Against moral rights

California Law Review

Volumn 97, Issue 1, 2009, Pages 263-300

  Adler, Amy M ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 62149131364     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (223)

1. BRUNO LATOUR, ICONOCLASH: BEYOND THE IMAGE WARS IN SCIENCE RELIGION AND ART 21 (Bruno Latour & Peter Weibel eds., 2002).
2. DARIO GAMBONI, THE DESTRUCTION OF ART 257 (2004).
3. Christian Zervos, Conversations avec Picasso, CAHIERS D'ART, 1935, at 173, 175 (quote translated from the original French by Amy Adler).
4. Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (2000). For a discussion of various state statutes enacted prior to VARA, see infra note 12 and accompanying text.
5. For just a few examples of important scholarship on moral rights, see Roberta R. Kwall, Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul, 81 NOTRE DAME L. REV. 1945, 1986 (2006) [hereinafter Kwall, Inspiration]; Roberta R. Kwall, "Author-Stories": Narrative's Implications for Moral Rights and Copyright's Joint Authorship Doctrine, 75 S. CAL. L. REV. 1 (2001) (describing the urgent importance of moral rights as a way to encourage the creative process) [hereinafter Kwall, Author Stories]; Susan P. Liemer, Understanding Artists' Moral Rights: A Primer, 7 B.U. PUB. INT. L.J. 41, 41-42, 44 (1998); John H. Merryman, The Refrigerator of Bernard Buffet, 27 HASTINGS L.J. 1023 (1976) (pre-VARA article urging American adoption of moral rights). See generally JOSEPH SAX, PLAYING DARTS WITH A REMBRANDT: PUBLIC AND PRIVATE RIGHTS IN CULTURAL TREASURES (1999) (explaining the urgent public interest in preserving important cultural objects, including art).
6. See, e.g., Jane C. Ginsburg, Have Moral Rights Come of (Digital) Age in the United States?, 19 CARDOZO ARTS & ENT. L.J. 9 (2001); Kwall, Author Stories, supra note 5, at 22; Roberta R. Kwall, The Attribution Right in the United States: Caught in the Crossfire Between Copyright and Section 43(A), 11 WASH. L. REV. 985 (2002); Roberta R. Kwall, How Fine Art Fares Post VARA, 1 MARQ. INTELL. PROP. L. REV. 1 (1997) [hereinafter Kwall, How Fine Art Fares Post VARA]; Robert J. Sherman, Note, The Visual Artists Rights Act of 1990: American Artists Burned Again, 17 CARDOZO L. REV. 373, 416-17 (1995). Cf Lior Jacob Strahilevitz, The Right To Destroy, 114 YALE L.J. 781, 853 (2005) (praising VARA's "balanced and sophisticated approach"). Several important articles predating VARA urged the United States to adopt moral rights laws. See Edward J. Damich, The Right of Personality: A Common-Law Basis for Protection of the Moral Rights of Authors, 23 GA. L. REV. 1 (1988); Roberta R. Kwall, Copyright and the Moral Right: Is an American Marriage Possible?, 38 VAND. L. REV. 1 (1985). For one of a handful of articles criticizing VARA from a free speech perspective, see Eric E. Bensen, Note, The Visual Artist's Rights Act of 1990: Why Moral Rights Cannot be Protected Under the United States Constitution, 24 HOFSTRA L. REV. 1127 (1996).
7. See, e.g., Robert C. Bird, Moral Rights: Diagnosis and Rehabilitation (Nov. 27, 2007) http://ssrn.com/abstract=1033021 (predominant trend in scholarship urges "adopting . . . stronger protection of [moral] rights in the United States"). Even the fiercest, most influential copyright critic, Lawrence Lessig, has refrained from criticizing moral rights. Lessig wrote: "I don't see where I've ever said anything against moral rights .... [T]he moral rights tradition has actually proven to be an important check on . . . publishers." Lessig Blog: On the Challenge of Moral Rights, http://lessig.org/blog/2005/02/on-the-challenge-of-moral-righ.html (Feb. 26, 2005, 8:30 a.m.).
8. Kwall, How Fine Art Fares Post VARA, supra note 6; see also Neil Netanel, Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, 12 CARDOZO ARTS & ENT. L.J. 1, 37 (1994) ("The right of integrity is generally seen as the central tenet of moral rights jurisprudence.").
9. I discuss this in depth in Amy Adler, The Folly of Defining "Serious " Art, in THE NEW GATEKEEPERS: EMERGING CHALLENGES TO FREE EXPRESSION IN THE ARTS 90 (Christopher Hawthorne, Andras Szánto et al. eds., 2003).
10. As I will show, these attacks include both conceptual attacks on the category of "art," and physical attacks on works of art.
11. Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, as amended on Sept. 28, 1979, S. Treaty Doc. No. 99-27, 1161 U.N.T.S. 3. Article 6bis became part of the Convention in 1928.
12. For a discussion of the state statutes and the extent to which VARA preempts them, see WILLIAM F. PATRY, 4 PATRY ON COPYRIGHT § 16:44 (2007).
13. Congress passed the Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (1988) (codified as amended in scattered sections of 17 U.S.C.)
14. Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (2000).
15. Id. §106A (a)(3)(A).
16. Id. § 106A (a)(1). This Essay focuses on the right of integrity, which is considered to be the central moral right, and not on the right of attribution. Nonetheless, I want to briefly note that the right of attribution, while not unproblematic, see, e.g., infra note 201, can serve some of the same goals as the integrity right while avoiding the major problems addressed in this Essay. By allowing an artist to remove his name from a modified artwork, the right of attribution protects the artist's reputational interest while not interfering with the public interest in modification. The mutilated work, a new and potentially valuable work of art, can still exist, but the artist can protect his reputation (albeit imperfectly) by choosing to disassociate himself from the altered work.
17. Id. § 106A(a)(3)(B). VARA does not define "recognized stature." For a few opinions interpreting the term's meaning, see Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999); Scott v. Dixon, 309 F. Supp. 2d 395 (E.D.N. Y. 2004); Pollara v. Seymour, 150 F. Supp. 2d 393 (N.D.N.Y. 2001); Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), rev'd on other grounds, 71 F.3d 77 (2d Cir. 1995). The right to prevent destruction is not universal in civil law countries. See Carter, 71 F.3d at 81. This variation illustrates the different purposes that moral rights laws serve. To the extent that the right of integrity serves primarily to protect the artist's reputational interest, destruction tends not to be prevented; the theory is that continued display of mutilated work misrepresents an artist's intention and thus harms him more than if the work were destroyed altogether. To the extent that the right of integrity is seen as primarily protecting the public interest in preserving cultural heritage, destruction is prohibited.
18. S.C. § 101, The statute protects "multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author." Id. VARA's legislative history directs courts to "use common sense and generally accepted standards of the artistic community in determining whether a particular work falls within the scppe of the definition." H.R. REP. NO. 101-514, at 11 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6921. But my argument in Part IV suggests that in light of the direction of contemporary art, "common sense" and "generally accepted standards of the artistic community" could lead to opposite outcomes.
19. S.C. §101.
20. Id. For some cases finding material did not meet the definition of "visual art" under VARA, see Nat'l Ass'n for Stock Car Auto Racing, Inc. v. Scharle, 356 F. Supp. 2d 515 (E.D. Pa. 2005); Lilley v. Stout, 384 F. Supp. 2d 83 (D.D.C. 2005); Pollara, 344 F.3d 265. Section 113(d) of VARA makes special provisions for works attached to buildings; this category raises a particular set of problems. 17 U.S.C. § 113(d).
21. See infra note 29.
22. For a comparative analysis of U.S. and European moral rights, see Netanel, supra note 8; Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 HARV. INT'L L.J. 353 (2006); Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 HARV. L. REV. 554, 557 (1940). John Merryman's 1976 article, supra note 5, was profoundly influential on American scholars.
23. European moral rights doctrine is broader in scope than VARA, sometimes extending to reproductions of original works. See, e.g., Bernard-Rousseau v. Galeries Lafayette, Tribunal de grande instance [T.G.I.] [ordinary court of original jurisdiction], Mar. 13, 1973, J.C.P. 1974, IV, 48, at 224 (Fr.). New York moral rights law also extends to reproductions. See Wojnarowicz v. Am. Family Ass'n., 745 F. Supp. 130 (S.D.N.Y. 1990).
24. JOHN H. MERRYMAN & ALBERT ELSEN, LAW, ETHICS AND THE VISUAL ARTS 423 (5th ed. 2007).
25. Id. at 443 (describing Dubuffet v. Renault, Supreme Court of Cassation.) Dubuffet didn't enforce the judgment. Compare Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 535 (S.D.N.Y. 2001) (denying artist's VARA claim to have commissioned sculpture completed). In the recent litigation between Christoph Buchel and Mass Moca, the court found VARA inapplicable to the unfinished sculpture at issue in that case. Mass. Museum of Contemporary Art Found., Inc. v. Buchel, No. 07-30089-MAP, 2008 WL 2755842, at *13 (D. Mass. July 11, 2008).
26. MERRYMAN & ELSEN, supra note 24, at 423.
27. See Netanel, supra note 8, at 2.
28. This is true in some other civil law countries. Adolf Dietz, The Moral Right of the Author: Moral Rights and the Civil Law Countries, 19 COLUM.-VLA J.L. & ARTS 199, 213-217 (1995).
29. This applies to artworks created after the effective date of VARA, June 1, 1991. 17 U.S.C § 106A(d) (2000). Works created prior to that date but not transferred enjoy longer protection: life of the author plus 70 years (copyright term). VARA does not apply to works created and transferred prior to the effective date. Cf California Art Preservation Act, CAL. CIV. CODE § 987 (West 2006) (granting rights for life plus fifty years).
30. See, e.g., Bird, supra note 7 (surveying scholarship and finding predominant trend urges "stronger protection of rights in the United States").
31. On this and other points, moral rights law seems to invite a feminist analysis.
32. See, e.g., Morris E. Conn, Author's Moral Rights: Film and Radio, 1 HOLLYWOOD Q. 69, 69-70 (1945).
33. The relationship between art and commerce is so rich and complex that I could not begin to do it justice within the confines of this piece. I look at one aspect of the relationship in Part IV, where I show that contemporary art questions the distinction between art and ordinary commercial products.
34. MERRYMAN & ELSEN, supra note 24, at 423.
35. Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995).
36. MERRYMAN & ELSEN, supra note 24, at 423.
37. Carter, 71 F.3d at 81. Although moral rights are almost always described as non-economic, Professors Hansmann and Santilli have argued that the rights protect pecuniary interests. Henry Hansmann & Marina Santilli, Authors' and Artists' Moral Rights: A Comparative Legal and Economic Analysis, 26 J. LEGAL STUD. 95, 106 (1997); see also William Landes, What Has the Visual Artists Rights Act Accomplished? (John M. Olin Law & Economics Working Paper No. 123 (2d Series, 2001), available at http://papers.ssrn.com/so13/ papers.cfm?abstract-id=270985 (providing economic analysis of moral rights).
38. Merryman, supra note 5, at 1029 (quoting Millet, Tribunal de la Seine, May 20, 1911, Amm. I. 271).
39. Id.
40. This emphasis on public interest is not universal in moral rights laws. See supra note 22 and infra notes 50-54 and accompanying text.
41. Merryman, supra note 5, at 1041.
42. H.R. REP. NO. 101-514, at 5-6 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6915-16 (footnote omitted). The California moral rights statute significantly emphasizes the public interest. See CAL. CIV. CODE § 987(a) (West 2006); cf. MASS. GEN. LAWS, ch. 231, § 85S (2008) (serving dual purpose of protecting public and private interests).
43. 1990 U.S.C.C.A.N. at 6920.
44. Id. at 6916 (statement of Rep. Markey).
45. Id. (statement of Weltzin Blix, a representative of the National Artists Equity Association).
46. Hansmann & Santilli, supra note 37, at 106.
47. Compare the limited protection in the United States for film provided by the National Film Preservation Act of 1996, 2 U.S.C. § 179 (2000), and the more robust protection for architectural landmarks. National Historic Preservation Act, 16 U.S.C. § 470 (2000).
48. For some of the important scholarship attacking romantic notions of authorship embedded in intellectual property law, see MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993); Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of "Authorship," 1991 DUKE L.J. 455 (1991); Martha Woodmansee, The Genius and Copyright: Economic and Legal Conditions of the Emergence of 'Author,' 17 EIGHTEENTH-CENTURY STUD. 425 (1984); James D.A. Boyle, The Search for an Author: Shakespeare and the Framers, 37 AM. U.L. REV. 625 (1988). For my scholarship exploring postmodern notions of authorship in First Amendment law, see Amy Adler, What's Left? Hate Speech, Pornography and the Problem for Artistic Expression, 84 CALIF. L. REV. 1499 (1996) [hereinafter Adler, What's Left?]; Amy Adler, Note, Post-Modern Art and the Death of Obscenity Law, 99 YALE L.J. 1359 (1990) [hereinafter Adler, Post-Modern Art].
49. ALEXANDER STURGIS ET AL., REBELS AND MARTYRS: THE IMAGE OF THE ARTIST IN THE NINETEENTH CENTURY (2006).
50. New York's law does not purport to protect the public interest. See N.Y. ARTS & CULT. AFF. LAW § 14.03 (McKinney 2006). Note that VARA significantly preempts state moral rights laws. See, e.g., PATRY, supra note 12.
51. California's statute is an exception. See infra note 53.
52. See, e.g., Hansmann & Santilli, supra note 37, 102-07 (seeing harmony between private and public models of moral rights laws). Strahilevitz also defends VARA's grant of control to the artist. Strahilevitz, supra note 6, at 853.
53. California, however, allows an "organization acting in the public interest" to bring a cause of action to protect a work of "fine art" if it merits "substantial public interest." CAL. CIV. CODE § 989(a)(1), (c) (West 2006).
54. This is true even in California, where the moral rights law goes much further than VARA to protect the public interest. See supra note 53 (describing public interest provisions of California law). But even in California, if the artist wishes to destroy his own masterpiece, presumably the type of work that the phrase "substantial public interest" is intended to protect, he would have the right to do so even if the public tried to stop him. See CAL. CIV. CODE § 987(c)(1) (West 2006) ("No person, except an artist who owns and possesses a work of fine art which the artist has created, shall intentionally commit, or authorize the intentional commission of, any physical defacement, mutilation, alteration, or destruction of a work of fine art.").
55. See, e.g., CECILE NEBEL, THE DARK SIDE OF CREATIVITY: BLOCKS, UNFINISHED WORKS, AND THE URGE TO DESTROY 95-132 (1988); Louis Menand, Capture the Flag: Jasper Johns's Own Private Icon, SLATE, Oct. 30, 1996, http://www.slate.com/id/2905. In the realm of music, Brahms, who famously destroyed more work than he published, provides another example.
56. See Strahilevitz, supra note 6, at 830-38 (discussing authors who destroy their work).
57. Compare the "right to repent" in some civil-law countries, which in theory allows some authors to withdraw already-published written work. See Merryman, supra note 5, at 1028 (and source cited therein).
58. Serra v. U.S. Gen'l Servs. Admin., 847 F.2d 1045 (2d Cir. 1988).
59. Many members of the art world testified on behalf of Serra. Id.
60. They detested it on a variety of grounds, only some aesthetic. Id. at 1047. I believe it was an extremely aggressive sculpture.
61. Based on the design of the piece, I find his claim convincing.
62. Could Serra have won had he created the work after VARA? Serra would have had to convince the court that the government had destroyed the work rather than merely relocated it, as the government argued. If Tilted Arc had been relocated, then the government's actions might arguably have been a modification of placement, excepted under VARA Section 106A(c)(2). Cf. Bd. of Managers of Soho Int'l Arts Condominium v. City of N.Y., No. 01 Civ. 1226, 2005 WL 1153752 (S.D.N.Y. May 13, 2005) (considering if relocating sculpture constituted destruction). Serra would also have had to prove the work was of "recognized stature." Because Serra is arguably the greatest living American sculptor, Tilted Arc should have easily qualified for "recognized stature." I am less confident that a court would have accepted the artistic importance of site specificity, although I think the piece was clearly site specific. The rationale articulated in a 2006 First Circuit decision further undermines the possibility that Serra would have received VARA protection. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) (holding VARA inapplicable to site-specific art).
63. See also Carter v. Helmsley-Spear, 71 F.3d 77 (2d Cir. 1995) (holding that lobby installation was a work for hire and allowing removal). The Second Circuit's decision in Carter that the sculpture was outside VARA's scope was not inevitable. I suspect unstated policy implications affected the decision. To the extent there was an identifiable public interest, it arguably lay on the side of removal.
64. Rosalind Krauss, Changing the Work of David Smith, ART IN AMERICA, Sept.-Oct. 1974, at 30, 31.
65. Merryman, supra note 5, at 1040 (internal citations omitted).
66. Id.
67. See infra Part V for discussion of the extraordinary complexity of defining what makes art "better."
68. Perhaps it should not even be a relevant one. In battles over government funding for art, the pro-funding side argues that the market cannot begin to support worthy art. And the market fluctuates and can be "wrong" or slow. Van Gogh is but one famous example of an artist prized today but impoverished in his lifetime. See infra, notes 200, 209 accompanying text, discussing the present art market's peculiarities.
69. Richard Serra, Art and Censorship, 17 CRITICAL INQUIRY 574, 576 (1991).
70. Even critic Rosalind Krauss, arguing for the importance of the painted work in Smith's oeuvre, still recognized the stripped work's appeal. Krauss, supra note 64, at 30. Of course it is nearly impossible, as I have argued elsewhere, to pinpoint the proper method to evaluate artistic merit. See generally, Adler, Post-Modern Art, supra note 48 (analyzing lack of critical consensus for evaluating art and shifting evaluations of art over time; showing implications for obscenity law). In this case, the critical consensus favored Greenberg's preferences, but this observation may be circular since Greenberg's sensibility held such sway over critics. Merryman, supra note 5, at 1038 (arguing that higher prices may have reflected Greenberg's power).
71. Compare our attitude toward Greek sculpture, which we often forget was once painted. Krauss, supra note 64.
72. T.S. ELIOT, THE WASTE LAND AND OTHER POEMS 28 (1930).
73. RICHARD BADENHAUSEN, T.S. ELIOT AND THE ART OF COLLABORATION 76 (2004) (quoting T.S. Eliot, On a Recent Piece of Criticism, 10 PURPOSE 93 (1938)).
74. Id. at 75-79.
75. See Michael Rips, Who Owns Seydou Keita?, N.Y. TIMES, Jan. 22, 2006; see also Michael Kimmelman, Walker Evans. Or Is It?, N.Y. TIMES, Aug. 25, 2006. Cf. SHL Imaging, Inc. v. Artisan House, Inc., 117 F. Supp. 2d 301, 310 (S.D.N.Y. 2000) (copyright dispute between printer and photographer).
76. Mass. Museum of Contemporary Art Found., Inc. v. Buchel, No. 07-30089-MAP, 2008 WL 2755842, at *13 (D. Mass. July 11, 2008).
77. Posting of Paul Schmelzer to Off Center, http://blogs.walkerart.org/ offcenter/ 2007/09/22/mass-moca-wins-show-buchel-work/ (Sep. 22, 2007, 11:26 CDT) (quoting Judge Michael Ponsor).
78. Merryman, supra note 5, at 1041.
79. Kwall, Inspiration, supra note 5, at 1986 (emphasis added); see also id. at 1972 ("Central to moral rights is the idea of respect for the author's meaning and message as embodied in a tangible commodity . . . .") (emphasis added). The French court in Millet stated that work must be preserved exactly as "it emerged from the imagination of its author and later conveyed to posterity without damage." Merryman, supra note 5 (quoting Millet, Tribunal de la Seine, May 20, 1911, Amm. I. 271). Merryman describes violating integrity as "misrepresentfing] the artist's intention." Id.
80. Kwall, Inspiration, supra note 5, at 1975.
81. This Section depends heavily on my previous work. Adler, What's Left?, supra note 48.
82. I treat these arguments in depth in Adler, What's Left?, supra note 48, and also in Amy Adler, The Thirty-Ninth Annual Donley Memorial Lectures: The Art of Censorship, 103 W. VA. L. REV. 205 (2000).
83. Adler, What's Left?, supra note 48, at 1541 -46.
84. Blake Gopnik, Read All About It: With Explanatory Labels Papering Museum Walls, Are We Still Looking at the Pictures They Explain?, WASH. POST, Dec. 9, 2001 at G01 (describing the expanding role of wall text in the museum visitor's experience).
85. Barbara Gamarekian, Show Closing Demanded at Washington Museum, N.Y. TIMES, July 13, 1991.
86. See supra note 79.
87. Professor Merryman expressed clear disapproval of this possibility. Merryman, supra note 5, at 1048. He strictly limits his concern for artistic intentions to physical violations of works.
88. S.C. § 106A(c)(2) (2000). Such modification is actionable if caused by gross negligence. Id.
89. See Rigamonti, supra note 8, at 366 (describing the Hundertwasser case, Bundesgerichtshof [BGH] [Federal Court of Justice], 150 Entscheidungen des Bundesgerichtshofes in Zivilsachen [BGHZ] 32 (F.R.G.)).
90. MERRYMAN & ELSEN, supra note 24, at 316.
91. Marcel Duchamp, Apropos of "Ready-mades," Talk at the N.Y. Museum of Modern Art (Oct. 19, 1961), in ART AND ARTISTS (July 1966), at 47.
92. Consider the history of the Soviet Union, the vast destruction of monuments in revolutionary France, or the symbolically fraught choices made during the invasion of Iraq regarding the Saddam statue.
93. JAKE & DINOS CHAPMAN, Introduction to INSULT TO INJURY (2004) (quoting David Proposes a Monument to the French People (1793)).
94. Compare the treatment of other remnants of racism, such as racist memorabilia. See Adler, What's Left?, supra note 48, at 1559, n.252 (comparing artists David Levinthal and Fred Wilson, both of whom work with racist memorabilia).
95. Cf. JOSEPH A. SCHUMPETER, CAPITALISM SOCIALISM AND DEMOCRACY (3d ed. 1962) (employing the concept of creative destruction).
96. A significant trend in European monument design is to re-use or mutilate vestiges of the tainted past. James E. Young, The Counter-Monument: Memory Against Itself in Germany Today, 18 CRITICAL INQUIRY 267 (1992); Allan Cochrane, Making up Meanings in a Capital City: Power, Memory and Monuments in Berlin, 13 EUR. URB. & REG'L STUD. 5 (2006).
97. The complete destruction of a monument could also result in a new work; the absence of the sculpture becomes meaningful. As Vincent Scully mournfully observed about the destruction of the twin towers, "the vacancy becomes a presence we must recognize." Alec Applebaum, A Professor Learns to Love the Twin Towers- and Hate the Void They Left Behind (Q & A: Vincent Scully), METROPOLIS MAG, Dec. 2001, available at http://www.metropolismag.com/html/content-1201/scu/index.html.
98. See N.Y. ARTS & CULT. AFF. LAW § 14.03 (McKinney 2006). VARA doesn't protect reproductions, but does protect limited editions. 17 U.S.C. § 106 (A) (1) (2000).
99. Although the fair use provisions of the Copyright Act technically apply to VARA, no fair use defense to a moral rights case has been adjudicated. I doubt a court would extend the provisions very far in the case of a permanent alteration of a unique work of art. The fair use concept seems to depend on copying. The original remains intact. Permanently defacing someone's work to create a new one seems far more troubling than market damages caused by unauthorized copies. The hearings on VARA hint that Congress didn't envision the fair use exception being easily invoked in this context: "The Committee does not want to preclude fair use claims in this context. However, it recognizes that it is unlikely that such claims will be appropriate--- " H.R. REP. NO. 101-514, reprinted in 1990 U.S.C.C.A.N. 6915, 6932 (emphasis added). The House Report stated that the "modification of a single copy or limited edition of a work of visual art has different implications for the fair use doctrine than does an act involving a work reproduced in potentially unlimited copies." Id.
100. But see infra Part III.C.
101. ROBERT HUGHES, GOYA 304 (2003).
102. Alan Riding, Goya Probably Would not be Amused, N.Y. TIMES, Apr. 6, 2003.
103. Jonathan Jones, Look What We Did, GUARDIAN, March 31, 2003
104. Goya produced the plates between 1810-1829, but they were too daring to print during his lifetime. KERSTIN MEY, ART AND OBSCENITY 58 (2007).
105. Jones, supra note 103.
106. Id.
107. Id.
108. CHAPMAN, Introduction to INSULT TO INJURY, supra note 93.
109. Hughes, supra note 101.
110. To fully understand this loss, see Part IV.
111. It is important that De Kooning gave the drawing to Rauschenberg. Thus, even if the drawing had been protected by VARA, this was a willing collaboration, not a moral rights violation. As with the example of Goya, above, I offer this example to establish that destruction and modification are central modes of creation.
112. CALVIN TOMKINS, OFF THE WALL 97 (1980).
113. CALVIN TOMKINS, THE BRIDE AND THE BACHELORS: FIVE MASTERS OF THE AVANT GARDE 210 (Penguin Books, 1976) (1965).
114. It may be hard for us to appreciate now how radical Rauschenberg was. We might have some insight into the issue from the current valuation of de Kooning in the art market: a small de Kooning drawing was recently on view at Christie's for three million dollars.
115. My reading here, pun half-intended, is influenced by HAROLD BLOOM, THE ANXIETY OF INFLUENCE (2d ed. 1997).
116. DOUGLAS CRIMP, ON THE MUSEUM'S RUINS 56 (1993) (explaining that in Rauschenberg's work, "photography began to conspire with painting in its own destruction").
117. ROBERT RAUSCHENBERG, BARBARA ROSE & ELIZABETH AVEDON, RAUSCHENBERG 51 (1987).
118. Two exceptionally important caveats are necessary. First, for the sake of argument, I have dramatically oversimplified my narrative about contemporary art and art history. This is essential to emphasize because of the extreme pluralism that characterizes recent art. Second, my argument is also contentious. I have taken a strong position on the state of affairs in art, and although some scholars, critics, curators and artists would likely agree with me, I have no doubt that others would vigorously contest my account.
119. ALAN LIU, THE LAWS OF COOL 8 (2004).
120. Note that no "original" of the 1917 work exists. Eight are in existence. See Part III.C. discussing preservation and authenticity. Duchamp turned the urinal on its side and submitted it under the pseudonym "R. Mutt" to a 1917 exhibition. It was refused.
121. Duchamp's pseudonymous signature was also significant in this regard; it simultaneously transformed the urinal into "art" while undermining the concept of "art." This was not the first attack against Fountain, In 2001, two artists urinated on the Fountain in the Tate Modern. Alan Riding, Conceptual Artist as Vandal: Walk Tall and Carry a Little Hammer (or Ax), N.Y. TIMES, Jan. 7, 2006.
122. Id.
123. For background, see, for example, JANIS MINK, MARCEL DUCHAMP, 1887-1968: ART AS ANTI-ART (1995); HANS RICHTER, DADA: ART AND ANTI-ART (David Britt trans., 1997) (1965).
124. ARTHUR DANTO, AFTER THE END OF ART 85 (1997) [hereinafter DANTO, AFTER THE END OF ART].
125. BBC News, Duchamp Urinal Tops Survey, Dec. 1, 2004, available at http://news.bbc.co.Uk/l/hi/entertainment/arts/4059997.stm.
126. LIU, supra note 119, at 8-9
127. Id.
128. A wide range of recent artists, from Gordon Matta-Clark, to Felix Gonzalez-Torres, to Urs Fischer, make work that seems indebted to Tinguely. Cf. Man Ray's 1923 assemblage Object to Be Destroyed. The piece was stolen and destroyed. Man Ray recreated it, naming it Indestructible Object.
129. Once again, I describe these works not because they necessarily involve technical violations of VARA but rather because they expose the vital importance of destruction as a mode of creation in the contemporary art world.
130. Simon Starling 2007, http://chelseaartgalleries.com/Casey+Kaplan/ Simon+Starling+2007.html. Starling used the wooden pieces chopped from the boat to fuel it as it sank.
131. Press Release, Cancelled, Erased & Removed (June 21, 2008), http://www.skny.com/exhibitions/2008-06-21-cancelled-erased-and-removed/ pressrelease/.
132. R.C. Baker, Digital Vandalism at Shafrazi Gallery, VILLAGE VOICE, June 3, 2008, available at http://www.villagevoice.com/2008-06-03/art/lies-all-lies/.
133. Roberta Smith, When Artworks Collide, N.Y. TIMES, May 16, 2008, at E25. The show was inspired, in part, by the history of the Tony Shafrazi Gallery where it took place: Shafrazi rose to fame for defacing Picasso's Guernica. See infra note 153 and accompanying text. The title of the show also alludes to a famous painting that had been vandalized, Barnett Newman's Who's Afraid of Red, Yellow and Blue? Furthermore, the underlying exhibition, featuring four prominent graffiti artists, also implicated vandalism; some of their works originally appeared in subway stations and other public spaces.
134. Kirk Semple, Lawbreakers, Armed with Paint and Paste; Underground Artists Take to the Streets, N.Y. TIMES, July 9, 2004, at Bl.
135. Id.
136. Colin Moynihan, Defacer with Mystery Agenda Is Attacking Street Art, N.Y. TIMES, Mar. 7, 2007, at B2.
137. Rumor has it that the Splasher is a man.
138. Alex Mindlin, For Vandals, an Ironic Target: Street Artists, N.Y. TIMES, Jan. 28, 2007, § 14, at 6.
139. Id. (quoting a member of Faile).
140. Latour, supra note 1, at 21.
141. GAMBONI, supra note 2, at 25.
142. MoMA.org, Exhibitions 2008, Joan Miró: Painting and Anti-Painting 1927-1937, http://www.moma.org/exhibitions/exhibitions.php?id=3993 (last visited Nov. 24, 2008). A reviewer of this exhibition wrote: "Amputate tradition, torture the past, terrorize the present. The impulse to destroy was part of what" defined early modern art. Holland Cotter, Miró, Serial Murderer of Artistic Conventions, N.Y. TIMES, Oct. 30, 2008, at C23.
143. LIU, supra note 119, at 327.
144. Although I note a commonality between modernism and postmodernism, their targets of destruction differ. Modernism destroyed tradition, not the artist/genius. Postmodernism destroyed the latter as part of a broader attack on individuality. One might also consider the ascetic, anti-representational turn in art, evident in works by such varied artists as Mondrian, Kandinsky, Rothko, Hoffmann, Reinhardt, Motherwell, as evidencing an iconoclastic impulse.
145. J-K HUYSMANS, CERTAINS 29 (1889) (quote translated from the original French by Amy Adler).
146. JAMES M. THOMPSON, TWENTIETH CENTURY THEORIES OF ART 277 (1990). Similarly, Italian Futurists such as Marinetti wanted to demolish museums. GAMBONI, supra note 2, at 259.
147. Louis Menand, Capture the Flag, SLATE, Oct. 30, 1996, http://www.slate.com/id/2905.
148. Id.
149. Adomo called museums "sepulchers" of art. THEODOR W. ADORNO, Valéry Proust Museum, in PRISMS 175, 181 (Samuel & Shierry Weber trans., 1981) (1967). See also CRIMP, supra note 116.
150. Dario Gamboni, Image to Destroy, Indestructible Image, in ICONOCLASH, supra note 1, at 88, 127.
151. Id. at 124.
152. Id.
153. Id. Although most in the art world decry attacks on art, there have been defenders. For example, in 1997, performance artist Alexander Brener sprayed a dollar sign on a Malevich painting in Amsterdam, calling his action '"a political and cultural action against corruption and elitism in culture.'" Id. at 127. The editor and publisher of Flash Art defended the artist/vandal, calling his arrest "an offense to the artist's freedom of expression." Id.
154. Id. at 124.
155. KEN FRIEDMAN, THE FLUXUS READER 95 (Ken Friedman ed., 1998). Fluxus was an international, experimental art movement dating from the early 1960s. A highly eclectic movement that traversed different media, Fluxus drew on (and in some cases influenced) other artistic movements including performance art, conceptual art and Dada.
156. Latour, supra note 1, at 21 (emphasis omitted).
157. W.J.T. MITCHELL, WHAT DO PICTURES WANT? 18 (2005).
158. Of course, as I discuss in Part V, defining which is "better" is extraordinarily complex. We would have to worry about who should make the determination, and also when it should be made, since our estimation of art often shifts dramatically over time.
159. See GAMBONI, supra note 2, at 45-47 (discussing Nazi attacks on so called "degenerate art"); LATOUR, supra note 1, at 18-19 (describing Taliban destruction of Buddhas in 2001).
160. DANTO, AFTER THE END OF ART, supra note 124, at 16; see also SYLVÉ RE LOTRINGER & PAUL VIRILIO, THE ACCIDENT OF ART 73 (Michael Taormina trans. 2005) ("The visual arts no longer speak to the eyes.").
161. Walter Benjamin, The Work of Art in the Age of Mechanical Reproduction, in ILLUMINATIONS 217 (Hannah Arendt ed., Harry Zohn trans., 1968) (1955) ("The situations into which the product of mechanical reproduction can be brought may not touch the actual work of art, yet the quality of its presence is always depreciated .... [T]hat which withers in the age of mechanical reproduction is the aura of the work of art.").
162. In 1911, after the Mona Lisa was stolen, people lined up to look at the empty space on the wall where it had been in the Louvre. See ROY MCMULLEN, MONA LISA: THE PICTURE AND THE MYTH 200 (1975). I believe our modern pilgrimage to the painting bears an echo of this- among the things we look at is a marker of what is lost.
163. Gamboni, supra note 150, at 127 (emphasis supplied).
164. Merryman, supra note 5, at 1041. Cf HAL FOSTER, Preface to THE ANTI-AESTHETIC 10 (Hal Foster ed., 1983) (describing shift from viewing artifacts as modernist "works" to "contingent" postmodernist "texts"). It follows that the importance of preservation diminishes.
165. I am most comfortable with this argument when applied to painting and two dimensional art forms. Sculpture and architecture pose deeper problems because of the difficulty of translating their spatial components into two dimensions. (Sculptures are more easily reproduced in three dimensions than architecture, but neither can be satisfactorily reproduced in the 2D world of cyberspace.) Finally, my argument responds to the claim in moral rights scholarship that preservation is important because it assures our common vocabulary. Thus I focus on the aesthetic value of works of art. Reproductions deny scholars important historical information (as well as other kinds of valuable information, for example about authenticity). Furthermore, although the aura is lost, we don't easily admit it. Perhaps the sense of authenticity that many feel before the "real thing" might still be valuable, even if it is based on what I believe is a fantasy.
166. Of course, good digital reproductions could reproduce scale and color. And non-digital reproductions-forgeries, for example-can capture texture and can be astonishingly convincing.
167. Important questions arise: if the aura is gone, why do artists need to destroy originals? Won't copies suffice? I think that someday, perhaps, copies will suffice. Indeed the interest in destruction may soon wane. We are in a moment of transition as we are bombarded by limitless reproduction. It is hard to predict how we will one day regard the notions of "original" and "copy." But for now, many of us still believe in the aura, or at least still long for it. The destruction of the original still hurts. Thus, the shock of such destruction forces us, perhaps better than any other conceivable artistic action, to confront the aura's decline.
168. See Jean Baudrillard, The Precession of Simulacra, in ART AFTER MODERNISM: RETHINKING REPRESENTATION 253 (Brian Wallis ed., 1984).
169. LUDWIG FEUERBACH, Preface to THE ESSENCE OF CHRISTIANITY (Harper Torchbook ed., George Eliot trans., 1957) (stating that our era "prefers the image to the thing, the copy to the original, the representation to the reality").
170. WILLIAM I. MILLER, FAKING IT 161 (2003).
171. DANTO, AFTER THE END OF ART, supra note 124, at 16.
172. Duchamp complained in dismay that critics "admire [my readymades] for their aesthetic beauty." Id. at 84.
173. The Whitney Museum's Biennial exhibitions are important attempts to capture the essence of the art world every two years. See Adler, What's Left?, supra note 48, at 1543 n.181 (noting importance of Biennials).
174. Holland Cotter, Art's Economic Indicator, N.Y. TIMES, Mar. 7. 2008, at E31 (quoting curators).
175. See, e.g., MARTHA BUSKIRK, THE CONTINGENT OBJECT OF CONTEMPORARY ART (2003).
176. Or it exists as commodity. See infra Part IV.
177. ADORNO, supra note 149.
178. GAMBONI, supra note 2, at 256 (quoting Pissarro).
179. Randy Kennedy, Giving the Artists a Voice in Preserving Their Work, N.Y. TIMES, June 29, 2006, at E1.
180. Id.
181. LUCY R. LIPPARD, EVA HESSE (1976).
182. From Jean Tinguely's self destroying sculptures, described supra, to Robert Smithson's earthworks, some artworks are designed to be ephemeral. Others are meant to constantly change. For example, Hesse made some sculptures that would change with each installation. See, e.g., Expanded Expansion (1969), available at http://www.guggenheimcollection.org/site/artist- work-md-63-l.html.
183. Carol Vogel, The Gray Areas of Jasper Johns, N.Y. TIMES, Feb. 3, 2008, at C1 (quoting Johns).
184. ARTHUR C. DANTO, ENCOUNTERS AND REFLECTIONS 286-87 (1990) [hereinafter DANTO, ENCOUNTERS].
185. Peter Weibel, An End to the "End of Art"? On the Iconoclasm of Modern Art, in ICONOCLASH, supra note 1, at 614.
186. Cohn, supra note 32, 69-70.
187. Hansmann and Santilli justify the special treatment of art by explaining that "creators of. . . 'art'. . . typically [create] unique and highly individual works that require substantial skill and effort, [and] commonly feel a peculiarly strong attachment" to their work. Hansmann & Santilli, supra note 37, at 103.
188. Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995).
189. Adler, Post-Modem Art, supra note 48, at 1364-69 (discussing Duchamp and his relation to postmodernism).
190. Once again, I should note that by emphasizing the importance of this movement, I do not mean to claim that it is universal in contemporary art. See supra note 118.
191. And in romanticism, as I have explained above.
192. This is primarily because the pictures themselves-action paintings-record the artist's movement, but also because Pollock was famously photographed in the process of painting. When Life featured him in 1949, he became a "pinup of seething manhood." Peter Schjeldahl, American Abstract: Real Jackson Pollock, NEW YORKER, Jul. 31, 2006.
193. That is, reducing painting to line and to action.
194. To quote Merryman's justification for the special treatment of art in moral rights law. MERRYMAN & ELSEN, supra note 24, at 423.
195. See Adler, Post-Modern Art, supra note 48, at 1363-64.
196. Barry Gewen, State of the Art, N.Y. TIMES, Dec. 11, 2005, § 7 (Book Review), at 28 (quoting art historian Robert Rosenblum).
197. Clement Greenberg, Modernist Painting, in MODERN ART AND MODERNISM: A CRITICAL ANTHOLOGY 5, 6 (Francis Frascina & Charles Harrison eds., 1982).
198. CAROLINE A. JONES, MACHINE IN THE STUDIO 422 n.35 (1996) (quoting interview with Warhol).
199. VICTOR BOCKRIS, WARHOL: THE BIOGRAPHY 320 (1989).
200. And to his inspiration in Duchamp. Danto wrote that we live in the "age of Warhol." DANTO, ENCOUNTERS, supra note 184, at 293. Auction prices reflect this. Paul Virilio wrote: "When you look at Christie's or Sotheby's auction prices, Rembrandt comes after Warhol, Monet after Duchamp." LOTRINGER & VIRILIO, supra note 160, at 64.
201. CHRISSIE ILES & PHILIPPE VERGNE, WHITNEY BIENNIAL 2006: DAY FOR NIGHT 334 (2006). This model of production raises significant questions not addressed here about the necessity of paternity rights as incentives to creation. More fundamentally, an incompatibility appears between the paternity right's valorization of the author and the rejection of the author in the kind of contemporary art that Reena Spaulings exemplifies.
202. Id.
203. Reena Spaulings is in fact a creation/product of the Bernadette Corporation. Id. at 178.
204. Rob Walker, The Brand Underground, N.Y. TIMES, July 30, 2006 § 6 (Magazine), at 29. The recent copyright skirmish between Barney's "window dresser" Simon Doonan, and "high artist" Jack Pierson evidences the increasing absurdity of trying to separate art from commerce. Simon Doonan, How Did I Become the Typhoid Mary of the Art World?, N.Y. OBSERVER, Apr. 17, 2006, (Culture), at 1.
205. ILES & VERGNE, supra note 201, at 330 (describing Snow's self-presentation as "artist/outlaw"). This is remarkable considering that his work is all about cred-documenting his life of coke, sex, and stealing.
206. Ruth La Ferla, The Artist's Fall Collection, N.Y. TIMES, NOV. 8, 2007, at G1.
207. ANDY WARHOL, THE PHILOSOPHY OF ANDY WARHOL 92 (1975).
208. Ula Ilnytzky, No End in Sight for Soaring Art Market, ABC News, Dec. 25, 2007, available at http://abcnews.go.com/Business/wireStory?id= 4050458.
209. Calvin Tomkins, A Fool for Art, NEW YORKER, Nov. 12, 2007, at 64-75. For more on the extraordinary state of the art market, see Artforum's recent issue devoted to the subject. Ai Weiwei et al., Art and Its Markets: A Roundtable Discussion, ARTFORUM, Apr. 2008.
210. Id.
211. Colin Gleadell, Hirst's £16m for a Slice of Bacon, TELEGRAPH, NOV. 20, 2007, (Features: Art Sales), at 30. Jeff Koons and Hirst have both laid claim to the title of best-selling living artist at auction.
212. Id.
213. William Shaw, The Iceman Cometh, N.Y. TIMES, June 3, 2007 § 6 (Magazine), at 30.
214. Tomkins, A Fool for Art, supra note 209.
215. Id.
216. See Adler, Post-Modern Art, supra note 48, at 1369-75 (analyzing merger between art and pornography).
217. Karen Rosenberg, Influences: John Currin, N.Y. MAG., Nov. 19, 2006, available at http://nymag.com/arts/art/features/24355/.
218. Or at least, to have come close to destroying it. Adorno wrote that "art revolts against its essential concepts while at the same time being inconceivable without them." THEODOR W. ADORNO, AESTHETIC THEORY 465 (Gretel Adorno & Rolf Tiedemann eds., C. Lenhardt trans., 1984) (1970). Has the contemporary revolt against the category of art been so successful that it has destroyed art's "essential concepts"? Has contemporary art turned "art" into a category that is "inconceivable"?
219. Eliminating moral rights would have the virtue of treating art like other objects and thus would comport with a central thematic concern of contemporary art. It would also free art from the control of the artist. But new problems would arise: most prominently, this "solution" would merely shift control to buyers and to the art market. (For those artists who waive their moral rights, which few in fact do, Landes, supra note 37, buyers already make these decisions.) Eliminating moral rights would expose decisions about destruction or preservation to the market, which is notoriously bad at predicting which art will stand the test of time. See supra notes 200, 209 and accompanying text. The overheated current art market, in which contemporary artists outsell old masters, seems particularly unsound to many critics. See, e.g., supra note 200 and accompanying text (describing price disparity between contemporary works and old masters). My goal in this Essay has been diagnostic rather than prescriptive. Nonetheless, my diagnosis points to how difficult any solution to the problem of moral rights will be. If we accept my argument, that preservation as achieved through moral rights laws imposes a cost on artistic innovation, then how should we craft a set of rules that strikes the proper balance between the conflicting goals of artistic preservation and innovation? It is particularly hard to answer this question if you start from the premise, as I do, that no one-certainly not judges, but not even art critics or the art market-knows what art will stand the test of time.
220. See MARC J. GOTLIEB, THE PLIGHT OF EMULATION (1996).
221. Hirst was not the first to display trash as art. Gustav Metzger did it in 1960. Nor was Hirst the first to have his trash/art thrown out-Metzger achieved that too. See Sam Jones, How Auto-Destructive Art Work Got Destroyed Too Soon, GUARDIAN, Aug. 27, 2004.
222. Gewen, supra note 196.
223. Merryman, supra note 5, at 1041.