Article by Barbara A. Spellman and Frederick Schauer
The motivation for this Article arises out of recurring questions about the nature of ownership rights in art. Is a work of art like a sack of potatoes, such that what we do with our potatoes is, largely, our own concern? With few exceptions, the law is singularly unconcerned with whether we eat the potatoes, give them away, save them for a rainy day, or paint them to resemble cartoon characters. Or is a work of art like a historic building, where the rights of ownership are severely constricted by laws regulating, for example, whether (if at all) I may destroy it, how (if at all) I may modify it, and even which uses are permitted and which are prohibited?
In many civil law countries, ownership of works of art has traditionally been restricted by what are known as the moral rights of artists. When moral rights laws are in place, an artist may sell me a painting, but even after the sale, it remains part of the artist's patrimony, and I am not free to destroy, mutilate, or modify it. It may be my painting, but in important ways, it remains the artist's painting as well.
Artists' moral rights have not traditionally been part of the legal landscape in the United States and other common law jurisdictions. So although in many civil law countries the artist's moral rights include the so-called right to integrity—the right of artists to prohibit even purchasers of a work of art from materially modifying the artist's artistic creation—historically no such right existed in the United States. An example of the traditional American approach, and the traditional American rejection of artists' rights, occurred in 1958, when Alexander Calder created, under a commission from a private collector, a black and white mobile that was to be hung from the ceiling of the Allegheny County airport in Pittsburgh, Pennsylvania. Shortly after taking possession of the mobile, the Airport Authority came to the conclusion that it could improve on Calder's artistic vision. The Airport Authority then immobilized the moving parts of the mobile and also installed a motor so that the now immobile mobile could move in one piece. Finally, they repainted the mobile in green and gold, so as to match the new color scheme of the airport. Not surprisingly, Calder was incensed, and he seriously investigated the possibility of bringing a lawsuit to preserve his original artistic conception. But under American law at the time, an owner could do what he wanted with what he had purchased. Calder eventually and grudgingly followed the advice of his lawyers and refrained from bringing what would plainly have been at the time a futile lawsuit.
A similar outcome was seen in the well-known contretemps regarding the sculptor Richard Serra, but here the issue did wind up in court. Under a U.S. federal program to fund and commission public art on federal property, Serra in 1981 created a 120-foot-long and 12-foot-high metal sculpture entitled “Tilted Arc” for Federal Plaza in New York City. In the years after the sculpture was erected, many workers at Federal Plaza complained that the work interfered with their passage across the Plaza and detracted from their use and enjoyment of the Plaza in general. Moreover, the sculpture had over time developed what Serra described as a “golden amber patina” but what others called “rust.” After a public hearing, the General Services Administration decided to remove the work. Serra brought suit, but the federal courts determined that because Serra sold the work to the United States General Services Administration, he retained no enforceable rights under American law. Shortly thereafter, the sculpture was dismantled and sold as scrap metal.
Things began to change in 1988, however, when the United States signed the 1971 Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), and even more in 1990, when Congress passed the Visual Artists Rights Act (VARA), which moved the United States closer to Western Europe in its recognition that a work of art may be more like a historic building than a sack of potatoes. Now, when we buy a painting by Jasper Johns, we are in part the owner, but in part we are also the steward of Johns's artistic reputation and the country's (and the world's) artistic heritage. Now, under VARA, visual artists retain certain residual rights in their art after they sell it. For any “work of visual art,” defined as “a painting, drawing, print, or sculpture, existing in a single copy[, or] in a limited edition of 200 copies or fewer that are signed and consecutively numbered” by the artist, the artist has the right to “claim authorship,” to “prevent [the] use of his or her name” on a work of visual that the artist did not create, and to “prevent any intentional distortion, mutilation, or other modification of that work.” In addition, VARA provides that for works of “recognized stature,” artists have the right not only to prevent the aforesaid “distortion,” “mutilation,” or “modification” of the work, but also its “intentional or grossly negligent destruction,” even by a purchaser of the work.
The protections offered by VARA are comparatively new as property rights go, and their strength and scope remain contested. This degree of uncertainty and controversy should come as little surprise, however, because fundamental contestation characterizes many contemporary property law issues. As scientific advances have created potential new forms of property, for example, and as technological changes have made online copying and distribution easier, creators of online content and newly valuable goods have insisted that the content is their property, just as their vociferous opponents have argued that thinking of that content and many of those scientific advances as property is a misplaced metaphor. And controversial Supreme Court cases such as Kelo v. City of New London have heightened the attention to the extent to which property ownership is consistent with extensive regulation and with the susceptibility of that property to an involuntary taking.
It is hardly inevitable or universally desirable that law be designed to match people's prelegal preferences; if that were the case, we might have no tax laws at all. Yet such a correlation between legal regulation and prelegal behavior is often important if we expect new forms of legal regulation to garner a substantial degree of public acceptance. As with Karl Llewellyn's attempt to conform much of the Uniform Commercial Code to existing merchant practices, laws that reinforce existing understandings have a much greater likelihood of taking root. Given the comparative newness in the United States of any conception of artists' moral rights, therefore, we hypothesize that enforcement and interpretation of artists' rights in general, and VARA in particular, will be more effective insofar as such enforcement and interpretation remain in the vicinity of the existing beliefs of citizens who may now know little of the relevant law. Additionally, we hypothesize that the degree of initial acceptance of VARA, and the degree of initial effectiveness in its enforcement, may be influential in the long run in securing more widespread acceptance in the United States of rights that have long been taken for granted elsewhere.
With these hypotheses in mind, we performed two experiments designed to examine people's beliefs about the types of issues encompassed by VARA. In the remainder of this Article, we describe our experiments and findings and then conclude by exploring the possible implications of our results.
About the Author
Barbara A. Spellman. Professor of Psychology and Professor of Law, University of Virginia.
Frederick Schauer. David and Mary Harrison Distinguished Professor of Law, University of Virginia.
Citation
83 Tul. L. Rev. 661 (2009)