CAN IT BE that the government of the United States, despite the likes of Jesse Helms, truly believes in the inherent value of art? The signals are mixed. Although, after very public debate, NEA funding was cut back, in late November 1990, without public ceremony, Congress enacted the “Visual Artists Rights Act of 1990” (known as “VARA”), which incorporated into existing federal copyright law a provision that deals with the moral rights of visual artists. (California, New York, and nine other states already had their own moral-rights acts. To what extent these state laws will remain vital or be preempted by VARA is not yet clear.)
It is all a little confusing, since copyright is part of property law, while the doctrine of droit moral—that the “soul” of an artwork should not, or perhaps cannot, leave the control of the creator of the work—is arguably noneconomic in origin. But notions of moral right, like ideas about art, have changed over the decades. In the 1940s moral right was seen as antitotalitarian because it protected individual creation and artistic integrity. Now advocates couch their arguments in more businesslike terms, merging economic with moral interests.
After a history of false starts in America, in March 1989 the country joined as a signer of the international Berne Convention, which protects literary and artistic works (and includes a moral-rights clause). The United States agreed to sign the convention based on assurances from experts that an adequate mixture of Berne-compatible domestic moral-rights protection already existed. But as one scholar suggests, the U.S. signed not because domestic moral-rights law is strong but because the degree of compliance with the treaty’s moral-rights clause among Berne nations is weak.1
Now, a year and a half after joining Berne, the U.S., taking its moral-rights commitment farther, has passed new domestic moral-rights legislation that applies to works of visual art. As enacted, the doctrine represents a compromise, after years of controversy among competing interest groups. Many visual and audiovisual works that are copyrightable have been intentionally left out of moral-rights coverage through VARA’s careful limitation of the definition of the “work of visual art” to cover only original paintings and drawings, and sculpture, prints, and noncommercial photographs in editions of up to 200 signed and numbered copies. Thus, if Leonardo da Vinci made the Mona Lisa in 1992, and Marcel Duchamp painted a mustache on a poster of it, Da Vinci could not sue Duchamp under VARA. But if Duchamp painted on Da Vinci’s original painting, then Da Vinci could sue in federal court to enforce his rights.
Not covered by VARA are works that cannot be copyrighted, works made for hire, and works that are part of the structure of a building, if the artist has consented to the installation. It is unclear how artworks commissioned as part of an architectural project will be defined.
The Congressional Record makes it clear that without this limited definition the measure would never have passed. Likewise the law omits, for political reasons, a resale royalty, or droit de suite, provision that advocates had hoped to include, although a feasibility study on resale royalties has been authorized.
The new section of federal copyright law, 106A, titled “Rights of Attribution and Integrity,” identifies the rights of the artist that endure even after the artwork and its copyright have been transferred to other owners: the rights of attribution, the right of the artist to claim or disclaim authorship; and integrity, the rights to prevent the intentional distortion or mutilation of a work if it would be “prejudicial to [the artist’s] honor or reputation” and to prevent the destruction of a “work of recognized stature.” Remedies for infringement of these rights are almost as broad as for copyright violation (they include injunctive relief, governmental impounding, money damages and profits, and/or costs and attorney’s fees, but no criminal penalties). Unlike copyright, however, which continues for 50 years after the death of the author, moral right for newly created works endures only for the author’s lifetime.
Underlying all arguments in favor of moral right, whether by artists, attorneys, or politicians, is the assumption that artists are somehow special, and that visual art is somehow distinguishable from marketplace products. Unlike the usual model, where A makes something, and once A sells it to B, it is permanently out of A’s control unless A contracted with B for continued rights, VARA’s moral-rights doctrine makes an exception for the visual artist. Under VARA, even after an artist chooses to sell a work and chooses to relinquish copyright, he or she retains legally recognized connection to the work, unlike a writer or a cabinetmaker. Is this paternalism on the part of the government, an attempt to protect the unworldly artist? Or is it that Congress believes that artists “have a parental prerogative, a moral right, over their [art]work”?2
The favorite example in Congress of the type of abuse that VARA is equipped to address is an advertisement, published worldwide a few years ago, that tempted readers to buy their “very own beautiful Picasso piece.” What the mail-order concern was selling, for $135 per square inch, were matted, framed one-inch bits of a chopped-up Picasso lithograph.3 The legislative history of VARA demonstrates the conviction among proponents of this legislation that such mutilation of original art should be controlled by federal copyright law.
There has been constant change in the definition of art, but it seems that the marketplace has proven more flexible than the law in accommodating these changes. The problem of law lagging behind art is not new. Over 60 years ago, nonrepresentational sculpture stymied the United States Customs Office, which allows works of “fine art” to be imported duty free. In 1928, Constantin Brancusi successfully challenged the Customs definition of fine art, expanding it to encompass his abstract Bird in Flight, which the Customs Office had taxed as a machine part. In the years that have followed, artists have attempted to do away not only with recognizable subject matter but with the object itself. Many have traced these ideas, of particular concern in Conceptualism and Minimalism, to Duchamp’s “delectation for the vanishing basis of the legitimate definition of the work of art in visual competence and manual skill alone.”4 In Conceptual art the work is often impermanent; with Minimal art the idea of the object is still important although spoken of as being “fabricated” or “realized” or “made” rather than unique and created by hand. Signed certificates accompany transfers of ownership of many of these pieces. It is necessary for the artist’s signature, and often copyright notice, to reside separately from these artworks, which, for that matter, may or may not exist in material form at the time the certificate changes hands. We may have left the object behind, but we have retained, even without it, the romance of the life-enhancing, transcendent idea and experience of creation. And our laws still reflect this traditional stance.
How the law has changed, at least as enacted in VARA, is in its emphasis, which is now less on the “moral” implications of moral right than on its economic permutations, even though moral right’s theoretical roots are (or were) noneconomic. It is important to note, in this regard, that VARA was appended to the Copyright Act of 1976, which defines the scope and distribution of economic rights in intellectual property. In a potentially disturbing development, VARA will allow an artist to waive in writing his or her moral right to a specific work of art. It is easy to imagine abuses of this right to waiver; additionally, the notion of waiver would seem to be in conflict with the theoretical underpinnings of an inalienable moral right. As a writer in the Washington Post put it, “‘Inalienable right’ has a noble ring, but actually it can be quite inconvenient. Economic rights can be waived or turned over to someone else or changed by agreement, but an inalienable right is unforgiving and forever.”5
So just how absolutely inalienable do we really want artists’ moral rights to be? The new federal law says we don’t want them to be inalienable, we just want them to be convenient. And pushing the question further, why make an exception to our society’s general reluctance to encourage special-status designations, with their inherent momentum against free-market forces and individual liberty? Most importantly, does the kind of “morality” that moral right represents belong in federal property law? Interestingly, this sense that something is wrong with the moral-rights doctrine as enacted is shared by copyright lawyers, who will be called upon to enforce these rights in federal court. The editors of a scholarly journal for the copyright bar, summing up their responses to VARA, said, “Viewed in .. . light [of the political compromises made], some of the legislation’s truly embarrassing drafting becomes understandable, if not still regretted.”6
VARA goes into effect this month, and no one is sure how it will be applied in the courts to traditional artworks, or, in particular, how it will be understood to apply to Conceptual and Minimal art, or other nontraditional artworks that exist in the mind of the artist. To quote from the movies (which are not covered by the new law), “Hold on, it’s going to be a bumpy ride.”7
Anne M.Carley is an arts management consultant and is completing her law degree at New York University. Amy Baker Sandback is a writer living in New York.
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NOTES
1. Edward Damich, quoted in Barbara Hoffman, “Legal Update: Moral Rights Doctrine and Berne,” College Art Association Newsletter 142, Summer 1989, p. 10.
2. Michael Kernan, “The Great Debate over Artists’ Rights,” Washington Post, 22 May 1988, (Sunday Show), p. F4.
3. Congressman Edward Markey, in 136 Congressional Record H 3111, H 3115, 5 June 1990.
4. Benjamin H. D. Buchloh, “From the Aesthetic of Administration to Institutional Critique (Some Aspects of Conceptual Art 1962-1969),” in L’Art Conceptuel, Une Perspective, exhibition catalogue, Paris: Musee d’Art Moderne de la Ville de Paris, 1989, p. 45.
5. Kernan, p. F5.
6. The Editors, “Amendments Review of Copyright Act,” Journal of the Copyright Society of the USA 374, December 1990, p. 466.
7. Margo Channing (Bette Davis), in Joseph L. Mankiewicz’s All About Eve, 1950, black and white film in 35 mm, 138 minutes.
— Anne M. Carley and Amy Baker Sandback