Destruction, the Rebirth of Art: Analyzing the Right of Integrity's Role in Modern Art

• Publication year: 2021

Destruction, The Rebirth of Art: Analyzing the Right of Integrity's Role in Modern Art

Connely Doizé
University of Georgia School of Law, cmd27050@uga.edu

Destruction, The Rebirth of Art: Analyzing the Right of Integrity's Role in Modern Art

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DESTRUCTION, THE REBIRTH OF ART: ANALYZING THE RIGHT OF INTEGRITY'S ROLE IN MODERN ART

Connely Doizé^*

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TABLE OF CONTENTS

I. INTRODUCTION...........................................................................................141

I. BACKGROUND.............................................................................................143

A. CREATIVE DESTRUCTION.................................................................143

1. Examples.......................................................................................144

B. LEGAL FRAMEWORK..........................................................................147

1. Common-Law Ownership of Property....................................147
2. Consumer Protection..................................................................148
3. State and Federal Legislation......................................................149

C. THE VISUAL ARTISTS RIGHTS ACT 1990........................................ 153

1. The Right of Attribution.............................................................153
2. The Right of Integrity..................................................................154

D. INTERNATIONAL AGREEMENTS AND THE BERNE CONVENTION ...............................................................................................................155
E. INTEGRITY...........................................................................................157

1. The French "droit moral."..........................................................157
2. U.S. Approach Moral Rights......................................................158

III. ANALYSIS......................................................................................................160

A. WITH NO FOUNDATION THE HOUSE WILL FALL........................160

1. A Quick Art History Lesson......................................................161
2. 21st Century Art Movements.....................................................163

B. AMPLE PROTECTION AFFORDED....................................................164

1. Trademark Protection.................................................................164
2. Protection under Contract..........................................................165
3. Tort Action...................................................................................167

C. DUE PROCESS VIOLATION................................................................167
D. INTEGRITY EXCEEDS THE SCOPE OF CONGRESSIONAL POWER169
E. FIRST AMENDMENT IMPLICATIONS................................................170

IV. CONCLUSION................................................................................................172

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I. INTRODUCTION

An owner generally dictates the future of their property through conditions, special limitations, trusts, and future interests.¹ Issues arise, however, when property owners exert unlimited posthumous control over such property to the detriment of its heirs. As a result, courts have regularly limited the posthumous control of an estate through the Rule Against Perpetuities² and other similar doctrines.

A recent movement towards the expansion of moral rights for artists poses similar concerns of control. The Visual Artist's Rights Act³ ("VARA"), grants artists certain moral rights, defined as:

rights of a spiritual, non-economic and personal nature that exist independently of an artist's copyright in his or her work and spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved.⁴

This expansion of law threatens to increase the rights of a creator without any thought to the interests of a subsequent owner.

In this Note, I argue that through VARA, Congress has haphazardly created new rights without concern for traditional United States legal doctrine. Further, these rights extend past the intended scope of intellectual property law and restrict the liberty and creativity of any subsequent owner-artist. Specifically, I am concerned about the creation of a legal tradition that subverts one artist's feelings over another artist's creative liberty.⁵ As it stands, 17 U.S.C. § 106A creates a moral right of integrity⁶ that is adverse to both traditional ownership doctrines and the Constitution. The circumstances Congress sought to remedy through VARA have been adequately addressed through remedial doctrines in contract, tort, and the breadth of intellectual property law.

The crux of my argument lies in constitutional concerns regarding both due process under the Fifth Amendment and freedom of expression under the First

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Amendment. Specifically, I seek to show the grave implications that arise under VARA when an artist seeks to creatively destroy a work they own and unintentionally violates one's integrity. As a result, I call for an exemption to VARA for the destruction and creative rebirth of a work of art ("Creative Destruction"). I argue that destruction is a cornerstone of creativity, and any legislation limiting such creativity directly conflicts with the powers delegated to Congress in the Copyright and Patent Clause of the Constitution, in addition to both the First and Fifth Amendments.

First, I explain Creative Destruction and its place in art and creative development. Then, through a quick art history lesson, I show the underlying lines of destruction that flow through both artistic movements and works themselves. This section emphasizes the importance of destruction in the creative cycle and how the regulation of integrity may negatively affect it.

Next, I provide background on the relevant statutory and common law authorities, as well as an explanation of some legal principles discussed later in the Note. Also, I emphasize the strong public policy in favor of protecting destruction as a form of modern art. Finally, I close the section with a discussion of destruction's current role in both American and European art.

After developing the legal and social backgrounds concerning my argument, I begin my analysis with the consideration of remedial principles existing in law before VARA's enaction. These principles satisfy both constitutional and international concerns, while also providing protection specifically tailored to the United States.

Then, I will present an applied constitutional challenge showing that Congress acted outside of its scope through adopting the moral right of integrity. First, I explain how integrity poses a grave threat to a subsequent owner-artist's due process. Consequently, this also threatens to violate a subsequent owner-artist's First Amendment⁷ rights and ultimately contravenes the scope of the powers conferred in the Copyright Clause.⁸

Finally, I provide solutions advocating for the legal protection of destruction as a creative process. This involves a balancing of interests and the provision of an exemption for creative destruction. Also, the Visual Artists Rights Act must be updated to satisfy the requirements of Due Process. This can be done through conditioning action on its registration or the receipt of notice.

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II. BACKGROUND

A. CREATIVE DESTRUCTION

The term "Creative Destruction" originated in economics as a theory proffered by Joseph Schumpeter, a political economist.⁹ This theory maintains that the core of capitalist progression is the evolution and the continual revolution of goods from within.¹⁰ At its core, Creative Destruction seeks a sustainable path towards innovation and creation.¹¹ Further, some scholars argue that creative destruction could be one of the biggest opportunities for a business's success in the history of commerce.¹² In light of its relevance and acknowledgment in the economic community, the application of Creative Destruction to artwork and its consumer market is a reasonable conclusion.

A famous example of Creative Destruction and its application to art hangs in the San Francisco Museum of Art and is entitled "Erased de Kooning Drawing" by Robert Rauschenberg.¹³ As the title suggests, this piece was a Willem de Kooning sketch that had been erased by Rauschenberg over the period of a month.¹⁴

Rauschenberg's usual account of Erased de Kooning Drawing's origins begins with a simple challenge: he wanted to discover a way to make a drawing with an eraser. He had tried erasing one of his own drawings but found the results lacking. He became convinced that the only way to create a work of art through erasure would be to start with a drawing by an artist of universally recognized significance. His first and only choice was Willem de Kooning (1904-1997), a painter at the apex of

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his powers who had recently reached the highest echelons of the New York art world.¹⁵

Thankfully for Rauschenberg, when acquiring this sketch, he disclosed his intentions to de Kooning, to which de Kooning consented.¹⁶ As a result, he likely would not have a strong VARA suit for the destruction and infringement on his right of moral integrity.¹⁷

1. Examples.

The contemporary art movement brings forth a great opportunity for an interest in destructive art. One of the most prominent current forms of such destruction is the graffiti art movement.¹⁸ This movement "has its origins in 1970s New York, when young people began to use spray paint and other materials to create images on buildings."¹⁹ At its core, the graffiti art movement is disruptive to public spaces, and in most cases, illegal.²⁰ This disruption, however, is not a threat to the public and oftentimes poses opportunities for necessary social dialogue and change in communities.²¹

An example of graffiti art is...