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September Issue 2002
LEGAL Q & A - for the Arts
by Edward Fenno, Copyright Attorney
Question: I created a sculpture of a fully nude man and sold it a few years ago. Recently, I noticed it in someone's garden. Like a proud father, I went to look at my work, but then realized that it had been changed - the genitalia had been smoothed over to become something of a mound. Is this type of distortion of someone's work legal? Can another artist change my work?
Answer: In selected cases, and yours may be one of them, the original artist ("author") may have the right to prevent others from distorting, mutilating, misrepresenting or even destroying his (or her) work, even after both the work and any copyright in it have been sold.
Many European countries have long recognized artists' personal or "moral" rights in their works of art. Among these rights are the rights of "integrity" (the right to prevent distortion or mutilation of an author's work) and "attribution" (the right of the author to be recognized as the author). These "moral" rights (termed "droit moral" in Europe) spring from a belief that an artist in the process of creation injects his or her spirit into the work. Moral rights are intended to protect the honor and reputation of the artist.
In 1990, Congress enacted the "Visual
Artists' Rights Act" (the "Act") to provide protection
for artists' moral rights in selected categories of works of art
in the United States. The Act is limited in scope, protecting
only works of "visual art" that are created on or after
June 1, 1991. The Act defines works of "visual art"
to include only:
· Sculptures that exist in a single copy (original), or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author; and
· Photographs that are produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
Left out are such items as posters, maps, books, newspapers, technical drawings, models, motion pictures and other audiovisual works, data bases, and advertising or promotional materials. The intent is to protect "fine" art, rather than objects of utility or mass production.
Subject to "fair use" rights and other limitations, the Act provides the author of a work of visual art the right to:
· Prevent any intentional distortion,
mutilation, or other modification of that work which would be
prejudicial to his or her honor or reputation;
· Prevent any intentional or grossly negligent destruction of a work of recognized stature;
· Claim authorship of the work;
· Prevent the use of his or her name as the author of any work of visual art that (s)he did not create; and
· Prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work that would be prejudicial to his or her honor or reputation.
Note that modifications due to the passage of time or the inherent nature of the materials do not violate the author's rights. Nor do minor modifications from conservation efforts or public presentation. Thus, galleries and museums continue to have discretion to light, frame, hang and cover works of art.
Since moral rights are intended to protect the honor and reputation of the artist, the Act only protects the rights for the lifetime of the artist. Similarly, only the artist who creates the work has moral rights in the work under the Act, and the artist cannot sell or assign those rights. The artist may waive his or her rights, permitting a modification of his work, but the waiver must be in writing and must specify the modification proposed. Blanket waivers are not enforceable. In cases in which the work was created as a "work for hire" (i.e., the artist was an employee or under certain types of written commission agreement with the owner of the work), the Act does not protect the moral rights of the artist.
As a result of the Act's protection of moral rights, a prominent New York artist recently was permitted to maintain a law suit against a company that allegedly hired an inexperienced conservator to re-sculpt the face on the prominent artist's broken piece. Thus, art patrons and conservators should think twice before modifying recent works of fine art without the written permission of the original artist. In addition, even if the Visual Artist' Rights Act does not protect a particular work of art, an artist who still owns a copyright in his or her work may have other ways of preventing changes to or adaptations of his or her work.
Editor's note: Edward Fenno is an intellectual
property and media attorney with the law firm of Moore & Van
Allen. He represents a number of artists, as well as clients in
the publishing and technology industries. Fenno is a periodic
contributor to Carolina Arts on
legal issues for artists. He can be reached in Charleston, SC
at (843) 579-7040. This article is copyright * 2002 by Moore &
Van Allen, PLLC; published by permission.
Mailing Address: Carolina Arts, P.O. Drawer
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