The artist as brand: toward a trademark conception of moral rights.

• Author: Tang, Xiyin

NOTE CONTENTS INTRODUCTION I. A BRIEF MORAL RIGHTS PRIMER A. The Berne Convention and the Visual Artists Rights Act of 1990 B. Scholarly Reactions to the VARA Regime II. THE CONTINGENT ART OBJECT AND THE ARTIST AS BRAND A. Contemporary Art and the Cult of the Authentic B. The Artist as Brand: From "Reputational Externalities" to Consumer Confusion 1. Identity as Branding 2. The Contingent Art Object C. Authorship, Brand Building, and the Creation of Goodwill III. COMPARING MORAL RIGHTS AND TRADEMARK LAW A. Trademark Law and the Attenuation of the "First Sale Doctrine" B. Source Identification and Source Confusion C. Famous Artists, Famous Brands: A Brief Remark on Dilution IV. WHO'S AFRAID OF MORAL RIGHTS? A. Are There Alternatives? 1. Copyright and Its Limitations 2. Why Not Just Use Traditional Trademark Law? B. Can Moral Rights Advance the Public Interest? CONCLUSION INTRODUCTION

The Armory Show, the self-described "leading international contemporary and modern art fair and one of the most important annual art events in New York," comes to town once a year. (1) When it does, Manhattan's Piers 92 and 94 are transformed into a sort of art bazaar, replete with buyers, sellers, tastemakers, and those generally hoping to see and be seen. (2) There are fabulous parties, art-world celebrities, and art objects up for sale at six-digit prices. (3) It is, in short, the art world's version of New York Fashion Week--just one of many parallels between art and the luxury goods market that I hope to draw in this Note. (4) It is also another example of the type of money-driven spectacle that some art critics have denounced as commodifying what should resist commodification. Detractors claim the emphasis on real market value denigrates art, which should hold itself aloft from such petty realities as the economy, capitalism, and commodity fetishism. (5) We respond to such idealism with compassion and sympathy. The idea of the starving artist in pursuit of some greater truth, after all, has captivated the collective imagination even before the oft-circulated tale of Vincent van Gogh, his poverty, his posthumous fame, and that bloody ear (a perfect emblem of artistic madness and misunderstood genius). (6)

So here's a modern-day anecdote that might shatter such idealistic optimism. During the 2011 Armory Show, a popular British artist, whom I will call Artist X, came to town. When he arrived in New York, he ordered his assistant to fill a cardboard box with brown clothes. "What kind of brown clothes?" the assistant asked. "Any brown clothes," was the response. The assistant and his friend ran around the city's thrift shops for a few hours collecting brown clothes of all sorts--tops, sweaters, pants, hats. The total came up to around fifteen dollars. They loaded the clothes into a cardboard box. They delivered the box to Artist X. A few hours later, the "art piece" was sold for $40,000.

This story was relayed to me by the same assistant's friend who had collected the clothes, and yet I have almost resisted using it because of its hearsay (and heretical) character. But lore or not, the anecdote is powerful, for it manages to capture a number of head-shaking, difficult issues with the contemporary art world. The blasphemous idea that the artist didn't even lay a hand on the finished product; the unfair markup of art that took neither skill nor extensive labor to make; the pure object-ness of postmodern art that might even put Duchamp and his urinal (7) to shame; and the lack of comprehensibility behind it all--what greater truth was Artist X getting at with his box of brown clothes, really? After a while, one begins to suspect that perhaps there is no greater truth to contemporary art at all, and that the only truth is the artist having a laugh at everyone else's expense.

These issues are important because they have in some way either pervaded or been evaded by the dialogue about artists' moral rights, which have long existed in Europe but which the United States only brought into law two decades ago. The Visual Artists Rights Act of 1990, (8) or VARA, was only reluctantly passed to bring the United States into compliance with the Berne Convention; indeed, the United States resisted joining that international copyright convention in part because of its opposition to granting artists moral rights. (9) Perhaps for this reason, VARA--which protects only "visual art" (10)--has subsequently been denounced as "doctrinally inconsistent with U.S. copyright and property law," as threatening "economic investment in the arts and thus constrict[ing] artistic creativity," and as "limit[ing] editorial freedom and giv[ing] artists broad grants of power over purely aesthetic matters." (11) The legal debate surrounding VARA has tended to go one of two ways. Either art is somehow sacred and special, and so we need moral rights to express our societal belief in art as a manifestation of the innermost expression of an artist's soul; or art is a pure commodity object, much like a luxury good, and so we should rid ourselves of a special class of protection for it. (12)

This Note will argue, on the other hand, that it is precisely because art today has become a pure commodity object that we need moral rights to protect the artist's economic interests. It argues, in effect, that mere copyright protection for visual art is not enough, cloaking "fine art" objects (13) with a class of protection far less extensive than the wide plethora of legal remedies a trademark holder has under trademark law. Instead, a comparison of moral rights with trademark law will reveal that moral rights are (a) neither unique nor unprecedented in American intellectual property law and (b) highly economic in character. In undertaking this analysis, I hope to update the outdated justifications behind moral rights for the contemporary era of artist "factories" and assistant-made, rather than artist-made, products. This approach frees moral rights justifications from the classic personhood and anticommodification arguments that have undergirded them up to this day. (14) In this economic analysis, I shift the conversation from authors' pecuniary interests (15) to a broader focus on protecting the art market and its buyers via truthful source indication, drawing out parallels with trademark law's protection of consumers. As I will explain, the need to ensure accurate identification and proper display of an artist's work to both the buying and the viewing public has become even more dire in the age of what art historian Martha Buskirk calls the "contingent object"--the category of highly context-sensitive artworks that are easily fabricated based off of an artist's plans. (16)

Part I will examine the new, post-1960s industrial art object and the accompanying concept of the artist as brand, or as someone who carefully crafts a corporate image much like trademark holders do with their brand names. I then go on to argue in Part II that the moral rights regime under VARA in fact bears many striking resemblances to trademark law. Finally, the last Part will discuss the inadequacy of a pure copyright regime for fine arts given the new state of the contingent art object.

I want to make clear that this Note in no way seeks to argue that this current trend of art-as-commodity-object, or artist-as-businessman, is preferable to a world in which the inspired artist sets out to connote some greater meaning or truth. In many ways I think (and others would likely agree) that this development is lamentable. But that is a different paper, for a different world that is not our own--a paper for the idealist rather than for the realist. In this Note, I remain only the latter.

1. A BRIEF MORAL RIGHTS PRIMER

   1. The Berne Convention and the Visual Artists Rights Act of 1990

      The Convention for the Protection of Literary and Artistic Works, or the Berne Convention, (17) has been referred to as the "world's most important copyright convention." (18) While the multilateral treaty was signed in Berne, Switzerland on September 9, 1886, the United States refused to ratify it for about a century, partly because the United States lacked the incentive to protect its own proprietary interests abroad when it was mainly concerned with importing copyrighted goods, rather than exporting its own. (19) However, by the mid-1980s, "losses to U.S. copyright proprietors from piracy abroad had mounted into the billions of dollars" as the United States became one of the principal exporters of copyrighted goods in the world. (20) With that shift, the U.S. attitude toward the Berne Convention--and toward securing foreign compliance for American intellectual property abroad--began to change. Finally, in 1988, after almost one hundred years of debate, the United States joined the Convention. (21)

      Specifically, as Congress acknowledged, "[w]hile the Convention is the premier international copyright convention, consensus over United States adherence was slow to develop ... because of debate over the requirements of Article 6bis [of the Convention]. The principal question was whether that article required the United States to enact new laws protecting moral rights." (22) A debate ensued over whether a patchwork of existing federal and state laws, both statutory and common, were sufficient to comply with the moral rights requirements of Berne. (23) The enactment of the Visual Artists Rights Act signaled an attempt to create a unified federal system of moral rights laws adhering to the basic requirements of Berne, though it is by no means as comprehensive as many European systems. (24)

      The American moral rights regime as enacted under VARA applies only to a work of "visual art," (25) defined as "a painting, drawing, print, or sculpture, existing in a single copy, [or] in a limited edition of 200 copies or fewer," or "a still photographic image produced for exhibition purposes only, existing in a single copy ... or in a...