Do Artists Have Moral Rights?

GENERAL

Research Abstract
Do Artists Have Moral Rights?

For many years, European civil law jurisdictions, most notably in France, have protected the Moral rights or droit moral, of visual artists. The concept of moral rights protects the rights of a creator of a work of visual art to claim or disclaim authorship of his or her work (the right of paternity or droit la paternite, and the right of disavowal); to decide when to publish or reveal the work to the public (the right of disclosure or droit de divulgation); to withdraw the work from publication or make modifications to the work (the right of withdrawal or modification or droit de retrait or de repentir); and to prevent the defacement or alteration of the work (the right of integrity or droit au respect de l'oeuvre). More than sixty nations protect artists' moral rights.

American courts, while often sympathizing with artists whose moral rights have been violated, have been extremely reluctant to create moral rights as a matter of common law. Traditionally, the law in the has focused on the protection of the artist's economic, rather than personal rights. The concept of moral rights was almost universally characterized by American courts as inconsistent with American societal norms. As a result of the failure of the courts to recognize any degree of protection for moral rights in the , several states have enacted statutes offering artists some protection for their moral rights.

On December 1, 1990, Congress passed the Visual Artists Rights Act of 1990. The Act became effective June l, 1991. This Act encompasses many rights found in the French droit moral, as well as rights specified by various state statutes. The Visual Artist Rights Act explicitly preempts similar law provisions. (p. 284-285)

Part I of this article discusses the protections offered to artists' moral rights by state moral rights statutes, with particular emphasis on the California and New York statutes. Part II sets forth and discusses the specific provisions of the Visual Artists Rights Act of 1990 and attempts to ascertain the congressional intent behind some of the more nebulous provisions of the Act. Part III discusses the probable preemptive effect of the Visual Artists Rights Act on analogous state law provisions. (p. 285)

CONTENTS
I. State Moral Rights Statutes. 

The California Moral Rights Statute. 
     Protected subject matter. 
     Scope of the Artist's Rights. 
     Duration and Waiver of the Rights. 
     Special Provisions for Works of Art Incorporated Into
     Buildings. 
     Remedies. 
     Severability of Provisions. 

The New York Moral Rights Statute. 
     Protected subject matter. 
     Scope of the Artist's Rights. 
     Duration of the Rights. 
     Remedies.

II. The Visual Artists Rights Act of 1990. 

Protected subject matter. 
Scope of the Artist's Rights. 
Rights of Paternity and Disavowal. 
Right of Integrity. 
Exception for Reproductions. 
Special Rules for Works Incorporated into Buildings. 
Duration, Transfer, and Waiver of the Rights. 
Preemption of State Law.

III. The Preemption of State Statutes by the Visual Artists Rights Act of 1990.

Preemption Provisions of the Visual Artists Rights Act of 1990. 
Preemption of the California Statutes. 
Preemptions of the New York Statute. 

Conclusion. 
Notes.

BIBLIOGRAPHY

Report
Zuber, Joseph
December, 1991
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