The Artist as Brand: Toward a Trademark Conception of Moral Rights

Abstract

The Visual Artists Rights Act of 1990 controversially recognized artists’ “moral rights” by protecting their work from alteration or destruction and by preventing the use of an artist’s name on a work he did not create. While moral rights are criticized as antithetical to the traditional economic framework of American intellectual property law, Professors Hansmann and Santilli have suggested that moral rights can be justified economically by vindicating an artist’s economic interests. This Paper, however, argues that VARA also benefits both the purchasing and viewing public, especially in an era of factory-made, assistant-produced, industrially-fabricated “object-like” art works. Specifically, moral rights, like trademark law, can reduce search costs, ensure truthful source identification, and increase efficiency in the art market. This comparison between trademark law and moral rights shows that the interests protected by VARA are neither unique nor unprecedented in American law, and highly economic in character. Thus, this Paper hopes to reframe the dialogue surrounding moral rights, shifting it away from the classic “personhood” or “anti-commodification” arguments that have undergirded the rhetoric up to this day.

Keywords: copyright, moral rights, art law, trademark, Berne, advertising