Using public disclosure as the vesting point for moral rights under the Visual Artists Rights Act.

AuthorBock, Elizabeth M.

In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is "created" under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents it to the public. This standard is more consistent with the history of moral rights. Additionally, public access is necessary to justify a treatment of art different from that of other types of property, and it is a more essential component of moral rights than an artist's feelings of connection to his work. Finally, the legislative intent behind the Visual Artists Rights Act and the reasoning in previous judicial decisions are more accurately reflected by a public disclosure standard. Utilizing "creation" as a vesting point for moral rights is not supported by the history of the Visual Artists Rights Act and will result in uncertainty and inconsistency in future decisions.

TABLE OF CONTENTS INTRODUCTION I. THE HISTORY Or MORAL RIGHTS II. THE JUSTIFICATIONS FOR MORAL RIGHTs A. The Connection of the Artist to his Work B. The Necessity of Public Access for Moral Rights III. VARA PROTECTIONS SHOULD VEST AT THE MOMENT OF PUBLIC DISclosure A. Disclosure Is Consistent with the Purpose and Text of VARA B. Disclosure Avoids the Problems of a "Creation" Standard CONCLUSION INTRODUCTION

Port Morris, New York, is home to cranes, smokestacks, and, behind one chain-link fence, five massive steel plates that are waiting to be assembled into a Richard Serra sculpture. (1) The pieces have been sitting there for several years, waiting for their owner to call for their delivery. (2) In the meantime, people climb over the cardboard and shopping carts surrounding the work to place magnets on the steel or just to get a closer look at it. (3) Mr. Serra's associates explained that the pieces "should not be considered a work of art at all, and certainly not a bona fide Serra sculpture.... [A] Serra is not a Serra until Mr. Serra says it is; this ... is a big hunk of metal behind a chain-link fence." (4) This strangely located sculpture raises the question of when a creation becomes a work of art.

This question was the central issue in the 2010 case Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel. (5) In 2005, the Massachusetts Museum of Contemporary Art ("MASS MoCA") entered into an agreement with Christoph Buchel, a Swiss visual artist. (6) Buchel was to construct a work entitled Training Ground for Democracy in the gallery space of the museum's Building 5. (7) The relationship between the two parties deteriorated and Buchel ultimately abandoned work on the project. (8) MASS MoCA attempted to show Buchel's unfinished work in an exhibit about how collaborative projects could go awry. (9) The museum sued Buchel in order to obtain a declaration allowing it to display the work, and Buchel filed a counterclaim to stop the exhibition of his unfinished piece. (10) The court was left with the question of when a work becomes art and therefore becomes eligible for protection under the federal Visual Artists Rights Act ("VARA").

Congress enacted VARA in 1990, (11) codifying a moral rights regime in the United States and granting visual artists rights apart from the economic ones provided by copyright. (12) VARA provides artists with three rights: attribution, integrity, and the ability to prevent destruction of works of recognized stature. (13) The statute fails to identify when a work becomes eligible for VARA protection, leaving the court in Buchel with a novel problem. The district court found that VARA did not cover unfinished works and determined that MASS MoCA could display Buchel's work. (14) On appeal, however, the First Circuit found that because VARA was part of the federal Copyright Act, (15) the definitions of that statute controlled. (16) Accordingly, the appellate court determined that since the Copyright Act "states that a work is created when it is fixed in a copy ... for the first time" and that "where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time," the work was sufficiently "created" when Buchel abandoned it. (17) The appellate court therefore concluded that Buchel's unfinished sculpture was entitled to protection under VARA. (18)

This Note argues that VARA protection should not be extended to unfinished works and that the definition of "creation" utilized by the Copyright Act is not an appropriate standard for determining when works are eligible for coverage under VARA. Instead, works should be entitled to VARA protection when the artist presents his work to the public. Part I of this Note examines the history of moral fights and argues that public access to art has always been an essential component of moral rights. Part II explains that public access is more important to the framework of moral rights than the artist's individual connection to his work. Thus it is the public's connection to a work of art that justifies art being treated differently than other property, and without public presentation there is no reason for art to be given preferential treatment. Part III revisits Buchel and argues that the First Circuit's decision in that case harms moral rights both conceptually and in practice. The Part argues that disclosure, not creation, should be the moment when moral fights attach to a work of art. This standard is more consistent with the underlying structure of moral rights and the legislative history of VARA.

  1. THE HISTORY OF MORAL RIGHTS

    This Part examines the historical development of moral rights and argues that they were initially fueled by a desire to protect the moment of public disclosure. VARA is based on the theory of moral rights, (19) which was developed in the nineteenth century (20) and was first internationally codified in 1928 in the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention"). (21) Moral rights theory developed as society began to view creative works as distinct from other property. The theory initially concerned the right of the artist to determine when his work could be viewed by the world. Moral rights then expanded to include other rights besides the ability of the author to decide when he had finished his work.

    Scholars began to develop a theory of moral rights in the nineteenth century. They originally focused on whether third parties could force authors to disclose their unpublished works and whether the work could be modified without the author's consent or published without his name attached. (22) These three concerns manifested themselves in what came to be termed the rights of disclosure, integrity, and attribution. The right of disclosure allows an artist to determine when his work is complete and can be shown to the world. (23) The right of integrity gives the artist the right to prevent others from modifying his work without his permission.24) Finally, the right of attribution-also known as the right of paternity or the right of authorship--gives the artist the right to have his name on his work and to prevent his name from appearing on something he did not create. (25) Prior to World War I, these rights manifested themselves in a variety of statutory provisions that varied by country and were not conceptually unified. (26)

    The evolution of moral rights--from a series of disconnected statutes, contractual provisions, and judicial decisions into a set of cohesive legal protections--occurred mainly as a result of theories articulated in Germany and France. Alfred Gierke developed the concept of Persgnlichkeitsrecht (right of personality) in Germany, (27) while Andre Morillot advocated for droit moral in France. (28) In an 1872 article, Morillot argued that creditors could not force the publication of a work during the author's lifetime, saying that only rights which could be valued in terms of money could be claimed by creditors. (29) Morillot drew a distinction between moral and financial rights, and redefined the right of disclosure from one based on the idea that unpublished works didn't yet exist legally--and therefore couldn't be claimed by creditors--to one more concerned with the author's reputation and personal investment in the work. (30)

    Morillot, attempting to develop a complete theory of moral rights, expanded his theory to encompass the rights of integrity and attribution. He argued that all of these rights should be "under the umbrella of droit moral" because each made "reference to the unifying principle that the author's personhood ... expressed in the work deserved respect." (31) Morillot's cohesive theory departed dramatically from the earlier understanding of moral rights as a "patchwork of ... default rules in publishing agreements." (32) His theory was not justified by arguing that an unpublished work didn't legally exist, but by reference to the author's decision to share the work with the world.

    Various European countries incorporated aspects of moral rights into their legal systems, and the addition of article 6bis added moral rights to the Berne Convention. (33) In 1928, the Italian administration placed moral rights on the agenda at the conference in Rome, and the Italian Copyright Act became the model for article 6bis of the Berne Convention. (34) However, the right of disclosure was dropped from the final text of article 6bis because of common-law countries' concerns that that right could not be reconciled with publishing agreements. (35) The theory...

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