⚖️Art Law and Ethics Unit 4 – Moral Rights and Artist's Rights

What Are Moral Rights?

• Moral rights protect the non-economic interests of artists in their work
• Stem from the idea that an artist's creation is an extension of their personality and identity
• Exist independently from the economic rights of copyright ownership
• Remain with the artist even if the artwork or copyright is sold or transferred
• Generally cannot be waived or assigned to others
• Protect the integrity of the work and the artist's reputation
• Vary in scope and duration depending on the country and jurisdiction

Historical Background

• Concept of moral rights originated in Europe during the 19th century
• First recognized in France in the 1870s as "droit moral" (moral right)
• Developed in response to the growing commercialization of art and the need to protect artists' interests
• Spread to other European countries, such as Germany and Italy, in the early 20th century
• Included in the Berne Convention for the Protection of Literary and Artistic Works in 1928
  • Berne Convention is an international agreement on copyright protection
  • Requires member countries to recognize moral rights in their national laws
• Adopted more slowly in common law countries like the United States and United Kingdom

Key Principles of Moral Rights

• Right of attribution (also known as the right of paternity)
  • The right to be recognized as the creator of the work
  • Includes the right to be identified by name or pseudonym
  • Protects against misattribution or omission of credit
• Right of integrity
  • The right to protect the work from distortion, mutilation, or modification
  • Protects against changes that would be prejudicial to the artist's honor or reputation
  • Applies even after the artist has sold the work or transferred the copyright
• Right of disclosure (also known as the right of divulgation)
  • The right to decide when and how the work is made public
  • Allows the artist to control the first publication or exhibition of the work
• Right of withdrawal (also known as the right of retraction)
  • The right to withdraw the work from public circulation
  • Rarely recognized and subject to various conditions and limitations

Types of Moral Rights

• Right of attribution
  • The right to be identified as the creator of the work
  • Includes the right to use a pseudonym or remain anonymous
• Right of integrity
  • The right to prevent distortion, mutilation, or modification of the work
  • Protects against changes that would harm the artist's reputation
• Right of disclosure
  • The right to decide when the work is ready for public release
  • Allows the artist to control the timing and manner of publication
• Right of withdrawal
  • The right to remove the work from public circulation
  • Often limited and subject to compensation for owners of the work
• Droit de suite (resale royalty right)
  • The right to receive a percentage of the resale price of the work
  • Recognized in some countries as a way to benefit artists and their heirs
• Right to prevent excessive criticism
  • The right to protect against criticism that goes beyond fair comment
  • Rarely recognized and controversial due to potential conflicts with free speech

Moral Rights in Different Countries

• France
  • Has the most extensive moral rights protection
  • Moral rights are perpetual, inalienable, and cannot be waived
• Germany
  • Moral rights are protected under the Copyright Act
  • Right of attribution and right of integrity are recognized
• Italy
  • Moral rights are protected under the Copyright Law
  • Includes the right of attribution, integrity, and withdrawal
• United States
  • Limited moral rights protection under the Visual Artists Rights Act (VARA) of 1990
  • Applies only to certain types of visual art (paintings, sculptures, photographs)
  • Right of attribution and right of integrity are recognized for the life of the artist
• United Kingdom
  • Moral rights are protected under the Copyright, Designs and Patents Act 1988
  • Right of attribution and right of integrity are recognized
  • Can be waived by the artist in writing

Artists' Rights Beyond Moral Rights

• Copyright
  • Exclusive rights to reproduce, distribute, display, and create derivative works
  • Can be transferred or licensed to others
• Right of publicity
  • The right to control the commercial use of one's name, image, or likeness
  • Protects against unauthorized endorsements or merchandising
• Trademark rights
  • Protection for distinctive names, logos, or symbols associated with the artist or their work
  • Prevents others from using similar marks that may cause confusion
• Contract rights
  • Rights and obligations set forth in agreements between artists and galleries, collectors, or publishers
  • Can include provisions on attribution, integrity, and resale royalties

Famous Cases and Controversies

• Richard Serra's "Tilted Arc" (1981)
  • Large-scale sculpture removed from Federal Plaza in New York City after public controversy
  • Serra unsuccessfully sued the U.S. government, arguing the removal violated his moral rights
• Cady Noland's "Log Cabin" (1990)
  • Artist disavowed the work after the owner restored it without her consent
  • Noland invoked her right of integrity under VARA
• Robert Rauschenberg's "Canyon" (1959)
  • Artwork incorporating a stuffed bald eagle became subject to legal disputes
  • Federal laws prohibit the sale or transfer of bald eagle parts, complicating the work's ownership and exhibition
• Shepard Fairey's "Hope" poster (2008)
  • Iconic image of Barack Obama based on a photograph by the Associated Press
  • Led to copyright infringement lawsuit and questions about fair use and transformative works

Practical Implications for Artists

• Understanding moral rights is crucial for artists to protect their interests and legacy
• Artists should be aware of the specific moral rights recognized in their country or jurisdiction
• When selling or licensing artwork, artists should consider including provisions on attribution and integrity in contracts
• Artists may need to register their works or take other steps to enforce their moral rights
• Collaborating with legal professionals can help artists navigate complex moral rights issues
• Estate planning is important to ensure the continued protection of moral rights after the artist's death
• Artists should document their creative process and intentions to support future moral rights claims
• Engaging with the art community and advocating for stronger moral rights protection can benefit all artists