Creative Destruction: Copyright's Fair Use Doctrine and the Moral Right of Integrity

Abstract

This paper explores the role of copyright’s fair use doctrine as a limit on the moral right of integrity. The moral right of integrity gives an author the right to prevent any distortion, modification, or mutilation of their work that prejudices their honor or reputation. Actions that have been found to violate an author’s moral right of integrity include, for instance, altering a mural by painting clothing over nude figures, selling separated panels of a single work of art, and displaying sculptures with holiday ribbons. At the same time, copyright’s fair use doctrine allows follow-on creators to transform original works by altering the original work with new expression, meaning or message. While the federal Visual Artists Rights Act of 1990 (VARA) includes language explicitly making the right of integrity “[s]ubject to” copyright’s fair use doctrine under Section 107, there have been no decisions in the U.S. interpreting how the doctrine might apply to a moral right of integrity claim. The lack of case law interpreting how courts might balance an author’s moral right of integrity with the public’s rights to expression is particularly troubling in light of the potential expansion of moral rights in the U.S. If moral rights are to be expanded, most interest- or industry-groups and commentators agree that those rights must be subject to fair use. However, without any guidance from courts, and with commentators and legislative history doubting the compatibility of fair use with the right of integrity, how can the U.S. expand moral rights with the assumption that fair use would provide the proper balance between authors’ rights and the public’s rights? This paper illustrates different contexts in visual art where a follow-on creator distorts, mutilates, or modifies an author’s work in order to make an artistic, social, or political statement, and how the doctrine of fair use might limit the moral right of integrity in those contexts. It argues that copyright’s fair use doctrine can serve as a limitation on an author’s moral right of integrity, and the four fair use factors in Section 107 may be used to balance the author’s right of integrity with the public’s rights, to find fair use where a follow-on creator modifies, distorts, or mutilates an author’s work to transform the work and give the work new meaning.

Keywords: copyright, fair use, moral rights, right of integrity, art law