Rethinking the compatibility of moral rights and fair use

Washington and Lee Law Review, Winter 1997 by Dane S Ciolino

Dane S. Ciolino'

In 1990, Congress amended the Copyright Act to recognize limited federal moral rights of integrity and attribution. Under this legislation, American visual artists can prevent others from misattributing their works of art and from altering such works under certain circumstances. These moral rights, however, are expressly limited by copyright's fair-use doctrine, a doctrine that permits the otherwise unauthorized use of a copyrighted work for socially desirable purposes such as criticism, comment, news reporting, teaching, research, or parody. This Article argues that the fair-use doctrine is inherently incompatible with federal moral rights. Particularly, federal moral rights and fair use affect different types of property; federal moral rights and fair use relate to different types of rights; and federal moral rights and fair use are supported by different moral justifications. For these reasons and others, this Article calls for courts to decline Congress's statutory invitation to apply the fairuse doctrine as a limitation on artists' federal moral rights.

L Introduction

The moral-rights doctrine preserves for artists limited rights in their works, even after such works are transferred to others. Although moral rights vary among the jurisdictions that recognize them, these rights typically include the continuing right to prevent alterations and misattributions of an artist's work. For example, if Leonardo da Vinci were alive today, the moral-rights doctrine would, under certain circumstances, give him the right to prevent the alteration of the Mona Lisa by a parodist who wished to paint a mustache on the depicted woman's face.' Moreover, Leonardo could enforce his moral rights regardless of whether he still owned the tangible painting or the copyright in the underlying work of authorship.

Developed in nineteenth-century France as an element of the artist's right of personality,2 moral rights traditionally protected an artist's work "his spiritual child" - as an outgrowth of his soul.3 Despite the sentimental appeal of the doctrine, moral rights met formidable resistance in the United States. Indeed, American courts initially refused to recognize any moral rights of artists. Indicative of this early hostility toward moral rights is the reported opinion of one New York court in 1949: "The conception of `moral rights' of authors so fully recognized and developed in civil law countries has not yet received acceptance in the law of the United States. No such right is referred to by legislation, court decisions or writers. "4 Over the years, however, the United States has retreated considerably from its early hard-nosed stance against moral rights. Perhaps the most notable evidence of this American retreat is the Visual Artists' Rights Act of 1990 (VARA).5 Although it is not expansive moral-rights legislation in the continental European tradition, VARA represents the first federal endorsement of moral rights6 inhering in an artist to protect his work after transferring its physical embodiment and its copyright to another. More particularly, VARA grants artists limited rights of integrity and attribution in their works of visual art.7 Hence, American artists now have the right (1) to claim authorship of their own works of visual art and to prevent the use of their names on works that they did not create (right of attribution)8 and (2) to prevent the "distortion, mutilation or modification" of their works under certain circumstances (right of integrity).9

Despite Congress's recognition of federal integrity and attribution rights, those rights are significantly more limited than their European counterparts. Among other limitations, federal moral rights are expressly subject to copyright's fair-use doctrine.10 Often termed an "equitable rule of reason,"" the fair-use doctrine-permits users of copyrighted works to engage in otherwise infringing conduct if their use of the copyrighted work is "fair" in light of all of the circumstances.l2 Uses favored by the fair-use doctrine include those for purposes of "criticism," "comment," "news reporting," "teaching," "research," and "parody."13 Courts and commentators have long struggled with the contours of the fair-use doctrine, one court branding it "the most troublesome in the whole law of copyright. "ia While the doctrine is troublesome in general, it is especially so in its application to moral rights. This is so because federal moral rights and the fair-use doctrine are manifestly incompatible for a number of doctrinal and practical reasons. First, fair use is a doctrine born of intellectual property law for the purpose of permitting certain nonrivalrous uses of intangible copyrighted works. But the federal moral rights adopted by Congress have little relationship to intellectual property at all; rather, they govern the relationship of artists with tangible property.'5 Second, fair use is a doctrine that permits certain uses of a work in preference to a copyright owner's otherwise valid copyright exclusive rights. But the federal moral rights adopted by Congress -- rights which fair use may trump - are rights of an entirely different order from copyright exclusive rights. Namely, federal moral rights are either "personal" rights or "personal property" rights, both of which arguably deserve greater respect (and hence less deference to fair use) than ordinary copyright exclusive rights.l6 Third, fair use is a doctrine justified largely by the consequentialist goal underlying copyright law in general: that of promoting the creation of new works of authorship. But federal moral rights exist for reasons that are decidedly nonconsequentialist -- namely, to promote artistic respect and artifact preservation. Applying fair use to limit federal moral rights would disregard these nonconsequentialist goals without furthering any of the consequentialist goals of the fair-use doctrine." Finally, and on a more practical level, the statutory factors that guide the fair-use analysis -- factors designed to further the economic goals of copyright -- simply do not work when applied to a "use" of tangible property protected by federal moral rights.ls