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Published online by Cambridge University Press: 28 February 2019
In September 1986, Senator Edward Kennedy of Massachusetts sponsored a bill, “The Visual Artists Rights Amendment of 1986” which was not unlike many others that had been introduced into the United States Congress in recent years. ft proposed toexpand the Copyright Act of 1976 by granting artists certain control over their works beyond that currently secured under Copyright, contract or tort protections, as well as the ability to share in the proceeds of future (secondary) sales of the work. Although the bill never saw the light of legislative action, the issues it addressed are very much in the forefront of current art and law concerns.
* Excerpted quotes from “Can Artists Control the Work They've Sold?” New York Times, November 23, 1986 at Section E, page 26.Google Scholar
1. S.2796, 99th Cong., 2nd Sess. (1986).Google Scholar
2. The recent trend began with H.R.8261 (“Visual Artists Moral Rights Amendment Act of 1977”), 95th Cong., 1st Sess. (1977) introduced by Rep. Drinan of Massachusetts. Sen. Kennedy will probably introduce a similar version of S.2796 into the 100th Cong.Google Scholar
3. 17 U.S.C. s 101 et seq. (1976).Google Scholar
4. This doctrines will be fully discussed below. However, they are referred to as Continential or Civil law-based because France is credited with initially recognizing these concepts, first in its courts and then through code enactment. The Kennedy bill, however, is limited to recognized works of art and only referred to visual arts.Google Scholar
5. California has both concepts. New York, Massachusetts and Louisiana have moral rights-like statutes. However, Pennsylvania, Ohio, Illinois, Texas and Florida are among a number of states that have considered, but not enacted, such legislation.Google Scholar
6. Among them are: Algeria, Belgium, Brazil, Chile, Czechoslovakia, Ecuador, El Salvador, Italy, Japan, Luxembourg, Morocco, Peru, Philippines, Portugal, Senegal, Tunisia, Turkey, West Germany, Uruguay, & Yugoslavia as cited in Katz, “Copyright Preemption Under the Copyright Act of 1976….,” 47 Geo. Wash. L.R. 200, 203 (1978).Google Scholar
7. The Law on Literary & Artistic Property, Law No. 57-298 of March 11, 1957, Journal Officiel de la République Française 2723; Dalloz, Legislation 102.Google Scholar
8. Cass. Civ., March 14, 1900, D.P.1900-1-500.Google Scholar
9. App. Paris, March 6, 1931. D.P.1931.2.88.Google Scholar
10. Supra, note 7.Google Scholar
11. Id., Article 6.Google Scholar
12. Id.Google Scholar
13. Cour. Cass., July 6, 1965, Gaz.Pal. 1965.2.126.Google Scholar
14. For example, opera on film which has become very popular of late.Google Scholar
15. Examples of contractual arrangements that the French Courts have sanctioned will be found at Sarraute, “Current Theory on the Moral Rights of Authors…,” 16 Am. J. Comp. L. 465, 481 (1968).Google Scholar
16. Glucksman, “Economic Relief for the Fine Artist,” 1 Cardozo Arts & Enter. L.J. 115, 125 (1982).Google Scholar
17. Id. at 122.Google Scholar
18. Id. at 123. The Berne Convention will he discussed in general below. The article referred to is Art. 14bis.Google Scholar
Rosen, “Artists' Moral Rights: A European Evolution. An American Revolution,” 2 Carduzo Arts & Enter. L.J. 155, 181 (1983).Google Scholar
19. Id. at 179 and citing U.S. CONST. Art. I, s 8, cl. 8.Google Scholar
20. 17 U.S.C. s 101 et seq. (1976). The revision went into effect in 1978.Google Scholar
21. 17 U.S.C. s 102 (1976).Google Scholar
22. 17 U.S.C. 201 (d)(2) (1976).CrossRefGoogle Scholar
23. 17 U.S.C. 201 (b), 204 (a) (1976).Google Scholar
24. 17 U.S.C. 504 (b) (1976).Google Scholar
25. Note, “Author's Artistic Reputation Under the Copyright Act of 1976,” 92 Harv. L.R. 1490, 1505 (1979).Google Scholar
26. This involves falsely applying another's name to one's own work.Google Scholar
27. It is sometimes called “reverse passing off” because one's own name is falsely attributed to another's work.Google Scholar
28. 15 U.S.C. s 1125 (a) (1976).Google Scholar
29. 538 F.2d 14 (2nd Cir. 1976).Google Scholar
30. Judge Gurfein concurred because he found it difficult to apply section 43 (a) to cases involving artist's contract and common law copyrights; id. at 26-27. It must be kept in mind that the contact here specifically precluded editing.Google Scholar
31. Perm Film Enterprises v. T.W.G. Productions as discussed in Maslow, “Droit Moral and Sections 43 (a) and 44 (i) of the Lanham Art—A Judicial Shell Game?” 48 Geo. Wash. L.R. 377, 388 (1980).Google Scholar
32. U.S. CONST. art. VI provides, “This constitution and the laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land; and the judges of every State shall be bound thereby.”Google Scholar
33. U.R. Rep. No. 1476, 94 Cong. 2nd Sess. 1, 129.Google Scholar
34. 17 U.S.C. s 301 (b).Google Scholar
35. Scott & Cohen, “An Introduction to the New York Authorship Rights Act,” 8 Colum. J. of Art & the Law 369, 393 (1984).Google Scholar
36. California at Cal.Civ.Code ss 986–990 (West Supp. 1986); New York at N.Y. Arts & Cultural Affairs Law ss 11.01, 14.03 (McKinney Supp. 1986); Massachusetts at Mass. Gen. Laws Ann. ch. s 85S (West Supp. 1986); and Louisiana at 1986 La. Act 599.Google Scholar
37. National Historic Preservation Act, 16 U.S.C. 470 (a) (1976).Google Scholar
38. Gen, N.Y. Bus. Law s 288-p (McKinney Supp. 1986).CrossRefGoogle Scholar
39. Davis, “State Moral Rights Law and the Federal Copyright System,” 4 Cardozo Arts if Enter. L.J. 233, 238 (1985). While it is true that the court can rely upon the testimony of art experts, there is still a fear of elitism and rejection of the avant garde.Google Scholar
40. However, in New York since the right is so closely associated with the artist's reputation it would be up to the artist to object if an altered work was displayed without the artists consent/waiver. In the other jurisdictions which take a public interest view, one cannot help but wonder what would happen if the artist and the public were at odds. The public against a change, the artist wanting, or at least waiving a right to object to a change.Google Scholar
41. Supra note 1.Google Scholar
42. Supra note 39, at p. 259.Google Scholar
43. Ont' must still ask how artists will be encouraged to register in light of the experience that France has had (discussed supra note 16). Museums are rather concerned about the effect of a royalty on their receipt of donations, as well as their own deaccessioning or resale practices.Google Scholar
44. Convention Concerning the Creation for an International Union for Protection of Literary and Artistic Works, (September 9, 1886 at Berne, Switzerland) hereinafter referred to as the Berne Convention, The Convention has since been revised five times—1908, 1928, 1948, 1967 and 1971. This Convention has been ratified by 76 nations including the United Kingdom.Google Scholar
45. Id. Art. 6bis provides for both a paternity and an integrity right. Professor Nimmer in 19 Stan. L. Rev. 499, 518 (1976) suggests that lobbying efforts by the television and motion picture industries has fueled U.S. resistance to the Berne Convention.Google Scholar
46. DuBoff, Winter, Flacks, & Keplinger, “Out of UNESCO into Berne…,” 4 Cardozo Arts & Enter. L.J. 203, 203 (1985), notes 1 and 2.Google Scholar
47. It is important to note that the 1948 Universal Declaration of Human Rights, 217 U.N. GAOR, might be said to address moral rights of artists in Article 27, paragraph 2, as follows, “[e]veryone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” (U.N. Doc. a/810, 1948).Google Scholar
48. House Report, supra note 33.Google Scholar
49. S.2756 did have a number of provisions which would more equitably balance the interest of an artist whose work was incorporated into a building.Google Scholar
50. Many American artists and authors register their works in a Berne signatory country (frequently, Canada) to get “back door” Berne protections.Google Scholar