Wednesday, April 02, 2008

Moral rights for Artists, Authors and Sculptors [International]

Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. Rev. 1 (1997) provides a decent introduction to this topic. Also useful might be the module on Respect and Integrity in Professor William Fisher's mini-course Intellectual Property in Cyberspace 2000. The case of Napier's Distorted Barbie is fun.

Kant and Hegel provided the theoretical justification for an author's "moral right", but James MacNeill Whistler's refusal to provide Sir William Eden with a portrait of his wife and Eden's subsequent suit in 1989 provided the political impetus for France to pass legislation on the subject. France now has the strongest laws supporting the rights of artists. For Whistler's own take on this case, see Eden versus Whistler: The Baronet and the Butterfly. A Valentine with a Verdict, Paris and New York, 1899 (reprinted by Notable Trials Library, 1997) Call Number: FRA 996 WHI78 1997.

France recognizes four moral rights:

droit de divulgation, or right of disclosure;
the droit de repentir ou de retrait, or right to correct or withdraw works previously disclosed to the public;
the droit de paternite, or right of attribution, which includes
right against misattribution,
right against nonattributio,
right to publish anonymously or pseudonymously,
right to void a promise to publish anonymously or pseudonymously;
and the droit au respect de l'oeuvre, literally "the right to respect of the work," usually translated as the right of integrity.

The United States attempted to harmonize its copyright laws with those of European and other countries by joining the Berne Convention and enacting the Visual Artists Rights Act of 1990 (VARA). See especially 17 U.S.C. §§106, 106A, and 113. Cynthia Esworthy in the general counsel's office of the NEA provides a short introduction to US moral rights law in From Monty Python to Leona Helmsley: A Guide to the Visual Artists Rights Act. Check the sidebars as well. However, some assert that the US will have to expand its moral rights protections to achieve its alleged goal of harmonizing its intellectual property laws with those of the European Union. See Jowita Wysocka, Imposing Moral Rights on an Immoral System: An Analysis of the Further Legislative Reform Required for U.S. Compliance with the Berne Convention, Suffolk Journal of High Technology Law (Spring 2000).

Henry Hansmann & Marina Santilli, Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis, 26 J. Legal Stud. 95 (1997) Carter v. Helmsley-Spear, Inc., 71 F. 3d 77 (2d Cir. 1995).

The video excerpt showing the misuse of Frederick Hart's sculpture Ex Nihilo by Warner Bros. in the film The Devil's Advocate can be found here. This case used a copyright claim to settle a moral rights problem.

The destruction of Diego Rivera's mural Man at the Crossroads, commissioned for Rockefeller Center but offensive to the patrons because of its inclusion of the image of Lenin, predated any effective moral rights statute. The PBS site Culture Shock has other interesting examples.
Moral rights apply to a somewhat expanded list of the traditional fine arts. Alfred Stieglitz is now an artist but Giorgio Armani is not. See Christine Magdo (JD '00), Protecting Works of Fashion from Design Piracy (2000). See also Matthew Rimmer, Crystal Palaces: Copyright Law And Public Architecture. 14(1) Bond Law Review (2002).

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