In this digital ages, are we protecting tomorrow's "masterpieces"? Protection of the moral rights of the digital graphic artist.

• Author: Berlowe, Peter E.

"Technology, like art, is a soaring exercise of the human imagination. Art is the aesthetic ordering of experience to express meanings in symbolic terms, and the reordering of nature--the qualities of space and time--in new perceptual and material form. Art is an end in itself; its values are intrinsic. Technology is the instrumental ordering of human experience within logic of efficient means, and the direction of nature to use its powers for material gain. But art and technology are not separate realms walled off from each other. Art employs techne, but for its own ends. Techne, too is a form of art that bridges culture and social structure, and in the process reshapes both." (1)

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In Florida, where an original work of a digital graphic artist who is well-known and respected in his or her artistic community exists only on a floppy or compact disk and is later mutilated, distorted, published with misattribution to the artist, then destroyed, does the artist have a legal cause of action for a violation of his or her "moral rights"? To answer this question, it must be determined what moral rights are and if they extend to digital art. The supremacy clause of the U.S. Constitution requires that federal law be considered first. (2) Thus, after a brief explanation of what constitutes moral rights, this article examines the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. [section] 106(a), and how it applies to digital art. Next, the article considers the scope of VARA's protection and Florida laws that may provide artists additional rights not preempted by this federal law. In sum, this article shows why digital graphic art is entitled to protection under both federal and Florida law.

What Are Moral Rights?

"Moral rights" derive from a European concept called "droit moral." Essentially, an artist's moral rights are the rights of the artist to create a work, to display the work to the public in whatever form he or she chooses, to withhold the creation from the public, and to demand respect for his or her personality as the creator of a work. (3) This summary can be broken down further into specific categories of rights. Those rights are as follows: (4)

1) The right to create or not to create.

2) The right to disclose the work and to choose when to do so.

3) The right to withdraw the work from publication.

4) The right of attribution or claim to authorship and the right to disclaim authorship.

5) The right to freedom from excessive criticism.

6) The right to freedom from mutilation, destruction, or distortion of one's work (i.e., the integrity right).

These rights are different from those conferred by copyright law. Copyright law creates an economic interest in original works, which can be bought and sold. (5) Copyrights often extend beyond the life of the author. Moral rights, on the other hand, are inalienable from the author and last only for the duration of his or her life. (6)

VARA Protects Moral Rights and Applies to Digital Art

VARA is the result of the United States' accession in 1988 to the Berne Convention for the Protection of Literary and Artistic Works and became effective on June 1, 1991. (7) Describing the act, the Supreme Court noted that the purpose of VARA is to protect the moral rights of certain visual artists and stated that, "[VARA] is analogous to Article 6(b) of the Berne Convention for the Protection of Literary and Artistic Words, but its coverage is more limited." (8) Congress intended VARA's purpose to be limited to the preservation and protection of certain original works of art, (9) and only for the lifetime of the artist. (10) Thus, VARA is not as expansive in its protection as the European droit moral.

VARA protects original "works of visual art." These are defined to include paintings (i.e., murals, works on canvas, and the like), drawings, printings (i.e., lithographs, serigraphs, and etchings), sculptures, and still photographs created for exhibition. (11) Excluded are "works for hire," (12) posters, maps, globes, charts, technical drawings, diagrams, models, applied art, (13) motion pictures, audio visual works, books, magazines, newspapers, periodicals, data bases, electronic information services, electronic publications and similar publications, merchandising items, advertising, promotional, descriptive, covering, packaging materials, and containers. (14) Multiples of works are included so long as they exist in signed, numbered, limited editions of no more than 200. (15) The works protected by VARA are narrower in scope than those protected by copyright law.

Courts confronting avant-garde artists may have difficulty in determining whether a work is covered by VARA, yet VARA's legislative history is unambiguous when it states that courts are expected to use both "common sense" and "generally accepted standards of the artistic community" to determine whether the act protects a particular work. (16) "Artists may work in a variety of media, and use any number of materials in creating their works. Therefore, whether a particular work falls within the definition should not depend on the medium or materials used." (17)

Consider the language in VARA and the plain and ordinary meanings of "painting" and "drawing." A painting is a "work produced through the art of painting." (18) "[P]aint" means "to apply color, pigment, or paint, to apply with a movement resembling that used in painting, and to produce in lines and colors on a surface by applying pigment." (19) "Drawing" is "the art or technique of representing an object or outlining a figure, plan, or sketch by means of lines," (20) and the verb "draw" is defined as "to produce a likeness or representation of by making lines on a surface."...