A comparative law analysis of the retained rights of artists.

Author:Kowalski, W.W.

TABLE OF CONTENTS I. INTRODUCTION II. ORIGINS OF ARTISTS RIGHTS III. LEGAL FORMULATION OF ARTIST'S RIGHTS IV. ARTIST'S RETAINED RIGHTS VS. OWNER'S RIGHTS: CAN THEY BE RECONCILED? A. The Right of Paternity or Attribution B. The Right of Access C. The Rights of Disclosure (Divulgation) and of Withdrawal (Retrait) D. The Right to Exhibit E. The Right of Integrity F. Droit de Suite and Exercise of Copyright V. CONCLUSIONS I. INTRODUCTION

This Article presents an analytical and theoretical discussion of how an artist's artwork should be treated once it enters the global marketplace. Considering only the visual arts, the answer is short and simple: this Author believes that all, or at least the better-known legal systems, uphold the rights granted to the artist when the work was created. Consequently, the artist retains some rights not only as the artist's intellectual property, but also in its tangible manifestation, for example, sculpture or painting--traditionally called corpus mechanicum--even though he does not own this particular sculpture or painting anymore. This, however, is only a simple explanation: the remainder of the problem is decidedly more complex. Transfer of ownership of the art object to a third party results in the imposition of the artist's rights on the property rights of the new owner of the work. In law this phenomenon is not anything new or special: similar examples exist in other areas. For example, when there are adjoining pieces of real estate, property law differentiates between certain competing neighbors' rights. As is easily seen, not all rights are created equal; on the contrary, some rights are mutually exclusive, thus creating areas of potential conflict. The problem does not exist as long as the artist retains the ownership of his work and its material embodiment because he is the only owner of the both aspects of the work. The moment of sale is the beginning of a hypothetical conflict with the new owner. Sometimes the hypothetical conflict becomes very real and requires application to a court for resolution. The judgment in such a case depends on the legal system in question, but regardless of the jurisdiction, it is often very difficult to gauge the outcome of such a conflict. Courts are not uniform in their decisions and the legal systems vary widely--even in the increasingly global world. This diversity results from, on one hand, a different appraisal of interests which come into play, and on the other hand, the enduring nature of some philosophies about artists' work and the work's purposes. Understanding these differences is fundamental to understanding the status of an artist versus the status of his work. Therefore, it is appropriate to start with some historical background. It will be necessary to concentrate on so called "moral" and "moral-like" rights; only these rights can be retained by the artist after the art object has been sold or disposed in another way.


    A long time ago there were no ownership conflicts. Millions of people visit Egypt each year to gaze on the remains of pyramids, sculptures, and paintings and probably do not realize that the artists who created these monuments of art were treated as narrow-minded, anonymous craftsmen; they were respected, at most, as makers of these wonders, but not as their creators. (1) Their work was seen as pure physical labor and, according to standards of the times, was disdained. It was difficult, therefore, to even think about artist-laborer rights.

    The other reason artistic work was held in such low esteem was attributable to the place occupied by art in the ancient world. Art was purely functional in character and was mostly used to show religious images or to be a tool for propaganda. In such circumstances the creator of art had to remain completely anonymous and had no artist's rights. His work did not express his thoughts or emotions, but rather merely showed his talent and dexterity. It is not surprising then, that artworks remained in the total control of those who commissioned them and could be used to advance the commissioner's current political or religious needs and, consequently, could be changed or destroyed if necessary. (2)

    The view of the artist as a physical laborer was not limited to Egypt: this perspective on the artist was also typical in Greece, Rome, and continued through to the Middle Ages. (3) The whole ancient world could not overcome the contradiction of scorning the laborer who created the work while praising the objects as beautiful art. (4) The creation of the art had no connection with the higher values of knowledge and education. Plutarchus stated: "No generous youth, from seeing the Zeus at Pisa (Olimpia), or the Hera at Argos, longs to be Pheidias or Polycleitus." (5) Seneca was even more blunt: "Paintings that depict gods are worshiped and people get on their knees before them ... but look down upon the artists who created them." (6) Despite appreciation for the greatest artists, the law did not forbid copying or changing the works, because ownership of the art was most important. To put it in today's terms, art was not perceived as an "intellectual creation" that could be distinguished from its embodiment.

    Writers, whose work was able to reach a wider audience because of contracts with publishers, were the first to perceive a problem. Cicero, in his letters, worried that his works would be published incorrectly. (7) Horatio was angry at changes to or unauthorized copies of his works, and Ovidius complained when works were published without the awareness or consent of their creators. (8) Martialis was the first to use the word "plagiarism." Authors' criticism of the ownership scheme continued into the Middle Ages. For example, in the introduction to the well-known Sachsenspiegel code, Elke von Repkow reminded his readers of the need to prevent distortion of the work. (9)

    The situation began to change in the Renaissance, even though many of the era's artists began as craftsman's apprentices. Leon Battista Alberti, trying to prove the scientific origin of art, claimed that art originated in science because knowledge of proportion and theory of perspective were part of mathematics. (10) Leonardo da Vinci added that painting stood even higher than science because science was objective and art was connected to one person and his inborn abilities. (11) The consequences of such revolutionary changes were that artists' sense of dignity grew, and they freed themselves from complete dependence on their employers and started independent initiatives. This paved the way to the idea of genius and to an appreciation of a work of art as a creation of the individual over tradition, science, or rule.

    This shift of priority from work to its creator did not, however, change the artist's legal situation with regards to ownership. Despite repeated attempts, Albrecht Durer was not able to prevent other artists from making and selling copies of his engravings. (12) Durer's widow was ultimately successful in getting an order from the Nurnberg town council that forbade the use of Durer's signature on copies of his artwork. (13) Michaelangelo's fresco, The Final Judgment, commissioned by Pope Julius II della Rovere and painted in the Sistine Chapel from 1536-1542, was subsequently "amended" by Danielle da Volterra in 1553 during the pontificate of Pope Pius IV. (14) The painter covered some exposed body parts on the fresco. It was only recently that these "cover-ups" were erased during the large conservation effort undertaken by Pope John Paul II some years ago. (15) Still, the image of Christ remains with da Volterra's censorship "additions".

    The eighteenth century brought slow changes. Artists, regardless of their individual styles, shared a profound awareness of the significance of their art and its mission in the world. (16) William Hogarth taught morality by painting a series titled The Rake's Progress and created the illustrations Gin Lane and Beer Street. (17) Fussli shocked the art world when, in 1783, he exhibited The Nightmare at the Royal Academy. (18) The artists believed that their art allowed one to discover the world, experience the present, and analyze and interpret the human being. Immanuel Kant interpreted this experience, which until then had been considered a mirror of reality, as a function of the artist's mind, "[h]is vision [being] 'an exertion of [his] will.'" (19) The Enlightenment artist became a modern man, a thinker--more than the skilled craftsman or a humble painter of the past. (20)

    Simultaneously, the enlightened artist's legal situation changed. The stimulus for the change was Locke's theory that man has the right to the fruit of his labor. (21) In Europe, Wilhelm von Humboldt noticed art's spiritual aspect, (22) which led Otto Friedrich von Gierke to observe that creative work was materialized in its results and that works of art were the reflections of their creator. (23) Consequently, the object of art could be treated as an emanation and "extension" of the artist's personality. (24) The common law system drew more practical conclusions from Locke's theory. It stipulated that in the process of sale and exchange of goods, the result of the creator's work could not be legally taken by other people, such as an employer; this represented a significant change from the old system where the work was automatically owned by the master. (25)


    Two approaches to Lockean theory gave rise to two different legal systems: copyright and droit d'auteur. (26) The first system considers the creator's connection to his creation to be a result of creative work that reflects the creator's personality and requires physical and intellectual effort. Therefore, copyright is a general category that recognizes both the property and personal rights of the creator. In the droit d'auteur system, the artist's personality is of...

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