewise, by a corresponding improvement in moral feeling, the public taste may be too highly cultivated to bear with such hideous deformities as the picture of a country priding itself upon its liberty and independence, yet submitting to be the tool of a foreign despot . . . .
Sir Croke’s use of the moral feeling connects nicely with the personal nature of moral rights. Objects, like art, which become part of a shared, cultural heritage, are the common heritage of all mankind, and this personal connection shares many traits with the personal moral rights of artists in their creations.
There are a number of important state moral rights statutes. The recognition of moral rights in the United States at the federal level came in the form of a 1990 amendment to the 1976 Copyright Act known as the Visual Artists Rights Act (VARA). VARA was intended to bring the United States into compliance with the Berne Convention, which the United States had joined two years earlier. As Professor Kwall notes, one of the main problems VARA has had in impacting artists’ rights has been the “widespread ignorance of its existence.” Article 6bis of the Berne Convention recognizes the rights of integrity and attribution. VARA also protects these rights for certain visual artists by prohibiting any unauthorized, intentional modifications to their works that could prejudice the artist’s honor and reputation. Also, VARA protects an artist’s right of attribution, though it does not guarantee an author the ability to exercise the rights to create art anonymously. VARA also offers heightened protection for works of art which have earned recognized stature by granting the artist the right to prevent their destruction via intentional or grossly negligent acts. These protections apply to a narrow category of visual art which includes paintings, drawings, prints, and sculptures. The text of the statute also has left courts and litigants with the task of defining important terms such as prejudice, honor, and recognized stature.
B. Origins of Moral Rights
The hesitance to fully embrace moral rights has certainly occurred in both the United States and the United Kingdom. In 1952, a parliamentary government copyright committee described moral rights as being “unknown to our jurisprudence.” In surveying the origins of moral rights in various common law systems around the world, Professor Gerald Dworkin observed “that the concept of moral rights played little, and some may argue no, role in the subsequent development of copyright in common law countries.” The first draft of the Berne Convention did not mention moral rights either; it was not until the 1928 Rome Conference that a number of countries pushed for the recognition of moral rights.
The term moral rights in this context stems from the French “droit moral de l’auteur,” or the author’s moral rights, which first emerged in early nineteenth century French court decisions. Though the term moral rights in English has dominated the rights of artists, in French, the word “moral” has no precise English equivalent in the moral rights context. But, the words “spiritual,” “non-economic,” and “personal” get closer to the proper meaning intended in French. That personal bond is indeed the root of the right. A leading English treatise on moral rights argues in fact that:
The concept and justification for moral rights is the notion that the personality of the author is bound up in and expressed by his work. . . . [C]oncerned with protecting the expression of the author’s personality and his personal and continuing relationship to his work, as distinguished from the author’s economic rights; the latter enable him to exploit his works commercially.
Yet, early eighteenth century English precedents do show that at common law an author had rights in their creations, including a perpetual copyright. The Fine Arts Copyright Act of July 1862 has been pointed to by some as being a sign of Great Britain’s early adoption of moral rights protection through its copyright legislation. That 1862 legislation was in effect until 1956 with the passage of the Copyright Act. In the Copyright Act, “paintings, drawings and photographs were protected for the first time,” granting “protection for the life of the author and seven years thereafter, subject to registration at Stationer’s Hall.” The Copyright Act provided “for penalties on persons responsible for fraudulent productions and sales of paintings, drawings and photographs.” The fraudulent acts also concern the unauthorized use of fraudulent signatures or initials, selling works bearing fraudulent signatures, and passing off imitations of works as having been made by the author of the original work.
In England, much like the United States, there was no introduction of statutory moral rights until the adoption of the Copyright, Designs and Patents Act of 1988. Instead, existing protections were found in other common law doctrines such as “contract, passing off, defamation, injurious falsehood, slander of goods, breach of confidence and the general law of torts.”
The situation in France was different, though, where the concept of moral rights was born. The origin of moral rights of the artist in France was “entirely judicial,” a departure from our often wrongheaded assumption that civil law is crafted by legislators not judges. The revolutionary decrees of 1791 and 1793 are the source for the recognition of rights flowing to a work’s creator, which recognized the rights of both performance and reproduction. The drafters of those revolutionary decrees invoked natural rights as rationales informing the decrees. In introducing the Decree of 1791, Le Chapelier exclaimed: “The most sacred, most legitimate, most unassailable, and if I may put it this way, the most personal of all properties, is a work which is the fruit of the imagination of a writer.” French courts gave life to this idea in discussing the personality of authors:
The quintessentially personalist orientation of the droit moral was neither part of French law from the start nor an inevitable development within it. For all its air of fundamental principle, as a historical phenomenon the droit moral was formed piecemeal, from the decisions of French courts and from the work of academic theorists.
One of the earliest known moral rights judgments in France was decided in 1814. The dispute involved the rights of paternity and integrity. The case involved the text of a manuscript that was to be published without the author’s consent but with his name attached. The court held that a publisher had no right to amend or edit the text of a manuscript without consent of the author. Later, in 1828, a French court held that a creditor could not take possession of an unpublished musical work, upholding the right of disclosure for the author. By the end of the nineteenth century, French courts had developed the droit moral with authors able to vindicate their rights of disclosure, integrity, and paternity. As the late pioneer in the intersection of art and law John Henry Merryman correctly pointed out, the concept of moral rights is still “comparatively young.” Moral rights are separate and distinct from the economic benefits granted by standard copyright law. The conflation of economic rights and moral rights has led to an unfortunate underdevelopment of these important principles and risks setting American artists behind their counterparts internationally.
III. Moral Rights in the United States Are Underdeveloped
In the United States, the allocation of rights for artists has been overwhelmingly heaped on the owner of copyrights, often at the expense of the artist. This is of course because a copyright is a freely transferable economic right. This imbalance has widened a persistent gap between the United States and continental Europe in the protection of moral rights. Professor Kwall has been a long-standing advocate for increased protections of moral rights in the United States and critiques the current system of American copyright law for “fail[ing] to take into account that human creativity embodies an intrinsic dimension, a process characterized by inspirational motivations” and not just the brute force of economic incentives.
Economic rights give an incentive and reward for creativity, but these are not the only rights artists should be able to access. Other valuable rights flow from the personality of an artist or creator. Moral rights attach directly to the author’s person, making it impossible to separate them from the author. The Dutch artist and writer Hans Abbing offers a number of potential reasons why artists may not earn comfortable middle-class livings, including a winner-takes-all marketplace, the value of nonmonetary rewards, increased capacity to take risks or even overconfidence, and a lack of information about the potential rewards available to artists in the arts.
Not to mention that the mundane costs of materials, space, and training for new artists are increasing. The collective cost of becoming an artist, which includes going to college, MFA degrees, studio space, and the cost of materials, has made the career of the artist nearly unobtainable but for the wealthy. We know of course that art cannot create itself. And those who can afford to make it are becoming a smaller and smaller group. William Deresiewicz spoke to Favianna Rodriguez, an artist and organizer of community groups, who noted:
“We are now in a crisis around the demographics of who’s making culture,” she told me. Four out of five working artists, Rodriguez said, people who earn the majority of their income from art, are white. “Overall, the state of the arts economy is disgustingly unequal. And it’s all the arts: it’s literature, film, it’s sculpture, dance, it’s everything.” The Internet has failed to make much of a difference, she added. You still need training. You still need money to do your work. The “systemic institutions that run culture in this country”—the museums, the art schools, the Hollywood studios—have not gone away. The arts, in short, she said, are getting “extremely less equitable.”
It is a cliché at this point but the art market really is booming, and the vast sums paid for these works of art do not flow to current living artists. Yet, this is a relatively new development. In the 1940s, the art scene in the United States was relatively small and the sums of money paid for art were modest compared to today. In the 1980s, Wall Street money and the Reagan-era tax cuts gave the wealthy, particularly those in the finance industry, excess money to pour into the art market, and this led to the rapid rise of young new artists like Julian Schnabel, David Salle, and Jean-Michel Basquiat all before they were thirty. Then, as Deresiewicz describes it, the art world “climbed aboard the roller coaster of finance capitalism.” Art now is more of an asset, as it should be when massive sums are paid for these major works. But this is only a very small portion of the overall visual art produced, and an even smaller portion of visual artists themselves whose art commands these lofty prices. To be fair, the growth of the art market led to the growth of the field of art law itself.
Critics of moral rights assume that artists have always been taken advantage of. Essayist and critic William Deresiewicz criticizes the group of thinkers and arts cheerleaders (he calls them “techno-bullies”) who assume technology and the internet will innovate and flatten barriers to entry to save the arts. As he argues: “What bothers me the most about these arguments is their sheer, hand-waving laziness. They can’t be bothered to get off the couch—to make comparisons, to look at specifics, to pay attention, to give a damn.” Justin Hughes ably summarizes this way of thinking:
To transpose Robert Nozick’s classic query, why should we think putting our personality out into the world gives us rights to the things we create? Why should we not assume that when we mix our personality with the world, we lose part of our personality instead of gaining part of the world?
Judges also have expressed strong resistance to hearing these cases despite the enactment of laws at both the federal and state level, the United States’ obligations under the Berne Convention, and the long-standing embrace of these rights around the world. Judge Ponsor, prefacing his summary judgment in the Büchel case, expressed extraordinary candor in noting that the dispute “doesn’t belong here. This is a passionate disagreement about aesthetic ideology and the rights of an artist and the process of creation that is extremely ill-suited to the courtroom.” Other courts have even failed to acknowledge that while there has been some resistance to moral rights in the United States, some courts have blindly accepted arguments which erase the long presence of these rights in various cases. In one of the first cases to consider the moral rights of artists, Crimi v. Rutgers Presbyterian Church, the artist Crimi was commissioned to create a fresco mural for a church. Years later, the church’s congregation viewed it unfavorably and the fresco was covered. Crimi brought an action to force the congregation to have the fresco either restored or removed on the theory that his moral rights were violated. But the New York court denied the request for remedy and explicitly rejected the existence of moral rights of artists under New York or other laws in the United States.
In criticizing moral rights as outdated, Professor Amy Adler argued that moral rights “endanger art in the name of protecting it.” She supports her case by asserting that:
[M]oral rights are premised on the precise conception of “art” that artists have been rebelling against for the last forty years. Moral rights law . . . purports to protect art, but does so by enshrining a vision of art that is directly at odds with contemporary artistic practice. It protects and reifies a notion of art that is dead.
Yet, her notion of art hearkens back to the lone genius of Vasari’s Renaissance master, not the day-to-day working life of artists today. Professor Adler argues in particular that it is the right of integrity, which fails to allow the modification or destruction of works, that holds back artists. As an example of this, she uses as precedent Robert Rauschenberg’s 1953 exhibition at the Stable Gallery in New York. At that exhibition, Rauschenberg displayed a faint, white drawing with residue of ink and crayon on a label which read “Erased de Kooning Drawing/Robert Rauschenberg/1953.” Rauschenberg was interacting with the overwhelming dominance Abstract Expressionism enjoyed in the late 1940s and early 1950s. He approached Willem de Kooning, who was arguably the most prominent artist in New York at the time, at his home one evening, reportedly with a bottle of Jack Daniel’s bourbon, to ask if he could erase one of his works—de Kooning agreed and carefully chose a drawing which would be very difficult to erase. Rather than an act of destruction, as has often been misinterpreted, the work itself was an act of collaboration between de Kooning and Rauschenberg for generations, complete with assistance for the title card, which was created by Jasper Johns (who lived upstairs from Rauschenberg). As the late Rauschenberg stated, the act of erasing the work would only have meaning if it were from a great artist he admired. This was not and could not be a violation of de Kooning’s personal rights, as he assented to the idea and was engaged in pulling it off. It was as Rauschenberg described “not a negation, it’s a celebration. It’s just the idea.” Using this collaborative artistic act as precedent for overturning the long tradition of artists rights fails to stand up to rigorous art historical scrutiny.
After all, artists have different practices, different goals, and different financial realities. Some artists may certainly decide to abandon their personal rights of attribution and integrity. But nothing in law or practice forces them to. The criticism of moral rights seems to assume all artists are financially independent, solitary figures. Some may be, but not all are. These rights should assist those artists most dependent on commission. Their relative bargaining power is weak, and they are in most need of assistance recognizing their natural rights of integrity and attribution.
The concept of moral rights or “rights of personality” is that they are “personal, perpetual, inalienable and unassignable.” Moral rights protect an author’s personality rights and the integrity of the work itself. The civilian view of moral rights sees them as distinct from economic or property rights. There is of course an argument which carries some initial allure: that if artists pursue their noneconomic rights, like a right of integrity or attribution, they will alienate their market and risk losing a market for their work. But this has already happened for all but the most successful artists and galleries.
Arts policy should recognize the rights of artists in a more concrete, direct way. They are personal rights, not economic or property rights. The perpetual failure to frame them and apply them properly has led to their underapplication and bad precedents. To start, linking these rights to the personality of artists and authors makes for good policy. Professor Kwall has written extensively on the rights of artists and the need to promote a holistic view of creativity. Edward Bloustein has also pointed out how dignity is a cornerstone for authors’ rights, thoughts, and even artists and literary creations: “[T]he individual’s independence, dignity and integrity; it defines man’s essence as a unique and self-determining being. . . . He would be less of a man, less of a master over his own destiny, were he without this right.” Further, Justin Hughes has argued that these connections to an artist’s personhood justify continuing rights in creation, “from simply being the human source of an intellectual property res.” Finally, as Professor Jane Ginsburg correctly summarizes, “moral rights afford protection for the author’s personal, non-economic interests in receiving attribution for her work, and in preserving the work in the form in which it was created, even after its sale or licensing.”
And this approach is faithful to the text of the Berne Convention, VARA itself and its legislative history, and the roots of the moral rights doctrine. The text of the Berne Convention in Article 6bis distinguishes economic rights from other moral rights of authors or artists: “Independently of the author’s economic 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 . . . .” The Convention then connects this right to the artist or author, noting that these rights must cause prejudice to the “honor or reputation” of the artist or author. The House Report accompanying the enactment of VARA even noted the “personal nature of the rights” granted in the statute implementing the commitments of the United States to the Berne Convention. Courts have recognized this reality as well. The Second Circuit has twice emphasized that the rights granted by VARA are “personal” and “non-economic.”
IV. Moral Rights Recognized Under the Visual Artists Rights Act
VARA offers artists many rights in addition to the rights afforded under § 106 of the Copyright Act. Copyright law protects “original works of authorship fixed in any tangible medium of expression.” VARA protects specific rights in authors’ works of visual art. In order to be considered a work of visual art, the work must be one of the enumerated forms given in § 101, but it is important to note that this list does not contain many forms of copyrightable material. The creators of works of visual art receive two rights under VARA: the right of attribution and the right of integrity. “Visual art” is defined in “positive” and “negative” terms.
A. VARA Grants Limited Rights of Attribution
Congress granted the right of attribution to qualifying artists under § 106A(a)(1), which allows an author to both be identified with their works and to prevent the use of the author’s name when improperly identified as the author of a work.
This right is sometimes referred to as the right of paternity, making it a direct translation of the French phrase “droit de paternité.” It is the right of an author to be associated and identified with his work and to claim authorship of a work. This right includes the right to be identified as the author, the right to object to false attribution, and the right not to be mentioned as an author. Under VARA, artists have two such rights. First, artists have the right to prevent their name being used as an “author” of any work that the artist did not produce. Second, artists have a limited right to prevent the use of their name as the author of any work that has been distorted, mutilated, or otherwise modified “which would be prejudicial to his or her honor or reputation.” This second right is a narrow grant of what has generally been called divulgation, or the right to decide when a work is finished. The Supreme Court has noted that these rights of integrity are “carefully limited and focused.” This curtailment of the right of attribution signifies the failure of American moral rights law and policy to recognize the important role the person plays in moral rights. The right of attribution is deeply personal; Professor Kwall lays this out in describing a “fundamental truth about human nature—people typically desire recognition for their accomplishments.” The right then connects deeply with the artist yet it also triggers an important public interest in ensuring that artists are not subject to damage to their reputation, and that the body of work of an artist endures without being subject to the scourge of fake and counterfeit art.
Time and time again, however, Congress’s grant of integrity under VARA has been narrowed so far as to be nearly unrecognizable. Such was the case in a dispute involving the artist Cady Noland. In 1990, the German art collector Wilhelm Schürmann acquired a wooden sculpture from Noland. Between 1995 and 2005, the sculpture was displayed outside on the bare earth. As a result, some of the sculpture’s material deteriorated. Schürmann hired, among others, a conservator who advised him to replace the sculpture’s rotten wood. In following that advice, he ordered replacement logs from the same manufacturer that fabricated the sculpture’s original logs. There were only subtle differences in the replacement logs from the originals—primarily, natural variation. Schürmann hired an agent to help resell the sculpture. The agent, in turn, reached out to Marisa Newman Projects, LLC to help market and find a buyer for the sculpture in the United States. Marisa Newman Projects, LLC sent photographs and plans for the sculpture before and after refurbishment to Brett Shaheen, an Ohio-based art dealer. Shaheen used Noland’s name in marketing the sculpture to potential buyers. Eventually Shaheen found a buyer, but the sale fell through when Noland claimed that this attempt to sell the refurbished sculpture both infringed her copyright and violated her moral rights under VARA.
Despite the changes to her original work, Noland was denied vindication of her moral right of attribution. District Judge Oetken relied on the plaintiff’s theory that a derivative work was created when some of the wood pieces were replaced and stained. The court reasoned that the work in question was not the original work by Noland but was instead a derivative form. Looking at the facts presented, it was not Noland but Schürmann who would, under the view of the court, receive the VARA rights. Noland, the court reasoned, only approved of Schürmann’s idea of staining the sculpture when he requested it. Noland’s grant of approval is ineffective in changing the result as “a copyright holder’s licensing of a derivative work by a secondary author is a routine feature of copyright law.” The result in this case seems nonsensical. Under this view, every conservator of a work of art repairing damage would become a copyright holder and entitled to VARA rights. Would the conservators of the Sistine Chapel have moral rights under the theory advanced by Judge Oetken?
B. VARA Protects an Artist’s Integrity Against Intentional Acts
Under VARA, the right of integrity can be triggered with respect to “intentional and negligent acts” committed against works. This right includes the right to prevent any intentional distortion or modification of a work that might “be prejudicial” to an artist’s “honor or reputation.” The right of integrity also allows heightened protection to prevent any destruction, either intentional or grossly negligent, of works that have achieved recognized stature. Congress wanted to prevent acts which would damage an artist’s honor or reputation, ideas which are deeply personal to the artist.
Such was the case with artist Christian Narkiewicz-Laine when he “stored his artwork and other belongings in a space in Galena, Illinois that he rented” in 2004 from the Doyle family. Six years into his lease, the defendant Doyle family emptied the space and discarded the majority of Narkiewicz-Laine’s property, resulting in the destruction of art. At trial, Narkiewicz-Laine provided an inventory that he had made after the defendants discarded his property through various records and by contacting institutions and friends in order to obtain photographs of his works. In addition to 1,457 pieces made by him, the list included a few pieces of artwork created by others that Narkiewicz-Laine had stored, as well as other pieces of personal property. The defendants claimed that the space held nothing of real value; however, Narkiewicz-Laine brought an action under VARA as well as trespass, conversion, and negligence claims.
A jury awarded Narkiewicz-Laine $120,000 for four works of art which qualified for protection under VARA and an additional $300,000 as to the common law property loss claims. The claims for common law remedies were drafted with regard to all of the property and paintings within the storage space. The district court later reduced the damages to $300,000 under the theory that the VARA damages amounted to the plaintiff receiving double recovery. District Court Judge Kapala also denied Narkiewicz-Laine’s attorneys’ fees for his VARA claims because he had only prevailed under four VARA claims out of 1,457 claims. After the district court’s post-trial rulings lowered the priority of the VARA claims, and as a result Narkiewicz-Laine appealed and sought a new trial under his VARA claims. On appeal, the Seventh Circuit made clear that VARA provides artists the rights of both attribution and integrity—and the right of integrity includes the right to prevent the destruction of works of art which qualify. Unfortunately, the Seventh Circuit mischaracterized the VARA rights of the artist and erased the VARA claims entirely.
The Seventh Circuit held that under Illinois law, injured parties may only recover one full compensation from their injuries but no more. This reasoning rests on the uneasy assumption that VARA claims vindicate property rights artists have in their works. Yet such a property right would have existed before the enactment of VARA. Had Congress merely meant to provide a federal clarification of the common law remedies of artists it surely would have said so. Yet, nothing in the legislative history or purpose of VARA leads to this impression. Though the Seventh Circuit was right that damages are offset to avoid double recovery; in this case, there were two violations of the artist’s rights: a property rights violation, of course, but also a personal right of integrity was violated. The Seventh Circuit, however, curtailed the personal right of integrity, which, if followed by future courts, would impose on future plaintiffs the obligation to elect to recover through actual damages or statutory damages but not both. The Seventh Circuit reasoned that this result was required by the Copyright Act; yet, the right discussed in the statute is the violation of copyright only, not the personal right of integrity. Other courts have in fact noted the differences between copyright and personal rights, such as a right of publicity. The Seventh Circuit reasoned that dissociating statutory damages from actual damages under VARA separates the artists pecuniary interests from the philosophical values imparted by the artists’ relationship with their work rather than utilitarian or economic value. Under the Seventh Circuit’s view, Narkiewicz-Laine elected statutory damages as to his VARA claims and sought actual damages as to his common law claims.
A view of moral rights, which are personal rights, would have avoided the difficulty for the artist in this case. Two different injuries were redressed by the jury: the common law property rights and the vindication of his moral rights by VARA. The right of integrity is not just an economic right, it is a right that helps an artist craft the continuing integrity of the works he or she has created. The VARA damages do not double an artist’s recovery because the statutory damages address infringements on his moral rights and, separately, the actual damages compensate for violations to his property rights. The codification of an artist’s moral right of integrity is the reason for enactment of VARA. Failure to compensate a plaintiff for violation of these rights, when there are other property rights violations, would effectively erase the need for VARA.
C. Artwork of Recognized Stature Receives Heightened Protection Under VARA
Artworks that have achieved recognized stature allow an artist under VARA “to prevent any destruction.” This test, though, does not require any special expert testimony or art knowledge on the part of judges. And these rights apply to all artists who create works that reach recognized stature. As a relatively new art form, street art has recently gained an important precedent in the Second Circuit, which offers guidance for the protection of the rights of street artists under VARA, holding that a property developer violated the rights of artists by whitewashing their works of art without offering them a chance to preserve their works. In what has become the largest VARA award and victory for artists to date, Castillo v. G&M Realty has attracted considerable attention. The dispute began with an agreement in 2002, in which developer Gerald Wolkoff enlisted the help of distinguished aerosol artist Jonathan Cohen to install artwork on his warehouses in order to turn a vacant building into a massive exhibition space. With Cohen serving as curator, the location developed into “a major global center for aerosol art” known as 5Pointz, “attract[ing] thousands of daily visitors,” celebrities, and media attention. Some of the artwork at 5Pointz was permanent but others were painted over when governing norms set by Cohen permitted. Cohen delineated which walls held what level of artwork and how long the artwork would remain.
In May 2013, Cohen learned Wolkoff had sought approval to demolish 5Pointz in favor of a new construction. Cohen sought a New York City Landmark Preservation Commission designation for 5Pointz and attempted to raise money to purchase the location; but those efforts were unsuccessful. As a result, Cohen and several other 5Pointz artists sued under VARA to prevent the art’s destruction, or at least to allow the works to be preserved in some way. The plaintiffs received a temporary restraining order from the district court and applied for a preliminary injunction upon the order’s expiration. On November 12, 2013, the court denied the preliminary injunction application but informed the parties to expect a written opinion soon. Wolkoff set out to destroy the artwork that night, banning the artists from the site and refusing permission to recover what they could. A few nights later, a group of men hired by Wolkoff whitewashed the art. This effective destruction and elimination of the art was roundly criticized by artists and tourists. It was not until November 20, 2013, that the anticipated district court’s opinion denied the preliminary injunction, concluding that, although 5Pointz paintings may have achieved the recognized stature mentioned in VARA, the issues, including relief, were better suited for trial.
Following Wolkoff’s acts of destruction in November, more artists brought suit against him. After waiving a trial by jury, the advisory jury made individual findings as to each artist and work, identifying VARA violations committed against thirty-six of the forty-nine whitewashed works. The advisory jury found that twenty-eight of the works achieved recognized stature and were unlawfully destroyed, and that eight others were mutilated and distorted to the detriment of the artist’s reputation. The advisory jury recommended $545,750 in actual damages and $651,750 in statutory damages.
Later, the district court affirmed the advisory jury’s findings and went further by finding: first, that forty-five of the forty-nine works had achieved recognized stature; second, Wolkoff violated VARA by destroying them; and finally, Wolkoff acted willfully in doing so. The findings underlined the quality of 5Pointz’s curation under Cohen, the significance in his selection of artists to exhibit at 5Pointz, and that not all of 5Pointz’s artworks were temporary or transitory in nature. At trial, the parties’ experts disagreed on the quality of the works. The plaintiffs’ expert used a scale based on the merit and recognition of the works, and Wolkoff’s expert relied on the difficulty of removing and selling the art as well as the limited sales history of the artists. The court declined to award actual damages because it was not able to reliably fix a value, though it did apply statutory damages to act as sanctions against Wolkoff’s conduct and vindicate the policies underlying VARA. The district court also found that Wolkoff acted willfully because he chose to act, despite his awareness of the ongoing VARA litigation, and because he refused to grant the ninety-day opportunity to salvage their art as afforded to artists by the statute. The court set statutory damages at the maximum amount allowed: $150,000 for each of the forty-five works of art, totaling $6.75 million.
The primary question appealed by Wolkoff to the Second Circuit was whether the aerosol art at 5Pointz was work of “recognized stature” and therefore protected by VARA when some of the art was temporary and when the artists offer substantial exhibits and testimony on a wide variety of matters indicative of artistic merit, quality, and status. The court applied the well-settled rule that under VARA, artwork has achieved recognized stature when it is considered to have (1) high quality, status, or caliber; and (2) those qualities are acknowledged by the relevant community. The court identified the artistic quality as generally being the most important component in determining stature. Quality is to be judged by the relevant community, which is usually the artistic community (i.e., art historians, critics, museum curators, gallerists, prominent artists, and other experts). However, “recognized stature” is described as a fluid concept in which, sometimes, work of poor quality by a prominent artist may be considered “recognized” and properly claim protection from destruction under VARA. This ensures both (1) the preservation of the nation’s culture; and (2) that the court’s personal judgment on the artwork’s merit does not influence its judicial analysis. The use of “expert testimony or substantial evidence of non-expert recognition will generally be required to establish recognized stature.” The exception to this being the rare case where the artist or artwork is of such renown that there is no factual question as to the recognized stature of the work.
The artists needed to show that their art achieved recognized stature, which they were able to do by citing an impressive number of exhibits and credible testimony. Stature being an issue of fact, the appellate court was unwilling to overturn a decision where there was no clear error. Wolkoff took issue with certain district court decisions; however, his hurdle was not whether the matter was debatable but rather whether there was an abuse of discretion or that the findings of fact were clearly erroneous. Wolkoff pointed to the fact that the majority of the works were temporary and argued that temporary works could not meet recognized stature. Nothing in VARA, though, excludes temporary artwork from recognized stature, and even Wolkoff’s expert acknowledged that temporary artwork can attain such a status. The court noted street art as a category of contemporary art, as well as recognized other temporary works such as those by Christo—The Gates—and Banksy—Girl with a Balloon—as definitely carrying recognizable stature. Furthermore, the court noted that VARA defines art only by what is and is not recognized as art under its provisions. Congress narrowed this to define what is visual art, but there are no delineations between that which is temporary or permanent. Congress could have set its own duration limits if it had intended to do so. Issues of time discussed in VARA include the effects of aging, wear, and tear on artwork, and durational limits on whether a work is “fixed.” The statute does not place any other limitations on art that is temporary, and the court refused to apply further restraints on VARA than those provided by Congress.
Wolkoff also argued that the district court erred because it focused on recognized quality rather than stature, which he claimed must be assessed at the time of the work’s destruction not the time of trial. The Second Circuit was unmoved, pointing out that the district court’s findings were dispositive on the issue, and it even explicitly stated its focus was on the artwork’s level of recognition prior to whitewashing. Wolkoff also argued that because one of the plaintiffs’ experts had not actually seen certain works at 5Pointz before their destruction, her testimony was improperly credited. The court disagreed, stating that an expert can assess quality of work after it has been destroyed in order to make a judgment on that work’s pre-destruction quality, status, or caliber. The plaintiffs’ expert used images made before the work’s destruction to judge its merit.
Wolkoff also argued that the district court erred in focusing on the stature of the site itself and not on the individual artworks within it. The district court did focus on the artworks, as evidenced by the fact that the court did not find that all of the forty-nine artworks at 5Pointz achieved the recognized stature required by VARA. Beyond this, the court contended that an artwork’s inclusion within a museum or gallery that carries its own reputation is indication that the artwork itself has merit in the eyes of the curator, evidencing stature. As the court made clear: “When the curator is distinguished, his selection of the work is especially probative.” The use of a piece of art’s location in evaluating whether recognizable stature is obtained is therefore not erroneous. Wolkoff argued that the artists knew that the 5Pointz building might eventually be torn down and therefore should have expected the artwork to be destroyed (an assumption of risk defense). VARA, however, contemplated these situations, setting requirements for instances in which art is incorporated into a building that can or cannot be removed safely. Wolkoff failed to follow the requirements for either.
The court found that the artworks achieved recognized stature because of (and through the use of) exhibit testimony of lay witnesses and art critics, the nature of the location, the manner in which Cohen, himself a distinguished artist, curated the site, etc. The temporary nature of the artwork was not a bar on its potential to reach recognized stature. Wolkoff also contested the admission of Cohen’s testimony in his capacity as facilitator and curator of the art. The court reasoned that Cohen’s selection process, relying on reviewing artist portfolios and the artist’s plans for their 5Pointz projects, effectively screening the works allowed in 5Pointz, demonstrated evidence of the artworks’ stature given Cohen’s own status within the relevant art community. Recognition of an artist’s skill or merit by other prominent artists is a relevant consideration in identifying recognized stature. The Second Circuit held that accepting and crediting evidence of this kind was not an abuse of discretion or illustrative of clear error. In so doing, the Second Circuit set an important precedent for the role of artists and VARA plaintiffs in advocating on their own behalf.
D. Contemporary or Boundary-Challenging Art Does Not
Chapman Kelley is an artist of renown known for his use of landscaping elements and particularly for arranging these into geometric ellipses. In June of 1984, the Chicago Park District (the District) granted Kelley permission to install a large, permanent wildflower display in a prominent space within downtown Chicago located above an underground parking garage. In 2008, Kelley sought to prevent the District’s changes to his live wildflower display as wrongful under VARA. The District argued that Kelley’s work could not be protected under VARA because it was subject to change. District Court Judge Coar disagreed, writing that the “[d]efendant’s insistence that an artifact that changes over time, requires ongoing maintenance, or contains living matter cannot be considered a work of visual art protected by VARA is misplaced.” Judge Coar used art to support his claim, citing Félix González-Torres’s Untitled (Portrait of Ross in L.A.), which was a work remembering the loss of the artist’s partner, Ross Laycock. The portrait was a pile of individually wrapped candies, and the combined weight of the candies equaled his partner’s weight. Viewers of the work were invited to take a candy so that as the pile diminished, the weight diminished, just as Laycock lost weight and eventually was taken by illness. Though Judge Coar “eventually decided that Kelley’s flower [installation] did not qualify for copyright protection” and thus VARA protection, Joan Kee notes “his reasoning illustrated how the framework within which legal judgments are made has been affected by direct encounters with artworks and by shifting approaches to artistic creation.”
Kelley began work soon after the agreement, installing two large oval flower beds, lined with gravel and steel, across 1.5 acres, wherein between forty-eight and sixty varieties of self-sustaining native wildflowers were arranged. Kelley’s initial design allowed for the wildflowers to blossom sequentially so that the colors changed throughout the year, but the brightness and intensity of the flowers’ colors always increased toward the center of the flower beds. By the following year, the now-matured plantings blossomed into widespread acclaim for Kelley’s work. The District marketed the work as “living landscape art.” Under the agreement, Kelley was to both install and maintain the display, and the District reserved the right to terminate the permit with a ninety-day notice for Kelley to take the wildflowers from the location.
Kelley and some volunteers tended Wildflower Works by pruning, planting, and weeding it to improve upon and update the composition for several years, but eventually the display deteriorated. Certain plants flourished and encroached others while other varieties died; wildlife also spread seeds or damaged the overall composition. After four years, the District sent Kelley the ninety-day termination notice for Wildflower Works.
Kelley sued the District, leading to a settlement granting Kelley a one-year permit extension starting on September 14, 1988. This temporary permit allowed Kelley to work on the two established ellipses until September 1, 1989. Until then, it was Kelley’s responsibility to control the aesthetic design and contents of the work at no cost to the District, including costs for maintenance and care. The settlement did not contain a notice-of-termination provision but it did grant Kelley the ability to remove the plants if the temporary permit was not renewed by the District. The temporary permit was extended each year until 1994, whereafter Kelley and the volunteers cared for the location without a permit but also without pushback by the District. In 2004, three months after the District’s commissioner indicated that no new permit was required for Wildflower Works, the District met with Kelley regarding the insufficient maintenance of Wildflower Works and the improvements the District planned to implement in the area. These changes required reconfiguring and reducing the size of Wildflower Works to nearly half of its original acreage. Doing so would clip the ends of the ellipses into rectangles; as a result, the District sought Kelley’s thoughts. Though it was made clear that Kelley’s disagreement would not stop the project from going forward, he objected nonetheless; yet Kelley did not request to remove the plants he invested into the project.
A week later, the District modified the space, dramatically changing and reducing Wildflower Works. Additionally, the District changed certain flower varieties and altered oval flower beds to rectangular ones. In response, Kelley brought a VARA claim arguing his protected right of integrity had been violated. In particular, Kelley claimed that Wildflower Works was a sculpture and painting and that the reconfiguration was an intentional distortion that prejudiced his honor and reputation. For the VARA claim, Kelley requested “compensation for the moral-rights violation, statutory damages, and attorney’s fees” amounting to $25 million. He also brought a breach of contract claim.
The district court found in favor of Kelley during its initial analysis of his VARA claim, classifying Wildflower Works as Kelley described it—both a painting and a sculpture and therefore qualifying as visual art. However, the court ultimately found that Wildflower Works lacked originality under the definition provided by the Copyright Act, a status upon which moral rights protection through VARA depends. In the alternative, the district court found that Wildflower Works was a site-specific work, which does not receive VARA protections.
The heart of Kelley’s appeal examined if an artist’s right of integrity is infringed when the landowner reconfigures and partially alters the composition of an art-garden designed by an artist, all while the garden is subject to natural processes acting upon it. The Seventh Circuit noted that VARA grants artists certain rights of attribution and integrity for works that fall within the definition of visual art. These rights originate and remain with the author separate from the property or its title. They are personal rights. Though moral rights are nontransferable, the author can choose to waive them in a signed writing that specifically identifies the work and the use that the artist is waiving their rights to. The personal right of integrity includes the right to prevent distortion, destruction, or modification of the artist’s work during the artist’s lifetime if that modification prejudices the honor or reputation of the artist.
To assess whether VARA is violated, the work in question must first be deemed to be a copyrightable work and then to be a work of visual art. Under § 101, to be visual art the work may be:
[A] painting, drawing, print, or sculpture, existing in a single copy, in a limited edition 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.
The court noted the several specific types of works expressly included in the definition of visual art under the Copyright Act. In particular, the visual art forms identified fell within the pictorial or sculptural categories under the Copyright Act and were listed as a means of limiting what forms are considered visual art.
Kelley argued that his installation should be considered both a sculpture and a painting “rendered in living material.” The Seventh Circuit, however, in a sweeping judicial pronouncement, determined that a work cannot be both a sculpture and a painting because these two forms cross the boundaries of the broader Copyright Act categories of sculptural and pictorial works. Referring to a work as a painting is in essence stating that it is a painting but not any other kind of pictorial work. Here the law’s inherent attempt to quantify and order art brushes up against conceptual art’s broader attempts to break free of expectations and create something novel. The form painting must necessarily be smaller than the category of things understood to fall under the umbrella of pictorial. The argument that it is both a painting (pictorial) and sculpture (sculptural) would, in the Seventh Circuit’s view, thwart the statute’s purpose of defining which forms under the umbrella “pictorial” and “sculptural” categories are considered works of visual art.
While the parties argued this at trial, the District did not challenge it in its appeal. So, while the circuit court appeared to disagree with the district court’s finding, it was forced to leave the issue of how to interpret this statutory language for a later discussion, relegating its own discussion dicta.
As VARA falls under the 1976 Copyright Act, only works that also satisfy the basic copyright requirements are protected by VARA. That is, the work needs to be an “original work of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.” Originality is the low but necessary threshold across which all material must pass in order to be considered copyrightable. To do so, the work must be created independently and carry a “minimal degree” of creative expression. The district court found that Wildflower Works lacked sufficient originality to meet the requirements under the Copyright Act, despite holding that Wildflower Works was both a painting and a sculpture. The district court based this finding on the fact that Kelley was not the first person to use ellipses shapes as an arrangement for wildflower beds. However, originality is not the same thing as novelty “so long as the similarity [in expression] is . . . not the result of copying.” Neither party argued that Wildflower Works was the result of copying or a lack of creative expression. Instead, the circuit court found that Wildflower Works was not a method or system but a self-sustaining project. But Kelley was not seeking to protect the self-sustaining process Wildflower Works utilized, he was seeking to protect the garden itself. And while Kelley used simple geometric ellipses to form the garden, his arrangement and combination of the simple forms was enough to satisfy the low bar of originality.
The circuit court took further issue with the district court’s findings, stating that as VARA exists within copyright law, the work must first meet the vaguer requirements of the Copyright Act to be considered a painting or sculpture. That is, it must first qualify as a copyrightable work before being allowed the extra protection granted under VARA. The Seventh Circuit focused on authorship and fixation as explicit and necessary requirements to be considered copyrightable works. Fixation requires that the expression be rendered in a tangible medium in a sufficiently permanent or stable manner so that it might be perceived, reproduced, or communicated for more than a transitory period. The authorship element requires that the work be by and through the direction of a human being, not the forces of nature.
The Seventh Circuit held that Wildflower Works failed to meet the fixation standard because plants are living things and are, though undoubtedly tangible, by their very nature forever changing and forever subject to natural variation in color, size, and texture. Permitting gardens to satisfy the fixation element raises the necessary question as to when fixation occurs—when the garden is freshly planted, the flowers are in full bloom, etc. Further, the expression of these variations did not, according to the Seventh Circuit, originate in Kelley as the gardener but by the processes of nature constantly acting upon the plants. Kelley arranged the initial plantings, but nature determined their ultimate appearance. Instead, the Seventh Circuit held landscape designer works may be copyrighted when they are recorded in text, diagrams, and drawings, as these methods of expression are sufficiently stable and not in a state of perpetual change. Time acts on the garden causing change, and VARA expressly recognizes the fleeting nature of tangible works and offers that modifications that occur due to the passage of time or nature of the materials used are not to be considered distortions, mutilations, or modifications. Instead, the Seventh Circuit said the issue here was the fact that the essence of the garden is that it is composed of living things that are subject to dynamic change.
Copyrightable material can attach to works that are not wholly static, such as Jaume Plensa’s Crown Fountain, but these are contemplated by the Copyright Act as something other than pictorial or sculptural works which are fixed through broadcasting. Wildflower Works did not meet the elements of these categories in the Seventh Circuit’s view. Nor did Wildflower Works exhibit the structural features of the art examples the Seventh Circuit analyzed: Alexander Calder’s mobiles or Jeff Koons’s Puppy, which used metal frames to support the plant material that gave the art its ultimate shape. Wildflower Works lacked this structure, according to the court, because it consisted only of a garden and lacked both the authorship and fixation elements necessary for a copyright.
The circuit court affirmed the district court’s judgment on the VARA claim. The circuit court arrived to this conclusion because, while it disagreed with the district court that Wildflower Works lacked the necessary originality for copyright status, the circuit court found that gardens, by their nature and composition, are not fixed nor authored under the definitions given by the Constitution. Megan Noh, an arts attorney, has argued that moral rights should not require copyrightability and that instead, VARA protection should flow from the “regard” given to the work in the “relevant community.” Such a right would better connect the artist’s personality to the rights given under VARA.
V. Other Allied Personal Rights of Artists
There are other broad rights of artists recognized internationally that have also been recognized in the United States despite not being clearly enumerated in VARA. These rights have sometimes been found under existing common law remedies or have been forced into the expansive reading of Congress’s grant of rights of attribution and integrity under VARA. In fact, existing laws in the United States were on the mind of members of Congress as they considered implementing legislation that ultimately became VARA. A reason for this may be a kind of evolutionary biology of rights: the same kinds of disputes will invariably arise and require judicial intervention and the predictability of a set of workable principles and exceptions. In the United States, which has been slow to anticipate these problems, courts and parties are left in an uncomfortable position. Existing common law and other doctrines have been scraped together to protect an artist’s moral rights. But this creative use of adjacent doctrine has not proved an effective moral rights protection scheme.
A. Divulgation by Another Name
Artists have also been held to have the right of divulgation, or the right to decide when a work is finished and when to divulge it to the world. Such was the ultimate result in a dispute between the Massachusetts Museum of Contemporary Art (MASS MoCA) and the artist Christoph Büchel. Büchel is a Swiss artist known for his elaborate, political environments designed to allow viewers to walk through and experience his works. MASS MoCA opened in 1999 with a mission to exhibit visual and performing work at all stages of development, focusing in particular on its Building 5, which is the length of a football field and allows the museum to grant artists the time and space to create works of art which are impossible in other venues.
The Museum and Büchel began discussing displaying Büchel’s work in October of 2005. By August of 2006, the parties agreed to display a new, enormous project which Büchel called Training Ground for Democracy (Training Ground) in Building 5, recognizing that both the size and time investment in such a project would be greater than any other that Büchel had yet taken on. Like other works Büchel is known for, the concept was to put the viewer in a participatory position by allowing them to tour the work as a means for them to “experience” the artist’s political message. That month, Büchel resided in the Museum for ten days, preparing schematic models for Training Ground.
The Museum agreed to purchase and pay for the materials for Training Ground at Büchel’s direction, but the parties did not reduce their entire agreement or even the financial boundaries of the project into writing, leaving the terms of their relationship undefined. Nato Thompson, the Museum’s curator, however, did send Büchel’s gallery sales representative a letter on September 14, 2006, “designed to formalize the parties’ relationship.” It was not apparent by the facts whether Büchel signed it. In response, Büchel’s gallery proposed that the Museum “bear the costs of transporting and organizing” the elements of the installation. The Museum did not respond. Büchel did not sign a waiver of his VARA rights at any point during this process. Of the oral agreements made, it was certain that Büchel would have exclusive title to the copyright for the completed work which they planned on opening to the public on December 16, 2006.
However, due to increasing tension between Büchel and the Museum—particularly Joseph Thompson, the Museum’s director—Training Ground was never completed as Büchel originally intended. The Museum found Büchel’s directions vague and demands unreasonable; Büchel found the Museum’s efforts to follow his directions a failure, compromising the entire project. At the heart of these issues was the increasing budget required for Training Ground.
The central dispute flowed from Büchel’s dissatisfaction with the Museum’s implementation of his vision both in terms of following his directions and procuring necessary items. For the majority of the fall of 2006, Büchel gave directions remotely, sending instructions regarding the materials and placement of elements. During the construction phase, Büchel proposed several major components such as a house, bomb carousel, and aircraft fuselage, among other things, some of which were kept where others were scrapped as Büchel’s creation developed and evolved. On October 28, 2006, Joseph Thompson wrote an internal e-mail stating that he tried to “move the project along” by making artistic decisions for Büchel, though he recognized that Büchel had a particular vision for the work and was offended by Thompson’s actions. The next day, on October 29, 2006, Büchel returned to the Museum to find that the changes made by Joseph Thompson’s directions or by the Museum employee’s failure to follow his instructions threatened the scheduled opening. In an e-mail, Büchel informed Joseph Thompson that he forbade the Museum to display the unfinished work under his name, citing Joseph Thompson as the reason for it likely being unfinished by that time.
In early December 2006, when it was clear Training Ground would not be finished in time for the scheduled opening, Büchel insisted the Museum postpone the opening. The Museum agreed. Büchel continued working at the Museum until December 17, 2006, leaving Training Ground about 40% complete, a status which he made clear was the fault of the Museum’s lack of organization, lack of discipline in following his instructions, and attempts to undermine his vision. He planned on returning in early January in order to complete the project for a March 3rd opening. When the Museum, prompted by the dwindling project budget, reached out to Büchel’s galleries to request funding in late December, Büchel refused to move forward with the project until the Museum sorted out its financial problems. By the middle of January, Büchel refused to return to the Museum, but the Museum’s staff continued to work on the project.
As the spring of 2007 progressed, it became clear Büchel would not return to the Museum, and the Museum posted a cancellation notice on its website along with a press release for a new exhibit called Made at MASS MoCA. This new exhibit was billed as an exploration of issues raised in complex collaborative projects between art museums and artists. The press release mentioned Büchel’s filing of a lawsuit and that the space constraints required the new exhibition to be located where the Museum had room, that is, it would pass through Building 5 where the unfinished Training Ground remained. The press release also mentioned that the Museum took reasonable steps to restrict the view of Büchel’s work. This, it turned out, was through the Museum’s placing yellow tarpaulins over the unfinished work.
Büchel brought several VARA claims, including injunctive relief, to stop the Museum from allowing the public to view his unfinished work, and damages for violating Büchel’s VARA rights in intentionally distorting his art. He also sought relief under public display and derivative art claims. The district court ruled for the Museum, unable to find that VARA protects unfinished works and therefore the Museum was entitled to present it so long as it posted a disclaimer that the work was actually unfinished. While the district court wrote its memorandum, the Museum rethought its position on displaying the partial work and posted a notice that it was taking down Training Ground so visitors were no longer permitted to see it. Büchel appealed the district court’s denial of summary judgment and declaratory relief.
Here, Büchel’s work was not complete but had taken some form. Büchel felt the work was 40% complete before the end of 2006, several months before filing the claim below. Under the circuit court’s reading of the fixation requirements, it stands that Büchel’s work was fixed.
Under an artist’s right of integrity, the artist can “prevent any intentional distortion, mutilation, or other modification of [his] work” which prejudices his “honor or reputation” and any intentional distortions, mutilations, or modifications that violate the artist’s rights. The circuit court followed Nimmer’s reading of § 106A(a)(3)(A): that all three forms of modification given in the statute—distortion, mutilation, and other modifications—must be of a type that show prejudice against the artist’s reputation in order to claim damages or for an injunction. By December 2006, Training Ground was “fixed” under the definition of the Copyright Act: its materials placed by Büchel, his team, or the Museum’s workers, under the authority of the author, Büchel, in a sufficiently stable manner allowing for the necessary communication beyond a transitory period. By the close of that year, sections of Training Ground were taking form, including one section called the “Saddam Compound” and another section with a cinema. As an ongoing work, Büchel enjoyed the right of integrity to each progressive fixed phase of Training Ground, even in its unfinished state.
Though a precise right of divulgation is not granted in VARA, Büchel had to cobble together three violations under the statute. First, the Museum’s continuation of work without his authorization before exhibiting the unfinished and distorted piece. Second, partially covering Training Ground in yellow tarpaulins which Büchel claims distorted and modified the work. Lastly, simply giving visitors access to see the unfinished work, which Büchel found to be a distortion of his art. The three-judge panel concluded that summary judgment was improper only for Büchel’s first claim.
The district court characterized the Museum’s work following Büchel’s departure in December 2006 as only being “occasionally misguided” attempts to follow Büchel’s instructions, but Büchel argued that the progress was directly contradictory to his directions. The record included evidence that suggested that the Museum’s staff disregarded Büchel’s instructions and instead chose to modify the work despite his disapproval. In Büchel’s 2007 demand letter, Büchel stated that he would not negotiate on his art. Büchel wrote again later, informing the Museum that he was told it continued to work on the project without following his instructions. By early February, the parties disagreed as to whether the Museum complied with the main issues in Büchel’s ultimatum. Büchel argued that the Museum created plans to display his unfinished work as the relationship continued to deteriorate, citing an e-mail chain sent between Joseph Thompson and another which mentioned the increasing likelihood of implementing “Plan B” and that the employee and the Museum’s curator should do any work that they had “80% certainty” followed Büchel’s designs. His argument was strengthened when staff members at the Museum voiced concern on whether the Museum was violating or risking Büchel’s intellectual property rights.
The First Circuit panel overruled the district court summary judgment decision for the Museum, holding it reasonable for a jury to believe that at least some of the Museum’s actions violated Büchel’s VARA rights. The court noted the remaining question of fact: whether Büchel’s reputation or honor within the artistic community was injured through the Museum’s actions.
The second of Büchel’s claims involved the Museum’s use of tarpaulins to cover Training Ground from view when using the rest of Building 5 for its Made at MASS MoCA exhibit. The Museum argued the tarpaulins were merely functioning to obscure Training Ground and not as an aesthetic change meant to distort it’s appearance in the eyes of the audience. Despite its intended purpose, however, some visitors were able to peek behind the tarps and form their own opinions on what they saw, revealing to visitors Büchel’s work of art before he was finished and ready to display it. Because the tarps did not completely reach the ground, one visitor stated that it was easy enough to get a peek at Training Ground just by crouching and slipping his head under the tarp or peeking between slits in the sheets, and the taller elements were easily seen peeking up above the tarps. The circuit court agreed with the district court’s ruling, denying that the use of tarpaulins modified the work. This, the court reasoned, was the only reasonable interpretation of the law because to hold otherwise would mean opening museums and galleries who enjoy good relationships with their artists to liability simply by covering a work of art to obscure it before formally opening that exhibit.
Büchel’s final claim was that the Museum violated his right of integrity by allowing visitors to see Training Ground in its unfinished state. The court noted the absence of inclusion of divulgation in VARA and declined to interpret VARA to include the claim. The direct right was not included in VARA. Had the right been more clearly included in the statute, the case would have been much more straightforward and spared both Büchel and the Museum considerable time and expense. The right to share art with the public is of course a deeply personal one, which should have the benefit of clear rules and safeguards. Here, the deeply convoluted and hidden nature of the right ultimately enabled Büchel to settle his dispute with the Museum and cease the exhibition of the unfinished work. In concrete terms, his right of divulgation was enforced, though not in clear terms that will allow future artists and institutions the benefit of clear guidance. Artists are left unaware of their rights, the precise result VARA itself was meant to avoid.
B. Rights of Privacy and Publicity
Like the right of divulgation, the right to privacy and the cause of action for invasion of privacy may be used by authors and artists. For example, the Fifth Circuit upheld a claim by a scientist and author of explanatory texts whose writings were appropriated and modified without his permission. But the utility of right to privacy actions will always be limited for artists. As Professor Kwall argues, “[T]he scope of the right of privacy varies from state to state and some formulations contain exceptions that are fatal to invasion of privacy actions based on moral rights violations.”
The right of publicity is far more robust in the United States than in other nations. The reasons for this are numerous. But the justification for enhanced protection of this right and not others stands as a curious policy choice when weighed against the meager application that rights under VARA and other personal rights are given when applied to artists. The cause of action flows from the law of privacy and is linked to the misappropriation requirement of the invasion of privacy claim, which was adopted by the Restatement (Second) of Torts. The claim then is deeply rooted in offenses directed at individuals which would cause them pain or mental stress, rather than lost economic opportunities. The justification courts used for granting individuals the right of publicity resembles the natural law justification for the creation of moral rights in France and elsewhere and has even been connected to Roman law.
The cause of action allows recovery if an author or artist has had their persona appropriated in an objectionable way. Such was the case involving musician and singer Tom Waits whose unique grumble was thinly copied by Frito-Lay in an advertising commercial. Waits had an absolute policy against commercials, which in his view undermined the integrity of a musician’s body of work. In the ensuing trial, a jury not only awarded him damages for the economic value of his voice but also for the injury to his mental state and professional reputation. The Ninth Circuit affirmed this award, reasoning that violating a plaintiff’s personal right of publicity causes potential humiliation or embarrassment. Professor Kwall is absolutely correct when she compares the rights of publicity with artist’s moral rights: “As the right of publicity safeguards individuals’ abilities to control the public presentations of their personas in commercial contexts, moral rights allow authors of artistic works a comparable measure of control regarding the substantive presentations of their works.”
Defamation acts as both a cause of action and a source of potential trouble for artists. On the one hand, defamation can provide relief for certain artists if their works are released to the public in a way which damages their reputation. An infamous nineteenth century example includes English art critic John Ruskin’s description of a work by James Whistler titled Nocturne in Black and Gold: The Falling Rocket. Ruskin saw that Whistler defied all expectation and uttered the famous line: “[N]ever expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public’s face.” In response, Whistler brought suit and won a judgment against Ruskin, though for a meager one farthing, with the costs of the trial contributing to the artist’s financial downfall. There are more recent examples as well. After the mayor of Baltimore accused the artist Glenn Walker of creating a watercolor which was “morally objectionable, obscene, and indecent,” the artist brought suit. The mayor defended on the grounds of absolute immunity, but the court disagreed, finding that the artist had properly alleged causes of action for libel and slander. There are other situations as well. For example, a distorted version of a work of art which is purported to be a work by an artist could be compensable under the law of defamation. Of course the claim may also be used against artists in some cases. Art that has been displayed in an exhibition may constitute publication for purposes of a libel claim against an artist, and art covering a wall mural with white paint may also be considered publication under state libel laws. These defamation suits may also arise after the death of an artist, particularly when the determination of authenticity by art experts can wildly shift the value of a contested work of art.
D. Breach of Contract
In a case involving the famed Monty Python comedy troupe, the Second Circuit held that extensive and unauthorized editing of a work protected by copyright likely constituted copyright infringement. Under their agreement with the BBC, Monty Python authorized the BBC to license their programs. In order to run the programs in the United States though, the programs would have to be edited down considerably, which resulted in many skits becoming nonsensical and meaningless. The Second Circuit used breach of contract as justification for upholding the Python’s rights of integrity. The Second Circuit upheld the district court’s decision that: “[T]he edited version broadcast by ABC impaired the integrity of appellants’ work and represented to the public as the product of appellants what was actually a mere caricature of their talents. We believe that a valid cause of action for such distortion exists . . . .” Importantly, the court justified the result by connecting the distortion of the Python’s works “in the continental concept of droit moral, or moral right.” Courts have also relied on other doctrines which flow from common law theories, such as contract law or even unfair competition.
In tracing the development of moral rights for artists in the United States, this Article pointed out the troubling resistance from judges, lawmakers, and writers who continue to express deep skepticism about the wisdom and utility of recognizing the moral rights of artists in their creations. One reason for this may be that American art gained international recognition in the middle of the twentieth century through contemporary art. And contemporary art is epistemological, which as Joan Kee argues “provoke[s] and unsettle[s] the structuring capacity of the law.” Even the U.S. Code definition of art is “prudence at best” or “philistinism at worst.” Christopher Bradley has even advocated artists set up business entities, like a limited liability company, for each work of art. Artists then would be selling not just the work itself but shares in the company which holds the work. Though the definitions may give clear guidance to lawyers and judges, they otherwise offer no “real instruction about how best to consider objects and visual images.” The dominance of copyright in the United States has overtaken the personal rights of artists such that when artists challenge preconceived notions and use ideas instead of objects, the law is left nearly useless. Conceptual artist Sol LeWitt used this idea to drive his creative process, noting that “[t]he idea becomes a machine that makes the art.”
The art world that consists of galleries, museums, auction houses, and private art buyers has a very different market than these other arts. And one of the biggest problems is the vast difference between the top end of the art market, which often involves deceased artists, and the rest of the market, which often includes living artists. Our current idea of artists is a relatively new phenomenon. What constitutes art, who decides who creates it, who it is for. Every work of art we can look at and appreciate today exists for two simple reasons: First, its creator decided to keep going and finish it. And second, its owners, caretakers, and preservers kept it safe for future generations. That first idea is the founding principle behind the personal rights of artists, while the second rightly rests on the economic concerns of art possessors and in policymakers’ concerns with preserving works of cultural significance. Becoming a recognized artist and crafting art requires years and years of hard work and dedication. As a result, making art after years of training and honing artistic practice should result in a sustainable career.
See also Monica M. Jackson, Archaeology, Looting and the Luxury Arts in the XXI Century, 13 Art Antiquity & L. 59, 62 (2008) (noting Vasari’s definition of good art “was essentially a connoisseurial approach towards the revival of the classical ideal”). See generally Giorgio Vasari, The Lives of the Artists IX–X (Julia Conaway Bondanella & Peter Bondanella trans., Oxford Univ. Press 1998).
Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the "Author," 17 Eighteenth-Century Stud. 425, 426–27 (1984).
Alfred C. Yen, The Interdisciplinary Future of Copyright Theory, 10 Cardozo Arts & Ent. L.J. 423, 430 (1992).
See Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, 10 Cardozo Arts & Ent. L.J. 293, 302 (1992) (“At base, however, the law is not so much systematically hostile to works that do not fit the individualistic model of Romantic ‘authorship’ as it is uncomprehending of them. Such works are marginalized or become literally invisible within the prevailing ideological framework of discourse in copyright—even to the point of literal invisibility.”).
As the visual artist and writer Molly Crabapple points out:
Not talking about money is a tool of class war. . . .
Even we successful artists do it. It’s easy to ignore luck, privilege, and bloody social climbing when you stand onstage in a pair of combat boots. It’s easy to say that if people are just good enough, work hard enough, ask enough, believe enough, they will be like us.
But it’s a lie. Winning does not scale. We may be free beings, but we are constrained by an economic system rigged against us. What ladders we have are being yanked away. Some of us will succeed. The possibility of success is used to call the majority of people failures.
Molly Crabapple, Filthy Lucre, Vice (June 5, 2013, 9:00 AM), https://www.vice.com/en/article/mvp8dn/filthy-lucre [https://perma.cc/S8CX-PEMD].
See, e.g., Amy Adler & Jeanne C. Fromer, Taking Intellectual Property into Their Own Hands, 107 Calif. L. Rev. 1455, 1463–65 (2019) (describing the controversy surrounding the artist Richard Phillips, who appropriated users Instagram pictures and sold large physical copies for $100,000 a piece).
A producer sent Oswalt a cease-and-desist order, forcing the production to shut down. Patton Oswalt, Silver Screen Fiend: Learning About Life from an Addiction to Film 126–27 (2015).
See, e.g., Lia Eustachewich, Washington Post Caught Scrubbing Kamala Harris ‘Prisoner’ Story, N.Y. Post (Jan. 22, 2021, 4:24 PM), https://nypost.com/2021/01/22/washington-post-caught-scrubbing-kamala-harris-prisoner-story/ [https://perma.cc/49VK-B4MN] (reporting on changes made by the Washington Post in 2021 to change an unflattering comment made by Kamala Harris before she was elected Vice President).
Jody Rosen, The Day the Music Burned, N.Y. Times (June 11, 2019), https://www.nytimes.com/2019/06/11/magazine/universal-fire-master-recordings.html [https://perma.cc/M98G-RBFQ].
Randy Lewis, Report: Universal Music Group Covered Up Destruction of Irreplaceable Master Tapes in 2008 Fire, L.A. Times (June 11, 2019, 3:15 PM), https://www.latimes.com/entertainment/music/la-et-ms-universal-hollywood-fire-master-recordings-20190611-story.html [https://perma.cc/UW45-BYDX].
See infra Part V.
See, e.g., Diane Leenheer Zimmerman, Copyright and Social Media: A Tale of Legislative Abdication, 35 Pace L. Rev. 260, 260, 266, 284 (2014).
See Nick Taylor, The Prospects for Copyright in a Bookless World, 30 Colum. J.L. & Arts 185, 194 (2007) (“For all of the promise of a Golden Age of copyright offered by the new permutations of content, we also must guard, quite seriously, against the prospects for copyright’s endangerment.”).
Roberta Rosenthal Kwall, The Soul of Creativity: Forging a Moral Rights Law for the United States xiv (2010). Kwall goes on to argue that “the economic model alone is not a sufficient basis for formulating the direction of the law and thus calls for consideration of the intrinsic dimension of innovation as a supplement to the conventionally understood economic incentive paradigm.” Id. at xiv–xv.
Virginia Rutledge, Christoph Büchel and Mass MoCA, Artforum (Mar. 2008), https://www.artforum.com/print/200803/christoph-buechel-and-mass-moca-19546 [https://perma.cc/VF6Y-2VQ2].
Henri Poincaré, Mathematical Creation, 20 Monist 321, 327–28 (1910).
See, e.g., Russ VerSteeg, Federal Moral Rights for Visual Artists: Contract Theory and Analysis, 67 Wash. L. Rev. 827, 843 (1992) (“Most artists, however, still create and sell their works without taking adequate contract or copyright measures.”).
Sam Ricketson & Jane C. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond 106–08 (2d ed. 2006).
As Roberta Rosenthall Kwall has argued: “In other countries, the intrinsic dimension of the creative process is recognized independently of the external commodity through moral rights laws that protect the personal, as opposed to the economic, rights of authors.” Kwall, supra note 14, at 5.
U.S. Const. art. I, § 8, cl. 8.
Irah Donner, The Copyright Clause of the U.S. Constitution: Why Did the Framers Include It with Unanimous Approval, 36 Am. J. Legal Hist. 361, 362 (1992) (“[T]he framers of the Constitution were very anxious for the United States to be culturally competitive with the other countries of the world.”).
Emer de Vattel, The Law of Nations; Or Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns 433 (1820).
The Marquis de Somerueles, Stewart’s Rep. 482 (Court of Vice-Admiralty, N.S., 1813), reprinted in John Henry Merryman et al., Law, Ethics, and the Visual Arts 12–13 (5th ed. 2007).
Id. As the late Professor Merryman noted, this case was a lost case for many years, despite its relevance to cultural policy:
One can only speculate about the reasons why the decision in The Marquis de Somerueles, with its obvious applicability to modern events and its quotable language, appears to have been ignored in the cultural property literature. The probable answer is that no one knew about it. It was published in an obscure volume of reports of a specialized court in a remote place . . . .
John Henry Merryman, The Marquis de Somerueles, 5 Int’l J. Cultural Prop. 319, 325 (1996).
See Merryman et al., supra note 24, at 13.
See 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 215, pmbl.
For an excellent guide to the various rights protected at the state level, see 4 Thomas D. Selz et al., Entertainment Law: Legal Concepts and Business Practices, § 20:34 (3d ed. 2021).
See Visual Artists Rights Act of 1990, Pub. L. No. 101–650, 014 Stat. 5128 (codified at 17 U.S.C. § 106(A)).
See Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised in Paris on July 24, 1971, and amended Sept. 28, 1979, https://wipolex.wipo.int/en/text/283693 [https://perma.cc/Z2VE-AURA] [hereinafter Berne Convention]; Brandon J. Pakkebier, Form Over Function: Remedying VARA’s Exclusion of Visual Art with Functional Qualities, 103 Iowa L. Rev. 1329, 1334–35 (2018) (“VARA . . . more explicitly grant[ed] the moral rights required under article 6bis of the Berne Convention rather than relying on a patchwork of complementary laws.”).
Kwall, supra note 14, at 29.
Berne Convention Article 6bis provides:
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.
Berne Convention, supra note 30, art. 6bis.
17 U.S.C. § 106A(a)(3)(A).
Id. § 106A(a)(1)–(2).
Id. § 106A(a)(3)(B).
See id. § 101 (defining works of visual art).
See, e.g., Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 323, 325 (S.D.N.Y. 1994) (holding that recognized stature serves as a “gate-keeping” feature to protect works that “art experts, the art community, or society in general views as possessing stature”).
Gillian Davies & Kevin Garnett, Moral Rights 3 (2d ed. 2016) (citing The Gregory Committee, Report of the Copyright Committee, 1952, Cmd. 8662, ¶219 (UK)).
Gerald Dworkin, The Moral Right of the Author: Moral Rights and the Common Law Countries, 19 Colum.–VLA J.L. & Arts 229, 230–32 (1995).
See Berne Convention for the Protection of Literary and Artistic Works, revised at Rome on June 2, 1928, art. 6bis, 123 L.N.T.S. 235, 249, 251; Tania Cheng-Davies, Honour in UK Copyright Law Is Not ‘A Trim Reckoning’—Its Impact on the Integrity Right and the Destruction of Works of Art, 36 Oxford J. Legal Stud. 272, 279 (2016).
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 U.S.A. 1, 9–10 (1980) (“Droit moral . . . emerged not from statute, but from judicially created doctrines, which developed slowly in the nineteenth century, and more rapidly in the twentieth.”).
See 1 Sam Ricketson & Jane C. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond 587 (2d ed. 2006).
Id. at 585–95.
See Davies & Garnett, supra note 38, at 3 (“Moral rights secure the bond between authors and their works; they safeguard the expression of the author’s personality through his work by giving recognition and protection to creative integrity, reputation and personality.”).
Id. at 4.
Miller v. Taylor (1769) 98 Eng. Rep. 201, 252. In the case, the judges considered the importance of copyright to creators:
From what source, then, is the common law drawn . . . ?
. . . .
[The author] can reap no pecuniary profit if, the next moment after his work comes out, it may be pirated upon worse paper and in worse print, and in a cheaper volume.
. . . .
The author may not only be deprived of any profit, but lose the expence he has been at. He is no more master of the use of his own name. He has no control over the correctness of his own work. He can not prevent additions. He can not retract errors. He can not amend; or cancel a faulty edition. Any one may print, pirate, and perpetuate the imperfections, to the disgrace and against the will of the author; may propagate sentiments under his name, which he disapproves, repents and is ashamed of. He can exercise no discretion as to the manner in which, or the persons by whom his work shall be published.
Id. at 252.
Sheila J. McCartney, Moral Rights Under the United Kingdom’s Copyright, Designs and Patents Act of 1988, 15 Colum.–VLA J.L. & Arts 205, 219 (1991).
See Davies & Garnett, supra note 38, at 15–16, 15 n.10 (arguing the claim that the English Act of July 1862 may not have impacted moral rights development in England).
Id. at 15.
Carlton Illustrators v. Coleman Co. (1911) 1 K.B. 771, 778–80 (U.K.). This statement of the judge notes the connection between the act and the right of integrity: “To come within the enactment an alteration must be a material alteration having regard to the object with which the enactment was passed; and that which would be material in that sense would be an alteration which might affect the credit and reputation of the artist.” Id. at 780.
See Davies & Garnett, supra note 38, at 16.
John Henry Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1023, 1026 (1976) (“The development of the moral right of the artist is merely another example of the extent to which this tattered brocard [referring to the assumption that civil law only comes from the pen of the legislator] is inapplicable to France.”).
See Cyrill P. Rigamonti, The Conceptual Transformation of Moral Rights, 55 Am. J. Comp. L. 67, 106 n.184 (2007) (tracing the personality approach to moral rights in France to the revolutionary decrees of 1791 and 1793); Jane C. Ginsburg, A Tale of Two Copyrights: Literary Property in Revolutionary France and America, 64 Tul. L. Rev. 991, 1005–06, 1008–09 (1990).
Ginsburg, supra note 55, at 1014.
Laura J. Murray & Samuel E. Trosow, Canadian Copyright: A Citizen’s Guide 51 (2d ed. 2013).
David Saunders, Authorship and Copyright 80 (1992).
See Jonas Brown-Pedersen, The Inadequacy of UK Moral Rights Protection: A Comparative Study on the Waivability of Rights and Recontextualisation of Works in Copyright and Droit D’auteurs Systems, 3 London Sch. Econ. L. Rev. 115, 119 (2018) (citing Billecocq v. Glendaz, Tri Civ Seine (1814) (unreported)).
See Susan P. Liemer, On the Origins of Le Droit Moral: How Non-Economic Rights Came to Be Protected in French IP Law, 19 J. Intell. Prop. L. 65, 112 n.275 (2011).
See Brown-Pedersen, supra note 59; Liemer, supra note 60.
Arathi Ashok, Moral Rights—TRIPs and Beyond: The Indian Slant, 59 J. Copyright Soc’y U.S.A. 697, 698 (2012).
Widow Verge v. Creditors of Mr. Vergne, Cour d’appel [CA] [regional court of appeal] Paris, le ch., Jan. 11, 1828, Arret Vergne; Robert C. Bird & Lucille M. Ponte, Protecting Moral Rights in the United States and the United Kingdom: Challenges and Opportunities Under the U.K.'s New Performances Regulations, 24 B.U. Int’l L.J. 213, 223 (2006).
See Saunders, supra note 58, at 103 (“On a variety of grounds and without any uniform rationale or general theory, case by case the French courts began to develop a . . . jurisprudence resting in part on article 1382 of the Code civil (the general rule of liability for civil wrongs).”); Cheryl Swack, Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of Droit Moral Between France and the United States, 22 Colum.–VLA J.L. & Arts 361, 365–66 (1988).
Merryman, supra note 54, at 1026.
17 U.S.C. § 106. As Alina Ng argues: “Even though the Copyright Act recognizes the author as the first owner of a copyright, the exclusive rights that are protected under § 106 are fully transferrable and may be owned by an owner of copyright through an assignment of rights from the author.” Alina Ng, Literary Property and Copyright, 10 Nw. J. Tech. & Intell. Prop. 531, 564 (2012).
As Cyrill P. Rigamonti has argued:
The inclusion of moral rights in statutory copyright law was generally understood to be the defining feature of the Continental copyright tradition, while the lack of statutory moral rights protection was considered to be a crucial component of the Anglo-American copyright tradition. This dichotomy had been celebrated and cultivated since World War II on both sides of the Atlantic to the point where the statutory protection of moral rights or the lack thereof had become an integral part of each legal system’s identity, essentially dividing the world of copyright into two fundamentally different ideal types, one that includes moral rights, and another that excludes moral rights.
Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int’l L.J. 353, 354 (2006).
Kwall, supra note 14, at xiii. She argues that failure of a deeper recognition of the source of creativity poses continuing problems:
The United States’ resistance to exploring more fully the implications of the intrinsic dimension of the creative process has resulted in a legal system lacking sufficient moral rights protections so that authors by and large do not have the ability to safeguard their works from textual integrity violations such as lack of attribution, misattribution, and mutilation. The failure of American law to embrace a multidimensional perspective of human creativity is problematic on several fronts. . . . On the most global level . . . once the intrinsic dimension of the creative process is more fully understood, it will be possible to think more expansively about legal protections that will facilitate safeguarding the messages conveyed by works of authorship.
Id. at xv.
Hans Abbing, Why Are Artists Poor?: The Exceptional Economy of the Arts 113–14 (2002).
See William Deresiewicz, The Death of the Artist: How Creators Are Struggling to Survive in the Age of Billionaires and Big Tech 41–42 (2020). As Deresiewicz argues:
The result, in sum, is the ongoing loss of the “middle-class” artist. The vast majority of people who try to become professional artists do not succeed; the vast majority of those who earn any money at all from their art earn tiny amounts. That much has been true for decades if not centuries. What is new is that even artists who are otherwise successful—who make art as their principal vocation; who produce on a regular basis; who publish, show, release, perform; who win a modicum of recognition—are unable to support themselves at a middle-class level. To pay for adequate housing, to afford reliable health care, to take a vacation every once in a while—rather than subsisting from check to check, forever on the brink of the financial abyss. That possibility, beyond the biggest winners in the winner-takes-all, is disappearing from the arts.
Id. at 42.
Id. at 45 (“The creation of art cannot be automated, nor can technology make the process more efficient.”).
Id. at 67.
Id. at 182 (“In the 1940s, the number of galleries that specialized in contemporary American art was no more than twenty; the number of collectors, about a dozen.”).
Id. at 183.
As Deresiewicz argues:
As for the art of the art world, the irreducible fact is that the creation of unique aesthetic objects will always be extremely labor intensive, which means that they will always be expensive, which means that (failing a truly epic increase in public support) we will always need the rich to buy or otherwise support them. Such labor will also always be highly skilled, cognitively if not manually, which means that it will always call for many years of training. Galleries may be closing, but the gallery system is not going away.
See id. at 194.
As Joan Kee argues:
From the late 1960s, which saw the creation of entities like Art Basel, the world’s first contemporary art fair, to approximately 1973, when the OPEC oil crisis severely impacted the economies of countries that had large numbers of institutional and private collectors, the international art market expanded not only in terms of sales volume but also in the kinds of art shown, including conceptual art. The expanded art market jumpstarted the formation of “art law,” which was not so much a discrete legal subfield as it was a loose organizational rubric consisting of lawyers representing constituents of the art world (including dealers, museums, and artists) and law scholars interested in the problems of the art market, one of the most opaque and least regulated legal markets in any capitalist society.
Joan Kee, Models of Integrity: Art and Law in Post-Sixties America 33 (2019).
Deresiewicz, supra note 70, at 27–38.
Id. at 36.
Justin Hughes, The Personality Interest of Artists and Inventors in Intellectual Property, 16 Cardozo Arts & Ent. L.J. 81, 84–85 (1998) (citing Robert Nozick, Anarchy, State and Utopia 174–75 (1974)).
K.E. Gover, Art and Authority: Moral Rights and Meaning in Contemporary Visual Art 90 (2018).
See Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997) (reasoning that for a time in the United States “it was accepted wisdom that the United States did not enforce any claim of moral rights”).
Crimi v. Rutgers Presbyterian Church, 89 N.Y.S.2d 813, 813–14 (Sup. Ct. 1949).
See id. at 815–16 .
Id. at 818–19. As the court held then: “Thus, the claim of this plaintiff that an artist retains rights in his work after it has been unconditionally sold, where such rights are related to the protection of his artistic reputation, is not supported by the decisions of our courts.” Id. at 819. The only remedy the New York court deemed of use for the artist would have been contract. See id.
Amy M. Adler, Against Moral Rights, 97 Calif. L. Rev. 263, 265 (2009).
Id. (“[T]he right of integrity threatens art because it fails to recognize the profound artistic importance of modifying, even destroying, works of art, and of freeing art from the control of the artist.”).
Id. at 283.
2 Hal Foster et al., Art Since 1900: Modernism Antimodernism Postmodernism 406 (2d ed. 2011).
Interview by David A. Ross et al. with Robert Rauschenberg, Artist, at San Francisco Museum of Modern Art (May 6, 1999), https://s3-us-west-2.amazonaws.com/sfmomamedia/media/uploads/documents/research/rrp_sfmoma_rauschenberg_interview_may_6_1999.pdf [https://perma.cc/YE22-SZD5]. As Rauschenberg described the encounter in 1999:
I was on a very low-budget situation. But I bought a bottle of Jack Daniels. And hoped that—that—that he wouldn’t be home when I knocked on his door. [laughter] And he was home. And we sat down with the Jack Daniels, and I told him what my project was. He understood it. And he said, “I don’t like it. But, you know, I—I understand what you’re doing.” And—and so—He had a painting that he was working on, and he went over and—and—and put it against the—the—the—the door to the stairs. And as though, you know, being closed wasn’t enough. By now, [laughs] I’m really frightened. And—and—and—and he said, “OK. I don’t like it, but I’m—I’m going to go along with it, because I understand the idea.” And—He went through one portfolio, and he said, “No. It’ll have to be something that—that I’ll miss.” So I’m—I’m—I’m, you know, just sweating, shitless, ya know? And then I’m thinking, like—like, It doesn’t have to be something you’re gonna miss. [they laugh] And—and then—and then—Then he went through a second portfolio. Which I thought was kind of interesting, things he wouldn’t miss and things he would miss and—And then—and—and he pulled something out, and then he said, “I’m gonna make it so hard for you to erase this.” And he had a third portfolio, that was—that had—had—had—had crayon, pencil, charcoal and—and—and—And it took me about a month, and I don’t know how many erasers, to do it. But actually, you know, on the other side of this is also—I mean, if there’s ever any question about this, there’s a gorgeous drawing of Bill’s.
See Christopher G. Bradley & Brian L. Frye, Art in the Age of Contractual Negotiation, 107 Ky. L.J. 547, 576–78 (2019) (describing the Artist’s Reserved Rights Transfer and Sale Agreement, a contract which attempted to safeguard the rights of artists and has been accepted by few collectors because it benefits artists but not art collectors).
DaSilva, supra note 41, at 2–4.
See supra Section II.B.
See Deresiewicz, supra note 70, at 45–46 (“As the art world consolidates around a few global behemoths like Gagosian and David Zwirner, the mid-level galleries that provide aspiring artists with early exposure and sales are getting throttled.”).
Kwall, supra note 14, at 4–6 (“A legal system committed to authorship morality should be concerned with recognizing authors’ dignity interests.”).
Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser, 39 N.Y.U. L. Rev. 962, 971 (1964).
Hughes, supra note 80, at 83, 90.
Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 Colum.–VLA J.L. & Arts 477, 478 (1991).
Berne Convention, supra note 30, art. 6bis(1).
H.R. Rep. No. 101-514, at 5, 19 (1990), as reprinted in 1990 U.S.C.C.A.N. 6926.
Pollara v. Seymour, 344 F.3d 265, 269 (2d Cir. 2003); Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81–82 (2d Cir. 1995).
VARA provides that, in addition to the exclusive rights provided by § 106 of the Copyright Act, but subject to certain limitations, the author of a work of visual art:
(1) shall have the right—
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
17 U.S.C. § 106A(a).
Id. § 102(a).
Carter, 71 F.3d at 83.
17 U.S.C. § 101 describes both what a “work of visual art” is and what the definition does not include:
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.
See 17 U.S.C. § 101.
Id. § 106A(a).
Carter, 71 F.3d at 84.
17 U.S.C. § 106A(a).
See John Henry Merryman, The Moral Right of Maurice Utrillo, 43 Am. J. Compar. L. 445, 445 (1995) (noting that the French legal treatment involves a right of attribution which grants standing to institute seizure of offending works and even the possibility of criminal actions for wrongful attributions).
Hughes, supra note 80, at 86, 88, 165 n.321.
17 U.S.C. § 106A(a).
Id. § 106A(a)(1)(B).
Id. § 106A(a)(2).
See infra Section V.A and accompanying text.
Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 34 (2003).
Roberta Rosenthal Kwall, The Attribution Right in the United States: Caught in the Crossfire between Copyright and Section 43(A), 77 Wash. L. Rev. 985, 985 (2002).
Noland v. Janssen, No. 17-CV-5452, 2020 WL 2836464, at *1 (S.D.N.Y. June 1, 2020).
Id. at *2.
Id. at *2, *6.
Id. at *1–2.
Id. at *7.
Id. at *6.
See Nathan M. Davis, As Good as New: Conserving Artwork and the Destruction of Moral Rights, 29 Cardozo Arts & Ent. L.J. 215, 217 (2011) (“[VARA’s] narrow scope confers inconsistent and unpredictable protections over artworks . . . .”); see also Sarah E. Botha, Art Conservation: Problems Encountered in an Unregulated Industry, 26 Colum. J.L. & Arts 251, 254–55, 270 (2003) (examining the wide differences of opinion within art conservation about standard practice).
H.R. Rep. No. 101-514, at 16 (1990), as reprinted in 1990 U.S.C.C.A.N. 6926.
17 U.S.C. § 106A(a)(3)(A).
Id. § 106A(a)(3)(B).
As the Register of Copyrights Ralph Oman stated in his subcommittee statement: “The theory of moral rights is that they result in a climate of artistic worth and honor that encourages the author in the arduous act of creation.” H.R. Rep. No. 101-514 at 5, 15 (1990), as reprinted in 1990 U.S.C.C.A.N. 6915, 6925.
Christian Narkiewicz-Laine is an artist, architecture critic, curator, and founding president of the Chicago Athenaeum Museum of Architecture and Design. CHRISTIAN Narkiewicz LAINE https://www.cknl.eu/about.html [https://perma.cc/PK5Z-Y35L] (last visited Jan. 31, 2021).
Narkiewicz-Laine v. Doyle, 930 F.3d 897, 900 (7th Cir. 2019).
Id. at 900–01.
Id. at 900.
Id. at 901.
Id. at 899, 901.
Id. at 901.
Id. at 900 (first referencing 17 U.S.C. § 106A; and then citing Kelly v. Chi. Park Dist., 635 F.3d 290, 296 (7th Cir. 2011)).
Id. at 903 (citing Ill. Sch. Dist. Agency v. Pac. Ins. Co., 571 F.3d 611, 615 (7th Cir. 2009)).
Id. at 904 (“Because Narkiewicz-Laine is not entitled to recover twice for the same property, the actual damages attributed to those four works must be subtracted out of the jury’s award of actual damages for all destroyed property.”).
Patrick S. Ryan, Application of the Public-Trust Doctrine and Principles of Natural Resource Management to Electromagnetic Spectrum, 10 Mich. Telecomm. & Tech. L. Rev. 285, 345 (2004) (“[P]roperty rights under common-law . . . have existed since the Magna Carta.”).
Narkiewicz-Laine, 930 F.3d at 903.
Id. at 904.
17 U.S.C. § 504(a) (“(a) In General.—Except as otherwise provided by this title, an infringer of copyright is liable for either—(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or (2) statutory damages, as provided by subsection (c).”).
E.g., Bi-Rite v. Button Master, 578 F. Supp. 59, 62 (S.D.N.Y. 1983) (“[The damages provision of § 504(c)] provides an appropriate analogy for setting each defendant’s minimum liability to the individual plaintiffs . . . because the right of publicity resembles the federal copyright law in the monopoly it grants to the commercial use of one’s name or likeness.”).
Narkiewicz-Laine, 930 F.3d at 904.
Id. at 904. In addition, although parts of the Copyright Act were cited to prevent recovery of the violation of Narkiewecz-Laine’s moral rights, those provisions were also used to foreclose recovery of attorney costs. Id. at 904, 906. VARA does allow a court in its discretion to award attorneys’ fees to a prevailing party. Id. at 906 (citing 17 U.S.C. § 505). A party is considered to be the “prevailing party” when the court materially alters the legal relationship between the parties in his favor, such as in a favorable judgment. Id. (citing Riviera Distribs., Inc. v. Jones, 517 F.3d 926, 928 (7th Cir. 2008)). Under copyright law, prevailing parties are presumptively entitled to attorneys’ fees. Id. Crucially, under this area of law, prevailing plaintiffs are treated the same as prevailing defendants, unlike in civil rights litigation where a plaintiff can be considered to be the prevailing party even though they are not successful on every claim. Id. (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). The entitlement of attorneys’ fees even extends to the costs incurred in defending their award. Id. at 907 (quoting JCW Invs., Inc. v. Novelty, Inc., 509 F.3d 339, 342 (7th Cir. 2007)). Narkiewicz-Laine argued that he was presumptively entitled to attorneys’ fees because he prevailed on four VARA claims with the jury, receiving a judgment for $120,000. Id. at 906. However, the Seventh Circuit weighed the one VARA complaint covering the whole of the 1,457 art pieces and took account of the received damages, which was far below the $11 million sought. Id. at 900, 906. Because the jury’s verdict created a situation where either party could reasonably argue being the prevailing party, the Seventh Circuit upheld the district court’s decision to decline awarding attorneys’ fees to either party. Id. at 906–07.
Id. at 904.
See, e.g., Kwall, supra note 14, at 6 (“[B]oth the right of attribution and the right of integrity function to safeguard the author’s meaning and message, and thus are designed to increase an author’s ability to safeguard the integrity of her texts.”).
17 U.S.C. § 106A(a)(3)(B).
See, e.g., Martin v. City of Indianapolis, 192 F.3d 608, 610, 612–13 (7th Cir. 1999) (“We are not art critics, do not pretend to be and do not need to be to decide this case.”).
Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303, 325 (1994) (“A plaintiff need not demonstrate that his or her art work is equal in stature to that created by artists such as Picasso, Chagall, or Giacometti.”).
Castillo v. G&M Realty L.P., 950 F.3d 155, 163, 166–67, 172 (2d Cir. 2020).
Eileen Kinsella, A Stunning Legal Decision Just Upheld a $6.7 Million Victory for the Street Artists Whose Works Were Destroyed at the 5Pointz Graffiti Mecca, ARTNET NEWS (Feb. 20, 2020), https://news.artnet.com/art-world/5pointz-ruling-upheld-1782396 [https://perma.cc/4TD7-NX5X].
See Emma C. Peplow, Paint on Any Other Canvas: Closing a Copyright Loophole for Street Art on the Exterior of an Architectural Work, 70 Duke L.J. 885, 901, 903 (2021) (“[S]treet art both meets the requirements for copyright law and is well suited to its underlying purpose,” but “copyright law has historically struggled to adapt to the changing world of art.”); Richard Chused, Protectable “Art”: Urinals, Bananas, and Shredders, 31 Fordham Intell. Prop. Media & Ent. L.J. 166, 216 (2020) (arguing the disappearance of the murals at 5Pointz “was eerily similar to the disappearance of [Marcel] Duchamp’s Fountain—here today, gone tomorrow”); Sara Rosano & Birgit Kurtz, Tear Down This Wall? The Destruction of Sanctioned Street Art Under U.S. and Italian Law, 30 Fordham Intell. Prop. Media & Ent. L.J. 767, 783–84 (2020) (arguing that in comparison with Italian law, “VARA appears to offer a balanced approach,” but there are still no firm guarantees that “artists will be able to meet their evidentiary burdens . . . or that the parties can even afford the ever-rising costs of litigation”); Mary LaFrance, Public Art, Public Space, and the Panorama Right, 55 Wake Forest L. Rev. 597, 615 (2020) (arguing that in recent years “artists have become more aggressive in asserting” their rights, especially copyrights); Emma G. Stewart, United States Law’s Failure to Appreciate Art: How Public Art Has Been Left Out in the Cold, 97 Wash. U. L. Rev. 1233, 1234, 1237 (2020) (arguing that artists who create public art “are perhaps most in need of moral rights, and yet the work of these artists is often ignored by and excluded from the legal definition of art in VARA”); Note, Accession on the Frontiers of Property, 133 Harv. L. Rev. 2381, 2387–89 (2020) (arguing principles of accession would have better solved the dispute, which would “award the entitlement to the owner who can best make use of it, which in turn helps maximize social value”).
Castillo, 950 F.3d at 162.
Id. See generally Marta Iljadica, Copyright Beyond Law: Regulating Creativity in the Graffiti Subculture 9–31 (2016) (writing that street artists construct their own styles to distinguish their work and signal their group affiliation).
Castillo, 950 F.3d at 162.
Id. at 163–64; cf. Richard Chused, Moral Rights: The Anti-Rebellion Graffiti Heritage of 5Pointz, 41 Colum. J.L. & Arts 583, 625 (2018) (writing that VARA’s requirement for recognized stature violates a basic copyright norm adopted by Justice Holmes, that those trained in the law should be cautious when considering the visual arts).
Castillo, 950 F.3d at 163.
Id.; cf. Joseph L. Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149, 162 (1971) (arguing that no property owner has an “unqualified right to destroy”).
Castillo, 950 F.3d at 163.
See, e.g., Erik Badia & Katherine Clarke, Demolition of Graffiti Mecca 5Pointz Draws Tourists and Artists in Mourning, N.Y. Daily News (Aug. 22, 2014, 4:29 PM), https://www.nydailynews.com/life-style/real-estate/demolition-graffiti-mecca-5pointz-begins-article-1.1913624 [https://perma.cc/XH79-HMZG].
Castillo, 950 F.3d at 163.
Id.; see Henry Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. Legal Stud. 95, 110 (1997) (“[F]or an artist, reputation and personality become one and the same.”).
Castillo, 950 F.3d at 163.
Id. at 163–64.
Id. at 164.
Id.; see Christine Steiner & Bee-Seon Keum, Art Law: Looking Back, Looking Forward, 20 Chap. L. Rev. 119, 141 (2017) (writing about the difficulty inherent in systematically valuing art, explaining that “the practice of valuing art for tax purposes relies heavily on the opinions of appraisers who are demonstrated to be experts in the property being appraised”).
Castillo, 950 F.3d at 164.
Id. at 166. The right of integrity under 17 U.S.C. § 106A (VARA) was initially meant to only apply to works of recognized stature, but the recognized stature hurdle was only left to apply to intentional or negligent destruction. David Nimmer, Copyright in the Dead Sea Scrolls: Authorship and Originality, 38 Hous. L. Rev. 1, 185 n.922 (2001).
Castillo, 950 F.3d at 166.
Id. (referencing Justice Holmes’s observation in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903)).
Id. at 166–67