Irina Tarsis , Center for Art Law Inc; Moral Rights of the Artist (Humans Only): an Updated US Perspective
"I Defining and codifying moral rights
Moral rights, or droit moral (having originated in France), describe rights of creators in their artistic work that are not necessarily pecuniary, yet still integral to and arise from the idea that an artist's very being is included in the work that they create. Recognition and evolution of visual artists' rights in the United States have been slow to develop, and the scope of moral rights enacted in the United States is limited.
Typically, moral rights are neither alienable nor waivable; they last for the duration of an artist's lifetime and can survive for the benefit and discretion of an artist's estate even after the original work is finished or changes ownership through the stream of public commerce.18 The basic moral rights are as follows:
- right of attribution or authorship, which entitles the artist to:
- be recognised by name for their work or permit the work to be published anonymously;
- prevent a wrong person being named as the author of their work;
- prevent having their name be associated with a work that they did not create;
- decline having their name be associated with a work that has been modified or distorted in such a way as having the authorship remain with the work is prejudicial to the artist; and
- remove their name from the work in cases of mutilation or the artist's belief that the work is no longer true to its original creation; and
- right of integrity, which prevents tampering or modifying the artwork without the artist's consent even after ownership in the artwork transfers;
- right of disclosure, which concerns the artist's reputation and provides that the artist has discretion to decide when and how their work can be made public; and
- resale royalty rights, which is a semi-economic right assuring that an artist may continue to benefit financially from commercial appreciation of their work in the secondary market by receiving a percentage of the sale proceeds.
These rights are enumerated in the Berne Convention for the Protection of Literary and Artistic Works (the Convention) under Articles 6 bis19 and 14 ter.20 While the US is a signatory to the Convention,21 according to the US Berne Convention Implementation Act of 1988, the Convention's acts and protocols are not self-executing under the US Constitution, and they must be implemented through US legislation...
ii Space, the final frontier: back to the future
Statutorily, moral rights of artists in the United States are poorly protected and narrowly enforced; some seemingly substantive claims are dismissed on procedure failure to state a claim,114 as res judicata115 or on industrial design grounds.116 As soon as US artists die, the moral rights evaporate altogether. The cavalier rather than chivalrous attitude towards the vision and the will of the artist persists as tastes and emphasis change. Consider, for example, museums deaccessioning art that was once donated directly by an artist.117 Similarly, consider the trend of covering up or removing the New Deal-Era murals from schools and court houses,118 which is evocative of the problem posed by Serra's Tilted Arc in the 1980s. Until the US Supreme Court reviews a VARA case, or Congress amends the Copyright Law to include a resale royalty provision, artists and their advocates remain limited by the available moral rights protections, and they have to be creative in using public and private law to protect artists' rights. For digital artists, the ability to enforce some of their moral rights is becoming easier, at least on the screen.
As protest art and street art become mainstream, and AI-generated art attracts more fans, in real life and in the metaverse,119 moral rights of artists in the United States are still protected by a patchwork of case law, contracts and state and federal regulations. During the 'Some Like it Digital: Meet Me in the Metaverse' webinars hosted by the Center for Art Law in 2022,120 a guest speaker mentioned that the constitutional law for the metaverse is, or will be, the Copyright Law, for better or worse.
Going forward, will there be more artists expressing themselves in the other verse? In space, outside the boundaries of planet Earth, where their moral right will still need to be protected, for now only against other humans?
In Thaler, District of Columbia Court asked 'Must … originator be a human being to claim copyright protection?' and answered 'yes'; with a footnote: 'The issue of whether non-human sentient beings may be covered by “person” in the Copyright Act is only “fun conjecture for academics”',121 though useful in illuminating the purposes and limits of copyright protection as AI is increasingly employed. Nonetheless, delving into this debate is an unnecessary detour because “[t]he day sentient refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the least of our problems”.122 With human-generated art being sent into space, though, the subject of protecting artists' rights (freedom of expression, attribution, etc) will increasingly abut against international treaties controlling the parameters of sending objects into and outside of our solar system, onto other planets and for display on space stations."
