bility are issues of law subject to independent review. Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, 517 (7th Cir.2009).
A. Kelley’s Moral-Rights Claim Under the Visual Artists Rights Act of 1990
- 1. A brief history of moral rights
That artists have certain “moral rights” in their work is a doctrine long recognized in civil-law countries but only recently imported into the United States. Moral rights are generally grouped into two categories: rights of attribution and rights of integrity. “Rights of attribution” generally include the artist’s right to be recognized as the author of his work, to publish anonymously and pseudonymously, to prevent attribution of his name to works he did not create, and to prevent his work from being attributed to other artists. Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir.1995) (citing Raplh E. Lerner & Judith Bresler, Art Law 419–20 (1989)). “Rights of integrity” include the artist’s right to prevent the modification, mutilation, or distortion of his work, and in some cases (if the work is of recognized stature), to prevent its destruction. Id. at 81–82 (citing Art Law at 420–21).
Originating in nineteenth-century France, moral rights—le droit moral[1]—are understood as rights inhering in the artist’s personality, transcending property and contract rights and existing independently of the artist’s economic interest in his work. See 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8D.01[A] (2010); 5 William F. Patry, Patry on Copyright §§ 16:1, 16:3 (2010); John Henry Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1023, 1023–28 (1976). American copyright law, on the other hand, protects the economic interests of artists; Article I of the Constitution authorizes Congress “To Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. 1, § 8, cl. 8. Unlike other intellectual-property rights, moral rights are unrelated to the artist’s pecuniary interests and are grounded in philosophical ideas about the intrinsic nature and cultural value of art rather than natural-property or utility justifications.[2] See Carter, 71 F.3d at 81 (describing moral rights as “rights of a spiritual, non-economic and personal nature [that] … spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality, as well as the integrity of the work, should therefore be protected and preserved”). VARA introduced a limited version of this European doctrine into American law, but it is not an easy fit.[3]
- ↑ The use of the French singular “connotes an indivisible package of rights, as distinguished from the plural ‘moral rights,’ reflective of the current American concept of divisibility.” 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 8D.01[A] n. 4 (2010).
- ↑ For different views on the theoretical foundations of moral-rights doctrine, see Charles Cronin, Dead on the Vine: Living and Conceptual Art and VARA, 12 Vand. J. Ent. & Tech. L. 209, 215–18 (2010); Amy M. Adler, Against Moral Rights, 97 Calif. L.Rev. 263, 266–71 (2009); Roberta Rosenthal Kwall, Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul, 81 Notre Dame L.Rev. 1945, 1976–83 (2006); Burton Ong, Why Moral Rights Matter: Recognizing the Intrinsic Value of Integrity Rights, 26 Colum. J.L. & Arts 297, 299–301 (2003); and J.H. Merryman, The Public Interest in Cultural Property, 77 Calif. L.Rev. 339 (1989).
- ↑ For economic and pragmatic analysis of moral-rights doctrine, see William M. Landes & Richard A. Posner, The Economic Structure of Intellectual Property Law, Ch. 10, “Moral Rights and the Visual Artists Rights Act,”
