Art Law and Ethics

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

Moral 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


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© 2024 Fiveable Inc. All rights reserved.
AP® and SAT® are trademarks registered by the College Board, which is not affiliated with, and does not endorse this website.
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