49 Pages Posted: 17 Feb 2012
Date Written: February 15, 2012
This Article offers a novel account of the theoretical foundations of American “Moral Rights” laws in intellectual property, laws which give artists the right to prevent purchasers of their works from altering those works, even after the purchase is complete, if the artist disapproves of the alterations. Conventional accounts of these laws’ foundations rely either on economic incentives or on creators’ “rights of personality.” Examination of the central provisions of both federal and state moral rights laws, however, reveals the implausibility of both those accounts: the central provisions that the laws actually contain are incompatible with what we would expect to find if the traditional accounts were correct, and no mere variant of the traditional accounts is likely to be plausible. Instead, these laws are best understood as resting upon a moral duty of respect for artworks’ creative excellence. Such an account both flows naturally from broader American cultural practices concerning respect for excellence and succeeds, where the other accounts failed, in providing a coherent explanation for the central provisions that we in fact observe in American moral rights laws. The Article further explains why these moral rights protections are given only to visual artists and not to creators of other works, and it shows how this analysis can inform debates about expanding creators’ legal rights of attribution. The Article also draws upon the considerable similarities between visual art and other products of human creativity to highlight the broader challenge that its analysis poses to the traditional, purely economic, understanding of the foundations of American intellectual property law more generally.
Keywords: intellectual property, moral rights, visual art, respect, VARA, Visual Artists Rights Act
Suggested Citation: Suggested Citation
Lee, Brian A., Making Sense of 'Moral Rights' in Intellectual Property (February 15, 2012). Temple Law Review, Vol. 84, p. 71, 2011; Brooklyn Law School, Legal Studies Paper No. 261. Available at SSRN: https://ssrn.com/abstract=2005753