Moral Rights: Diagnosis and Rehabilitation

• Published date: 01 September 2009
• Date: 01 September 2009
• Author: Robert C. Bird
• DOI: http://doi.org/10.1111/j.1744-1714.2009.01082.x

Moral Rights: Diagnosis and

Rehabilitation

Robert C. Bird

n

I. INTRODUCTION

After Pope Julius II commissioned Michelangelo to paint the Sistine Cha-

pel, the impatient pontiff could not wait to see progress. When Michelan-

gelo refused Julius’ request to view sketches, Julius, the ‘‘warrior pope’’F

aptly named because of his naked ambition in foreign affairsFbribed Mi-

chelangelo’s assistants to give him access to the unf‌inished work. Michel-

angelo learned of the plan and hid in the chapel. When Julius entered the

chapel, Michelangelo threw some planks down to bar the way and insisted

that the meddlesome pontiff be ejected. When the Pope continued to an-

noy Michelangelo about his progress, Michelangelo answered that he

would be f‌inished when he satisf‌ied his own artistic sensibilities. While

the successor to Peter the Apostle would pay for the f‌inished artwork, only

the artist would decide when that masterpiece was f‌inished. Michelangelo,

asserting a veritable ‘‘artistic declaration of independence,’’ claimed a right

in his art that not even the one who f‌inanced the project would curtail.

1

Five hundred years later, scholars are still writing about the modern

version of Michelangelo’s papal confrontation, what we now call a moral

right. Moral rights collectively refer to the rights held by an artist that

permit control over the use and dissemination of his or her work inde-

pendent of any economic payment for ownership, commission, or license.

r2009, Copyright the Author

Journal compilation r2009, Academy of Legal Studies in Business

407

American Business Law Journal

Volume 46, Issue 3, 407–452, Fall 2009

n

Assistant Professor and Ackerman Scholar, Department of Marketing and Law, School of

Business, University of Connecticut. My thanks go to Dan Cahoy, Lucille Ponte, and Ann M.

Olaza

´bal for their invaluable insights. All errors and omissions are my own.

1

Dan Rosen, Artists’ Moral Rights: A European Evolution, An American Revolution,2CARDOZOARTS

&ENT. L.J. 155, 171–72 (1983).

Moral rights defend the personal and reputational value of the work and

the artist from abuse long after the artist’s work has been completed.

Without moral rights protection artworks could be placed in jeop-

ardy. In 1986, an Australian newspaper advertisement offered readers the

opportunity to buy their very own framed Picasso.

2

The advertisement

promoted this offer as the ‘‘most original and exciting . . . in the history of

Australian art.’’

3

In fact, the promoters had purchased a single linocut of

‘‘Trois Femmes,’’ printed and signed by the artist in 1959.

4

How would

they sell a single artwork and satisfy the demand of thousands of readers?

They planned to slice the Picasso into 500 one-inch squares and sell each

framed square for $135.

5

At the time, one of the promoters predicted ‘‘[i]f

this thing takes off, we may buy other masters as well and give them the

chop.’’

6

Although the deliberate destruction of a Pablo Picasso linocut for a

quick prof‌it would horrify the art world, the destructive act might be legal

in the United States. Federal law may not protect a deceased artist’s work,

even a Picasso, from destruction by prof‌it-seeking entrepreneurs.

7

This lack of protection has not gone unnoticed. Scholarly research

has lamented the weakness of U.S. protection for artists and argued for

change.

8

The Visual Artists Rights Act of 1990 (VARA), the only moral

rights statute passed by Congress and a signif‌icant focus of this research,

has been critiqued as providing too little protection to too few artists.

9

2

Robert C. Bird & Lucille M. Ponte, Protecting Moral Rights in the United States and the United

Kingdom: Challenges and Opportunities Under the U.K.’s New Performances Regulations, 24 B.U.

INT’LL.J. 213, 278 (2006); Elizabeth Dillinger, Mutilating Picasso: The Case for Amending the Visual

Artists Rights Act to Provide Protection of Moral Rights After Death,75UMKCL.R

EV. 897, 923

(2007). See also Edward J. Markey, Congress, Taxes and the Arts; Let Artists Have a Fair Share of

Their Prof‌its, N.Y. TIMES, Dec. 20, 1987, available at http://query.nytimes.com/gst/fullpage.

html?res=9B0DE7DF103EF933A15751C1A961948260.

3

Dillinger, supra note 2, at 923.

4

Id.

5

Id.

6

Markey, supra note 2, at 2.

7

John Henry Merryman, The Moral Right of Maurice Utrillo,43AM.J.COMP.L.445, 453 (1995).

8

Roberta Rosenthal Kwall, ‘‘Author-Stories’’: Narrative’s Implications for Moral Rights and Copy-

right’s Joint Authorship Doctrine,75S.C

AL.L.REV.1, 22 (2001) (noting this trend).

9

E.g., Jane C. Ginsburg, The Right to Claim Authorship in U.S. Copyright and Trademarks Law,41

HOUS.L.REV.263, 300 (2004); Stuart Rebecca, A Work of Heart: A Proposal for a Revision of the

408 Vol. 46 / American Business Law Journal

Commentators also argue that VARA does not satisfy the requirements of

the Berne Convention for the Protection of Literary and Artistic Works, of

which the United States is a signatory.

10

The result is an emergent scholarly

commentary recommending the adopting of stronger protection of artists’

rights in the United States.

11

The United States has among the strongest intellectual property laws

in the world.

12

Why then does U.S. law offer such weak moral rights pro-

tection? The answer is not simply political apathy. Rather, it stems from a

long-standing perception that moral rights conf‌lict with fundamental cul-

tural, historical, and legal traditions of the United States.

The purpose of this article is to dispel, or at least dilute, this percep-

tion by demonstrating that moral rights are compatible with American le-

gal theory, simple to apply in practice, and function little differently than

our already established intellectual property laws. Part II brief‌ly intro-

duces the concept of moral rights and traces its history. Part III discusses

why moral rights have confronted such strong opposition in the United

States. Part IV examines the scope and application of VARA, the only stat-

ute that specif‌ically addresses moral rights in the United States. Part V

demonstrates how moral rights are compatible with American socio-legal

sensibilities, particularly the purposes of copyright and trademark law and

proof of infringement claims. Part VI provides recommendations for

judges and litigants in order to make proof in moral rights cases more

objective. It follows, then, that if moral rights can be seen as more har-

monious with existing law, courts should interpret them less restrictively

Visual Artists Rights Act of 1990 to Bring the United States Closer to International Standards,47SANTA

CLARA L. REV. 645 (2007).

10

E.g., Nenutzka C. Villamar, Comment, Carter v. Helmsley-Spear and the Visual Artists Rights

Act of 1990, 3 U. BALT.INTELL.PROP. L.J. 167, 168–69 (1995).

11

This interest did not always exist. Martin Roeder commented in 1940 that ‘‘[y]et despite the

importance of the doctrine of moral rights, it is amazing how little study has been accorded to

it in American literature.’’ Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of

Artists, Authors and Creators,53H

ARV.L.REV.554, 558 (1940). During the 1980s moral rights

emerged as an important topic when high-prof‌ile celebrities like Woody Allen sought to prevent

the colorization of black-and-white movies. Sheldon W. Halpern, Of Moral Right and Moral

Righteousness,1M

ARQ.INTELL.PROP.L.REV. 65, 66 (1997).

12

E.g., Maria Nelson et al., Counterfeit Pharmaceuticals: A Worldwide Problem,96TRADEMARK REP.

1068, 1074 (2006) (‘‘The United States has one of the strongest systems for intellectual property

protection in the world.’’).

2009 / Moral Rights 409