Against Moral Rights
California Law Review, Vol. 97, p. 263, 2009
36 Pages Posted: 22 Mar 2009 Last revised: 26 Aug 2016
Date Written: March 19, 2009
This article attacks the theoretical foundations of moral rights law. Drawing on contemporary art theory and practice, I focus on the moral right of integrity, called "the heart of the moral rights doctrine," which allows an artist to prevent modification and, in some cases, destruction of his artwork. My argument is that moral rights actually endanger art in the name of protecting it. To put it mildly, this is not a popular argument. Indeed, it challenges the key assumptions of virtually all moral rights scholarship: that moral rights are crucial for the flourishing of art and that, if anything, we need a more robust moral rights doctrine. But moral rights scholars have overlooked a dramatic problem: The conception of "art" embedded in moral rights law has become obsolete. In fact, as I will show, moral rights are premised on the precise conception of "art" that artists have been rebelling against for the last forty years. Moral rights law thus purports to protect art, but does so by enshrining a vision of art that is directly at odds with contemporary artistic practice. As a result, the law is on a collision course with the very art it seeks to defend.
Part I offers a brief introduction to United States moral rights doctrine. Parts II and III set forth my claim that moral rights endanger art in the name of protecting it. Part II challenges the premise in moral rights law that the artist is the proper person in whom we should invest the power to enforce moral rights. Here I dispute the assumption in moral rights laws that there will be a harmony between an artist's interests and the public's interest in a work of art. Ultimately, I question the romantic assumptions about authorship and meaning embedded in moral rights law. In my view, these assumptions threaten to freeze the vitality of artistic discourse. In Part III, I argue that moral rights law overlooks the deep artistic value in modifying, defacing and even destroying unique works of art. In Part IV, I challenge the fundamental premise of moral rights law: that art is a special category of objects meriting exceptional legal treatment.
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