A Call for the Expansion of the Visual Artists Rights Act

Photo by Erik Witsoe on Unsplash

Sam Berten, Blog Editor, University of Cincinnati Law Review

I. Introduction

United States (“U.S.”) copyright law provides substantial protections against copyright infringement; however, the U.S. does not adequately protect an author’s moral rights.[1] Moral rights protect an author’s reputation and allow authors to control their attributions.[2] The European legal system has stronger moral rights protections than the U.S. legal system, and France provides the most robust moral rights protections. The U.S. must adapt and current moral rights legislation to adequately protect American authors and provide them the same rights other countries vest in their authors.

II. Background

Moral rights come from the French term droit moral, which translates to “moral rights.”[3] Moral rights are included in international copyright law, including Article 6bis of the Berne Convention (the leading international copyright treaty).[4] Article 6bis states:

(1) independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.[5]

Because moral rights are included in 6bis, all 178 Berne Convention member states, including the U.S., have to meet the minimum moral rights protections stated in the convention. This means that each Berne member must “provide for at least the moral rights of paternity and integrity.”[6]

The right of paternity (droit de paternite) is often referred to as “attribution” and it gives an author the power to recognize their works and protect their name from being attached to a work they did not create.[7]  The right of attribution is not included in U.S. copyright law, but artists in the U.S. have benefitted from its protections. For instance, American film directors that are unhappy with how their films are edited can have their name replaced with “Allen Smithee.”[8]

The right of integrity (droit au respect de l’integrite de l’oeuvre) allows authors to object or approve of any changes to their works.[9] For example, “manipulating a scanned photograph may be a violation of moral rights (the right of integrity) if prejudicial to the honor or reputation of the author of the photograph.”[10] Additionally, many countries disallow certain kinds of changes. France and Belgium forbid any alternation not approved by the artist.[11] Germany, Denmark, and Italy, on the other hand, only disallow changes that affect the artist’s reputation or honor, consistent with Article 6bis.[12]

Some countries go beyond Article 6bis’s minimum requirements (the rights of integrity and attribution) and include the rights of repenting and disclosure. The right of repenting (withdrawal; droit de repentir) allows artists to remove a work from the public if it no longer reflects their interests.[13] For instance, under Italian Copyright Law, authors may remove the work from the market “for serious moral reasons . . . which include ethical, intellectual, political and religious reasons, and also such cases where the work is in contrast with the changed personality of the author.”[14] France and Germany have adopted the right or repentance, but this right is controversial because it “subordinates the public interest to the self-interest of individual authors.”[15]

The right of disclosure (droit de divulgation) allows an artist to choose when and how their works appear.[16] For instance, Charles Camoin, a French painter, threw away one of his works after cutting it apart and then discovered it had been reconstructed and put up for auction.[17] Camoin sued for the return of the work and damages, and the court held that he had renounced his physical claim to the work.[18] The court also held that Camoin’s moral right of disclosure still existed, and Camoin had the right to control if his work appeared in front of the public or not.[19]

These four rights are the foundation for moral rights claims; however, moral rights are nuanced in every country.[20] Berne Convention member states have a lot of discretion when it comes to implementing Article 6bis.[21] In France, for example, moral rights are perpetual and are not severed at the author’s death.[22] This means that heirs can posthumously invoke the author’s moral rights.[23] This perpetual protection, along with the stalwart protection of all four moral rights, makes France one of the strongest moral rights protectors in the European system.[24]

The U.S., on the other hand, is more restrictive. In 1989, the U.S. joined the Berne Convention and shortly after ratified the Visual Artists Rights Act of 1990 (“VARA”).[25] VARA expands the rights granted to American authors by adding the minimum requirements from Article 6bis of the Berne Convention, the moral rights of attribution and integrity.[26] VARA provides that an author who has created a visual work has the right to claim authorship of that work, prevent the use of their name for any work that they did not create, and/or prevent the use of their name as a creator of a work of art if it has been distorted, mutilated, or modified in a way that would be “prejudicial to his or her honor or reputation.”[27] Additionally, an author:

(2) shall have the right to 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 which would be prejudicial to his or her honor or reputation; and

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.[28]

But, these rights are only extended to visual works of art. Under Section 101 of the Copyright code, a work of visual art includes “a painting, drawing, print or sculpture . . . or (2) a still photographic image produced for exhibition purposes only.”[29] A work of visual art does not include, “any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical . . . .”[30] Any works made for hire, or merchandise or promotional items, or any works not subject to copyright protection are also excluded.[31]

In 2017, the U.S. Copyright Office (“USCO”) undertook “‘a public study on moral rights for authors, specifically the rights of attribution and integrity.’”[32] This study examined whether the U.S. should expand moral rights protection.[33] On April 23, 2019, the USCO published its report, stating that “moral rights and contract law is ‘generally working well and should not be changed.’ At the current time, ‘there is no need for the creation of a blanket moral rights statute.’”[34] The report recommended three changes to VARA:

The first proposed change would clarify that VARA’s exclusion for “commercial art” is limited to artworks both created pursuant to a contract and intended for commercial use. The second proposed change would add language clarifying how courts should interpret the “recognized stature” requirement, requiring courts to consult a broad range of sources. The third proposed change would provide that no joint author could waive another joint author’s moral rights under VARA without the written consent of each affected author. These changes, taken together, would improve significantly the usefulness of VARA to protect artists’ attribution and integrity interests―addressing some of the limitations that have hampered successful VARA claims without expanding VARA’s scope beyond the sorts of works that Congress sought to protect.[35]

This report serves as a roadmap for Congress if Congress wishes to strengthen or streamline the U.S. moral rights framework.[36]

Additionally, U.S. courts have ruled on VARA claims. In Cohen v. G & M Realty L.P., colloquially called “5Pointz,” the Federal District Court for the Eastern District of New York held that the defendants had violated VARA and awarded multi-million dollar damages for copyright infringement.[37] 5Pointz was a compound known for the graffiti that covered its walls until the owner decided to destroy the compound in 2013.[38] Senior District Judge Block found the “Defendant liable for 45 out of 49 works of art [that were destroyed], stating that ‘given the abject nature of Wolkoff’s willful conduct, the Court awards the maximum statutory damages under VARA for each of the 45 works of art wrongfully and willfully destroyed.’”[39] Judge Block awarded the maximum statutory damages to the artists, $150,000 for each of the 45 works, for a sum of $6,750,000.[40] The Court did not award any actual damages because “‘the plaintiffs failed to establish a reliable market value for their works’ and that ‘the gain realized by Wolkoff [the owner] and his companies is best addressed in calculating an award under the statutory damages factors.’”[41]

III. Analysis

There is a distinct tension between the French and American approaches to moral rights. In France, “there is an attitude about protecting culture that seems to transcend plain legal logic . . . as French moral rights seem to operate antithetically to basic tenets of protecting the liberty of free market [sic] negotiations and upholding bargained-for exchanges.”[42] Meanwhile, “the notions of a free market may be too strongly entrenched in U.S. law to give way to an adoption of moral rights similar to the French.”[43]

Thus, there is a cultural reason for the differences between the French and American moral rights system. Because of this cultural difference, substantial changes to VARA may be difficult. However, some expansion is necessary.

For instance, VARA must expand its definition of a visual work of art. Movies and audiovisual productions can be mutated, just like a painting or any of the ‘approved’ forms of visual art. “Th[is] exemption was no accident. Before the enactment of the law, lobbies representing artists and producers [lobbied in D.C.] . . . [i]n the end, studios won the battle with the contention that ‘moral rights impeded the efficient exploitation of works of authorship and that this would discourage the investment in creation.’”[44] While the rights of attribution and integrity were implicitly granted in Gillian v. American Broadcasting Companies, Inc., there are still no codified rights for motion pictures (or music videos or songs, for that matter).[45] However, a unique threat to motion pictures and audiovisual materials exists now that did not exist in 1990 when VARA was written – deepfakes.

A deepfake is a new form of artificial intelligence (“AI”) created through a deep learning method called a “generative adversarial network” or “GAN” or through an AI encoder.[46] The GAN system creates realistic images of nonexistent people, which are then added into the ‘real’ video or image, while an AI encoder allows someone to swap an image from one source into another.[47] And there is plenty of evidence that deepfakes are here to stay. In January 2019, there were 7,964 deepfake videos online, and nine months later “that figure had jumped to 14,678.”[48]

This makes the expansion of VARA all the more critical because with the continual expansion of AI there is a huge quantity of authors who will not be allowed to raise claims under VARA if their work is manipulated or shown without their permission. Even without the threat of AI, many musical authors, such as Taylor Swift, have struggled to protect their works from being altered or produced without their consent.

Additionally, Congress should push for the three recommendations from the U.S. Copyright Office report, at a minimum, because those would at least clarify VARA and add some further protections to VARA. Finally, while “5Pointz” was a successful case, the limitations on who has standing to raise a VARA claim significantly limits the efficacy of VARA. Likewise, the success of “5Pointz” may convince lawmakers that VARA is fine as is, which could hinder VARA expansion.

IV. Conclusion

In light of the many changes brought by AI, and the stark contrasts between French and American law, the U.S. needs to adapt VARA. VARA was ratified two decades ago and the art world has changed in significant ways since the nineties. Additionally, the exclusion of motion pictures and audiovisual materials because of lobbyists shows that there was a question back in 1990 as to whether motion pictures and audiovisual materials were art forms. Now, Congress needs to see the other side of the argument and expand protections to all forms of artwork. The coming decade will raise new issues as technology continues to adapt, so technological growth should bring legal growth. It is time that Congress takes an in-depth look at VARA and expands the definition of works of visual art.  

[1] “Author” is a term of art specifically used in copyright statutes. It is a blanket term for artists, writers, etc. This term does not merely pertain to novelists or what might colloquially be called an “author.”

[2] Moral Rights in U.S. Copyright Law, Copyrightlaws.com (Jan. 10, 2020), https://www.copyrightlaws.com/moral-rights-in-u-s-copyright-law/.

[3] Peter Baldwin, The Copyright Wars 28 (Princeton Univ. Press 2014).

[4] Moral Rights, supra note 2.

[5] Id.

[6] Moral Rights, supra note 2.

[7] Baldwin, supra note 3, at 31.

[8] Id. at 32. Film directors have also used the name ‘Alan Smithee’ which was likely a moniker created by the Directors Guild of America; see also Alison Cooper, Who is Alan Smithee? HowStuffWorks.Com (Sept. 12, 2014), https://entertainment.howstuffworks.com/alan-smithee.htm.   

[9] Baldwin, supra note 3, at 32.

[10] Moral Rights, supra note 2.

[11] Baldwin, supra note 3, at 32.

[12] Id.

[13] Id. at 34.

[14] Moral Rights, Società Italiana degli Autori ed Editori  (2020), https://www.siae.it/en/diritto-dautore/moral-rights/moral-rights#:~:text=Right%20of%20repentance,for%20serious%20moral%20reasons%20(art.&text=This%20right%20shall%20also%20apply,works%20derived%20from%20the%20original.

[15] Patrick Masiyakurima, The Trouble with Moral Rights,68(3) Modern L. Rev. 411, 424 (2005); Baldwin, supra note 3, at 35.

[16] Baldwin, supra note 3, at 30; Calvin D. Peeler, From the Providence of Kings to Copyrighted Things (and French Moral Rights), 9(2) Ind. Int’l. & Com. L. Rev. 423, 427 (1999).

[17] Baldwin, supra note 3, at 30.

[18] Id.

[19] Id.

[20] Id.

[21] United States Copyright Office, Authors, Attribution, and Integrity: Examining Moral Rights in the United States  15 (2019).

[22] Baldwin, supra note 3, at 37.

[23] Id. at 39.

[24] Id. at 5.

[25] The Visual Artists Rights Act,17 U.S.C. §106A (1990); United States Copyright Office, supra note 21, at 7.

[26] Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212, 215 (E.D.N.Y. 2013).

[27] 17 U.S.C. §106A.

[28] Id.

[29] Copyright Definitions, 17 U.S.C. §101. (2010).

[30] Id.

[31] Id.

[32] Marley Nelson, Moral Rights in the United States, The Ohio State University Copyright Corner (July 21, 2017), https://library.osu.edu/site/copyright/2017/07/21/moral-rights-in-the-united-states/.

[33] Moral Rights, supra note 2.

[34] Id.

[35] United States Copyright Office, supra note 21, at 5.

[36] Id. at 6.

[37] Lise Berichel, Around the Block Ruling in 5Pointz, The Center for Art Law (Apr. 10, 2018), https://itsartlaw.org/2018/04/10/around-the-block-ruling-in-5pointz/.

[38] Id.

[39] Id.

[40] Cohen v. G & M Realty L.P., 988 F. Supp. 2d 212, 421, 447 (E.D.N.Y. 2013).

[41] Lise Berichel, supra note 37.

[42] Calvin D. Peeler, supra note 16, at 452-453.

[43] Id. at 455.

[44] Julia Mas-Guindal, The Motion Picture Industry: Critical Issues Concerning Moral Rights and Authorship, Harv. J. L. & Tech. (Dec. 31, 2011), https://jolt.law.harvard.edu/digest/the-motion-picture-industry-critical-issues-concerning-moral-rights-and-authorship.

[45] Id.

[46] Rob Toews, Deepfakes Are Going to Wreak Havoc on Society. We are Not Prepared., Forbes (May 25, 2020), https://www.forbes.com/sites/robtoews/2020/05/25/deepfakes-are-going-to-wreak-havoc-on-society-we-are-not-prepared/#205025197494.

[47] Ian Sample, What are deepfakes – and how can you spot them?, The Guardian (Jan. 13, 2020), https://www.theguardian.com/technology/2020/jan/13/what-are-deepfakes-and-how-can-you-spot-them.

[48] Id.


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