Authors in Disguise: Why the Visual Artists Rights Act Got it Wrong
27 Pages Posted: 28 Apr 2007 Last revised: 23 May 2012
Moral rights protection exists to recognize authorship autonomy by safeguarding the author's meaning and message. Despite the fact that all authors owe a debt to the past, the authorship construct as we know it today embodies the idea of crafting a work so that it embodies the author's personal stamp of autonomy. Notwithstanding the borrowing inherent in the authorship process, it is still the author who, on an individual or joint basis, composes the creative package.
When a work of authorship manifests a meaning and message specific to the author, the moral right of attribution safeguards the author's original conceptions. Attribution is a vital, and perhaps the most widely endorsed, component of authorship dignity. An author's choice of attribution is very much part of a work's meaning and message and as such, it plays a central role in communicating the essence of an author's work to her audience. Even anonymous or pseudonymous works can be seen as reflecting a branding choice that is a fundamental part of the author's meaning and message. When the author's attribution of choice is omitted without permission of the author, the original work is somehow incomplete. Attribution thus functions as a significant, and widely acknowledged, means of safeguarding the integrity of an author's text.
A large number of copyrighted works are produced outside the framework of an individual author whose identity is known to the public. Works created outside of the traditional authorship trope include those produced by authors who write anonymously or under a pseudonym, works for hire, and even collective works. The relationship between moral rights and works created by authors in disguise is problematic because if the primary objective of moral rights is to safeguard the meaning and message of an author's work, it would seem as though the true author's identity should be publicly known. Yet for the types of works discussed in this Article, this knowledge is not readily available. This Article explores these difficulties as a general matter, with particular focus on the failure of the Visual Artists Rights Act (VARA) to incorporate explicit protection for anonymous and pseudonymous works and its exclusion of works made for hire from the scope of its coverage. VARA is the primary federal codification of moral rights in the United States, and thus its provisions represent the most significant embodiment of the doctrine in this country. I argue that in light of the theoretical predicate for moral rights, VARA's exclusions are misguided.
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