December 2002
Around the world copyright law tends to be based on either natural law or utilitarian principles, or in some countries, a combination of these. The European view of copyright is based on natural law concepts; in other words, an author’s rights are personal to that individual. This model recognizes “moral rights,” a translation from the French term “droit moral.” Moral rights ensure that authors have the right to control their works which acknowledges that the reputation or honor of the creator of the work can be adversely affected absent the right of control. The rights are personal to the author because a work created by an author is infused with his or her personality. In other countries, not only are these rights personal to the author, but the rights may be of potentially infinite duration since other countries lack the limitation contained in the U.S. Constitution that restricts the duration of copyright to “limited times.”
By contrast, copyright law in the United States is based primarily on utilitarian principles which is economically rather than personally based. Even the constitutional clause is economically based since exclusive rights are economic rights. Under a variety of laws, including one particular provision of the Copyright Act, however, the law does provide some of the moral rights that are available to European authors in their home countries. So, to some extent, U.S. law is a hybrid.
The predominant moral rights in Europe are paternity and integrity. Paternity is the right to have a work identified as having been created by that particular author. Integrity is the right to ensure that the work is not altered in a way that is prejudicial to the reputation of the author. These two rights are actually mentioned in the Berne Convention, but there are some other moral rights that are not included in the treaty but which the national law of some countries provide nonetheless. For example, French law provides the following additional rights. (1) The right of disclosure that gives the author the final decision on when and where to publish. Additionally, this right ensures that a publisher is prohibited from changing or modifying an author’s work without the written consent of the author. (2) The right to reply to criticism which gives authors the right to reply to critics in the same place that the critic’s comments appeared. (3) The right to withdraw or retract enables authors to reflect changed views by buying remaining copies of his or her works at a discount price. Authors may also prevent the printing of additional copies of such a work.
When the U.S. joined the Berne convention,[1] the moral rights issue came to the forefront in this country. No moral rights provision was included in the implementing legislation because Congress concluded that various state and federal laws afforded U.S. authors the minimum protection necessary for Berne accession. These laws include trademark law as well as those governing misappropriation, defamation, and the rights of publicity and privacy. Additionally, eleven states already had some moral rights laws on their books already.
The one area in which it was determined that moral rights had to be specifically included in U.S. law was for works of visual art. Thus, in 1990 Congress passed the Visual Artists Act (VARA) that gave the rights of attribution and integrity to works of visual art created after 1990. The statute applies only to works of visual art, defined as original works of art such as paintings, sculpture and pictorial works, and to 200 or fewer signed and numbered reproductions of these works. For these works, the rights extend only for life of the author instead of the usual life plus 70 years. The reason for this shorter term is that the rights are personal to the artist, and Congress believed that the heirs of an artist would be unable to speak for the creator of the work.
Section 106A specifies the rights of the author under VARA. Attribution is the right to have a work attributed to the artist. It is also the right to prevent the attribution to the artist of a work created by another, and the right to prevent the attribution to the artist of a work initially created by the artist but later distorted, mutilated or otherwise modified in a manner that is "prejudicial to this or her honor or reputation."
The right of integrity is the more important of these rights; it is the right to ensure that a work not be materially altered or defaced. The right of integrity is designed to protect both the artistic integrity of the creator and the physical integrity of the work of art. The rationale behind the integrity right is both to protect the artist's reputation and to preserve the work for posterity as an artifact of present culture. However, this is limited since the rights endure only for the life of the author. The integrity right is violated only if the artist's work is intentionally distorted, mutilated or otherwise modified, and only if such modification would be prejudicial to the artist's honor or reputation. The statute is silent as to what proof is required of prejudice to honor or reputation. The few courts that have addressed this issue since VARA was enacted have required that the work be one of “recognized stature” before any alterations can be found to be harmful to the artist’s reputation.
Libraries have been involved in VARA issues in a number of situations, primarily dealing with sculpture. When a sculpture has to be removed from its base to make it fit in a library space, the integrity of the work if affected. Libraries that have outdoor works of art will have to confront VARA when the sculpture requires repair or reconstruction. Libraries may also have to deal with paintings. Some libraries such as hospital libraries have murals on the wall. When such a library needs to attach shelving to the wall in order to stabilize it, the mural is defaced. The Act provides protection for art which is deemed irremovable, i.e., that which cannot be removed from a building without damage. Such art cannot be removed for the author's life unless the building owner and the artist enter into an agreement declaring that the art may be removed. The Act required the establishment of a Visual Arts Registry for the filing of statements and documentation relating to works of visual art incorporated into buildings. In other words, this is a recognition of the special problems with attribution and integrity when the work is incorporated into a building. Section 113 of the Act was amended by adding a new subsection (d) which provides that moral rights protection does not apply and the removal may proceed where (1) the owner of the building makes a diligent, good faith effort to notify the artist in writing of the pending removal and is unsuccessful and (2) the owner notifies the artist in writing but the artist fails to respond within 90 days. The purpose of the registry is to benefit artists seeking to protect their rights and to assist owners in locating those artists.
It is unclear how the digital age affect will works under the VARA because the most common art forms that use digital technology are not covered since they do not meet the definition of visual art under the Act because they will not be signed limited editions. It is possible that VARA will be amended in the future to accommodate similar protection for digital works of art.