Intellectual Property and the Arts
Artists and Moral Rights
This is the fifth in a series of articles sponsored by the CAA Committee on Intellectual Property (CIP), in which a hypothetical question is posed on some aspect of rights, permissions, fair use, and related topics. We provide a short answer on the legal aspects of the question, followed by commentary from a practical perspective. This feature is intended to provide general information and does not constitute legal advice. If you have specific legal questions, please contact an intellectual-property attorney.
Q: I understand that copyright is a special right for makers of creative work, including works of art. I’ve also heard the term “moral rights.” What does this term mean? How do moral rights differ from copyrights?
A: In the United States, copyright is seen as a property right, one that creates economic incentives for authors to create works by giving them exclusive rights to control their work (in reproductions, photographs, editions, the preparation of derivative works, public performances, public displays, and so on). By exploiting these rights, copyright owners can, if they are fortunate, earn income.
National governments grant copyright rights for a limited period of time (currently lifetime of the artist plus seventy years in the U.S. and most European countries). At least in the U.S., copyright law reflects a trade-off: the copyright owner is given incentives to create, while the public benefits from the growth and enrichment of a nation’s cultural patrimony. In many other countries, copyright is seen as a right arising out of natural law, inherent in human creative endeavor, rather than being assimilated to an economically valuable property right.
Moral rights belong to a special group of rights intended to protect an individual’s personality, such as the right to one’s own identity, reputation, and privacy. The concept of a special category of personality rights for artists originated in France in the eighteenth century. These rights have been termed artists’ “moral rights” because they presume an intimate bond between an artist’s personality and his or her creative product.
The first artists’ moral-rights legislation in the U.S., the California Art Preservation Act, became law in California in 1980. In 1990, Congress enacted a federal artists’ moral-rights bill, the Visual Artists Rights Act (VARA). VARA took effect June 1, 1991. Principally, it ensures the artist’s right to the continued physical integrity of his or her work, even after it is sold.
Under VARA, if the owner of a work of visual art purchased in the U.S. after June 1, 1991, intentionally distorts or mutilates it, or modifies the work in a manner prejudicial to the artist’s honor or reputation, the artist has a right to sue for damages. In addition, the artist has the right to prevent destruction of a work, if it is one of “recognized stature”; courts have established evidentiary requirements and tests for assessing whether a work meets that threshold. For works of lesser-known artists, or for works destroyed before an artist has become professionally established, it can be difficult to prove that this standard has been met.
VARA also grants artists the right to have their names associated with their work and only their work, and to prevent their names from being associated with their work should it be distorted, mutilated, or modified by someone else. Rights granted under VARA are personal to artists and must be enforced by the creators themselves: they cannot be transferred by assignment or license.
VARA only applies to works of visual art, which is a term limited to paintings, drawings, prints, sculpture, and photographs (if produced for exhibition only), created as unique objects or in signed, limited editions of two hundred or fewer. Film and video are specifically excluded from the protections of VARA. Artworks that otherwise qualify as works of visual art, but are integrated into the fabric of a building after June 1, 1991 (murals, for example), receive limited protection. If an owner wishes to remove an artwork from a building and it can be detached without damage, the owner is obligated to make a good-faith effort to notify the artist of the intended action. The owner must wait at least ninety days after providing notice to the artist, to allow the artist to arrange for the work’s safe removal. Only after such ninety-day period may the owner remove the work, if the artist has not removed the artwork or paid for its removal.
Although artists may not transfer their rights under VARA, they can waive whatever rights they may have under the law. They also can be asked to sign a release authorizing the removal of a work attached to a building, even if the work would be destroyed or damaged by the removal. Under VARA, the artist’s rights to prevent destruction or mutilation of his or her artworks lapse upon death, and are not inherited by heirs or an estate.
Prior to the enactment of VARA, several states passed some form of artist’s moral-rights legislation. (These include California, Connecticut, Maine, Massachusetts, Nevada, New Jersey, New Mexico, New York, Pennsylvania, and Rhode Island.) State laws cover activity within the borders of the respective states and were preempted by VARA, except in cases where state and federal law do not overlap. Some state laws cover a wider range of artwork than VARA, for example, or allow for a broader set of rights; some also allow an artist’s heirs to enforce moral rights after the artist’s death. New York law prohibits anyone from knowingly displaying the work of a living visual artist, or a reproduction of the work, if the work is displayed in an altered state that might harm the artist’s reputation. Artists are thus advised to check the provisions of any applicable state law, as well as VARA, in determining the full range of moral-rights protection available for their work in the U.S.
CIP Commentary
The concept of an artist having moral rights rests on the assumption that a work of art is a special kind of production, unlike ordinary property. Ownership of works of art protected by moral-rights laws is conditional, much as real-estate ownership is conditioned by zoning laws. In most European countries, moral rights are considered an artist’s “natural rights” (analogously, liberty and the pursuit of happiness are affirmed as natural human rights in the U.S. Declaration of Independence).
Natural rights are inalienable—they cannot be signed away. In the U.S., however, an artist—s moral rights can be waived: legislators argued that artists should not be forced to accept moral-rights protection for their work. Unsurprisingly, a waiver of moral-rights protection for an artwork attached to a building in the U.S., or for other works of public art, is now commonly requested when such an artwork is commissioned. From an artists’s point of view, this amounts to forcing him or her to waive VARA protection or lose the chance to execute such important art commissions.
Of the constellation of moral rights applicable in other countries, VARA affirms only the rights of integrity (the right to the continued physical integrity of the work after sale) and attribution (the right of the artist to have his or her name associated with his or her work, and only his or her work). In Europe (and a number of other countries) two additional categories of artists’ moral rights are recognized: the right to decide when or whether a work will be shown in public (right of divulgation); and the right to withdraw a work from its owner after payment of an indemnity (right to repent and retake).
In most European countries these rights apply to artistic creations in all media and are perpetual (they can be enforced by the artist’s heirs after the artist’s death) as well as inalienable. Special provisions apply to work permanently attached to buildings, however, even in other countries. Although VARA’s provisions are quite limited and are also subject to exceptions and waiver, this law still marks a significant advancement in the professional status of visual artists working in the U.S.
For more information, check the National Endowment for the Arts guide to the Visual Artists Rights Act at http://arts.endow.gov/artforms/Manage/VARAhtm. Basic provisions of VARA are listed at www.loc.govt/copyright/title17/92chap1.html.
Originally published in CAA News 29, no. 3 (May 2004): 12–13.
