All Study Guides Art Law and Ethics Unit 4
⚖️ Art Law and Ethics Unit 4 – Moral Rights and Artist's RightsMoral rights protect artists' non-economic interests in their work, safeguarding their reputation and the integrity of their creations. These rights, which include attribution and integrity, remain with the artist even after selling their work or copyright, reflecting the deep connection between artists and their art.
Originating in 19th century Europe, moral rights have spread globally, though their scope varies by country. In the US, limited protection exists under the Visual Artists Rights Act. Understanding these rights is crucial for artists to protect their interests and legacy in an increasingly complex art world.
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