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The Artist as Brand: Toward a Trademark Conception of Moral Rights

Posted By Xiyin Tang On September 18, 2012 @ 9:07 pm In Art & Entertainment Law, Intellectual Property, Law Review Note, Yale Law Journal | No Comments

“Moral rights” is an eyebrow-raising phrase in American legal discourse. Tinged with strong personhood rhetoric—and frighteningly despotic in their very name—moral rights seem directly opposed to the economic justifications underlying U.S. intellectual property law. Yet, no longer relegated to European countries, moral rights landed on American shores over twenty years ago with the passage of the Visual Artists Rights Act of 1990, which gave fine artists the right to prevent the mutilation, alteration, or other unconsented-to modifications of their work. VARA’s defenders have focused on the strong, romantic connection an artist may feel with his work, while its detractors have aptly noted the depersonalized, highly mechanized state of art production today that renders art’s loftiness or uniqueness a thing of the past.1

And we have, in fact, left the Rothko Chapel.2

In recent years, the idea of protecting an artist’s “moral rights” has come to seem both outdated and overly romanticized when applied to the celebrity-type antics of the modern-day art world. Artworks are bought and sold like commodities and, like luxury goods, are displayed as markers of wealth, status, and class. Famous British artist Damien Hirst’s latest gambit—see his complete “Spot Paintings” in all 8 countries, and win a prize3—turns the idea of art into sport, with frequent flyer miles and the credit cards that rack them up as the only coded language insiders need know. If this is so, then why do artworks need special protection at all? Why not give their owners the right to destroy them, mutilate them, draw on them, paint over them? Isn’t that the sine qua non of ownership?

This Editorial and the Note it is based on attempt to rehabilitate American moral rights law (under VARA) in the face of a changing, ever-commoditizing art world, and, more broadly, in the age of consumer culture. I argue that it is precisely because art is traded like a commodity that we need moral rights, even more urgently, today. It is my hope to divorce moral rights from their personhood arguments and instead focus on the economic benefits accruing to the buying, viewing public. Borrowing many principles from trademark law, I argue that moral rights can in fact help with accurate source identification, reduce consumer confusion, and ensure efficient transactions. But first: why all the fuss and discomfort about moral rights?

I. A Brief Moral Rights Primer

Congress passed the Visual Artists Rights Act of 1990 in order to bring the United States into compliance with the Berne Convention, the world’s largest and most important copyright convention. Yet the U.S. was slow to join precisely because of apprehension about the moral rights provision. The enactment of VARA signaled an attempt to create a unified federal system of moral rights law adhering to the basic requirements of Berne, and yet it is by no means as comprehensive as many other European systems, which endow all authors—not just artists—with moral rights, as well.

VARA applies only to 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.”4 The Act encompasses three major rights: the right of integrity, or, “to prevent the distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation”;5 the right of attribution, that is, for an artist “to claim authorship of that work” and “to prevent the use of his or her name as the author of any work of visual art which he or she did not create” (including the use of his or her name as the author of the work in the event of a distortion, mutilation, or other modification);6 and lastly, for those works “of recognized stature,” the right to prevent “any intentional or grossly negligent destruction” of the work.”7

Since VARA’s passage, much of the subsequent legal scholarship has been pointedly negative. Many have denounced the Act as patently flouting U.S. copyright doctrine, which has traditionally recognized only economic, not personal, rights. Conversely, the justifications for moral rights are centered on the idea that art is somehow special, or sacred, and that only those who do not understand the elevated aspirations of an artist would deign to mutilate, destroy, or alter the work. This, in turn, has lead others, like Stephen Carter, to point out that the moral right is elitist, for it attempts to regulate property owners from acting in “uncultured” ways.8 Yet, as Professor Carter argues, “you cannot legislate culture.”9

Only one significant economic defense has been made of VARA, and, even then, the authors, Henry Hansmann and Marina Santilli, focus on benefits accruing to the author, like preventing reputational externalities.10 Yet to what extent can we expect moral rights to benefit the public at large? This is the question that I hope to take up in this Editorial and its accompanying Note.

II. The Contemporary Art Market: The Artist as Brand

The cult of the “authentic”—the yearning to have this work be stamped with the artist’s name, ensuring it an “original”—has more import in the modern age of celebrity culture and name-brand obsession than at any other moment in art (or consumer) history. This statement may seem counterintuitive given the nature of many of the artworks on the market today—works produced, for example, by artist’s assistants (like the aforementioned Hirst spot paintings) or that consist of store-bought materials like fluorescent tubes. Those unfamiliar with contemporary art might immediately think of its greatest forbear—Andy Warhol—and his “depersonalized” works of mechanically printed silkscreens reproducing household goods like Brillo boxes. Yet the Warhol example highlights an uncomfortable fact about the new so-called postmodern art: its dedication to ordinary object-ness and its very unordinary price tag. Thus, these fluorescent tubes or printed Brillo boxes are like consumer products and yet not like consumer products. The differentiating factor is none other than the artist’s stamp promising authenticity—that this is a “real X original.” In fact, that is the only differentiating factor. The “artist’s hand” may have been erased in the production of the object, but it resurfaces ever-more-markedly in the stamp bearing his signature. Or, as art historian Isabelle Graw emphasizes, though artists today might employ a staff of assistants, the work nonetheless “bear[s] the mark of the artist’s own studio/factory/enterprise.”11 Thus, “the artist’s signature remains intact, and this is the place where the promise of originality essential for art is upheld.”12

This emphasis on the artist’s signature as the validating mark of sponsorship or approval (terms that we will see again later in the trademark context) replaces traditional authentication methods that rely on validating the artist’s brushstroke or workmanship. Indeed, the erasure of such traditional authentication methods presents yet another exasperating truth about the new art objects of today: they are often easily reproducible, as the “original” itself may have very well been the product of a factory production line. Art historian Martha Buskirk has pointed out that it is precisely for this reason that moral rights may have gained in significance in the contemporary art world, for it serves as an external check on otherwise “inherently reproducible works.”13

It is in this sense that we may begin to think of the artist’s signature as functioning like something of a brand. Thinking of signature as brand name eliminates the oftentimes vexing issue of the artist not having created his own works. Instead, the signature functions as a seal of approval—a “signing off” on the work that instantly elevates a perhaps worthless object to superstar status. Just as trademark holders shore up good will (a term used in trademark law to denote favorable public regard), so too do artists—by exerting deliberate control over their bodies of work in order to create an identifiable brand for themselves. The artist-as-businessman model, best exemplified by big names like Jeff Koons and Damien Hirst, has become the new hallmark of contemporary art-making.

III. Comparing Moral Rights and Trademark Law

Yet if trademark law’s applicability to artworks has been partially eviscerated by the Supreme Court’s decision in Dastar v. Twentieth Century Fox14 (in which the Court conflated copyright and trademark rights for authors by suggesting that if the author does not have a right to the former, he does not have a right to the latter, either—a problem in cases where an artist is forced to transfer his copyright with the sale of a work), moral rights may fill that gap as the most effective tool for policing an artist’s brand against dilution and consumer-observer confusion. In fact, a brief comparison of moral rights and trademark law will reveal many more parallels than dissimilarities. This comparison is also instructive, for it suggests that moral rights, like trademark law, can in fact regulate a set of distinctly economic rights—both by decreasing search costs for art buyers and the art-viewing public, and by giving artists an incentive to create without having other actors unfairly reap the benefits of their good will.

If we reframe moral rights’ prohibition against unauthorized modification and attribution as not one of religious reverence for the artist’s “original intent” or “original meaning,” I believe that moral rights will not seem so despotic, nor so elitist. Section 43(a) of the Lanham Act prohibits the use of any combination of words, symbols, devices, or otherwise that would cause confusion as to the “origin, sponsorship, or approval” of the entity in question.15 Similarly, it would be misleading to label a work by “X artist” if it has been modified or mutilated and the artist himself did not willfully sign off on the modification, for now the artist is neither the “origin” of the product (i.e. the product did not come from his own studio or factory) nor professes to sponsor or approve it in any way. A modification or misattribution thus not only allows another party to reap the financial rewards associated with the famous artist’s name, but it also imposes negative externalities on the art consumer by increasing search costs (unfortunately, artists disavowing unauthorized copies is not a rare occurrence).

Furthermore, any objection that VARA acts in unprecedented ways upon an owner’s absolute right to do with his work as he pleases (change it, destroy it, or otherwise) is unfounded; trademark law, after all, has significantly limited these rights in cases of post-sale confusion. For example, courts have held that substantial alterations of an original product may no longer be sold with the original trademark in a series of high-profile “after market” cases involving reconditioned or altered watches and car accessories.

I do not mean, of course, to be blithe about the expansive rights VARA has awarded fine artists. VARA, like traditional copyright law, is nonetheless subject to fair use claims. And, like the Lanham Act’s requirement that an association between the trademark holder and the defendant’s product arise before an actionable claim accrues, the integrity right’s requirement that any distortion or modification be prejudicial to the artist’s honor or reputation suggests that not all modifications of an artwork will be actionable. Specifically, it is highly likely that a completely altered X original displayed without X’s name will not violate VARA.

As VARA is at least fairly new, it will be interesting to see how case law develops—especially as more and more artists find that trading off the strength of their name is the most valuable asset they have, and as our buying culture continues its obsession with name brands and celebrity caché.

Acknowledgements:

Xiyin Tang is a 2012 graduate of Yale Law School.

This article is based on Xiyin Tang, Note, The Artist as Brand: Toward a Trademark Conception of Moral Rights, 122 YALE L.J. (forthcoming 2012).

  1. Compare Roberta R. Kwall, Inspiration and Innovation: The Intrinsic Dimension of the Artistic Soul, 81 NOTRE DAME L. REV. 1945, 1986 (2006), and Lior Zemer, Moral Rights: Limited Edition, 91 B.U.L. REV. 1519, 1523 (2011) (arguing for a “stronger version of moral rights protection” that will “allow authors to realize their creative potential and contribute to social development”), with Amy Adler, Against Moral Rights, 97 CALIF. L. REV. 263 (2009).
  2. I use the Rothko Chapel, a great monumental work of architecture and painting meant to inspire awe, beauty, and the sacred, as an example of one of the last post-war works that embodied the artistic ideal of transcendence and the sublime. Soon, the heroism of Abstract Expressionism and its related movements would give way to Pop Art, Warhol, and commercial culture.
  3. See Carol Vogel, Two Art Fans Complete the Circuit of Hirst Spot Shows, ArtsBeat, Jan. 20, 2012, http://artsbeat.blogs.nytimes.com/2012/01/20/two-art-fans-complete-the-circuit-of-hirst-spot-shows/.
  4. 17 U.S.C. § 106(A) (2006).
  5. § 106(A)(a)(3)(A).
  6. § 106(A)(a)(1), (2).
  7. § 106(A)(a)(3)(B).
  8. Stephen L. Carter, Owning What Doesn’t Exist, 13 HARV. J.L. & PUB. POL’Y 99, 101 (1990).
  9. Id. at 101.
  10. Henry Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. LEGAL STUD. 101 (1997).
  11. ISABELLE GRAW, HIGH PRICE 25 (2009).
  12. Id.
  13. MARTHA BUSKIRK, THE CONTINGENT OBJECT OF CONTEMPORARY ART 4 (2002).
  14. 539 U.S. 23 (2003).
  15. 15 U.S.C. § 1125(a)(1)(A) (2006).

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