Moral rights may also include the right to withdraw artwork from public view or to recall copies if the work has been subject to mutilation, distortion, damage, or an unauthorized alternation.  They may also encompass the right of the artist to determine when or if the work should be publicly displayed or published.  In some countries these rights may also encompass a right for the author/artist to remain anonymous.

Moral rights are not necessarily legal rights.  Rather, they are theoretical rights which may or may not be legal rights as well, depending upon the laws of the specific country.  Moral rights are usually credited with being developed in Europe, France specifically, and laws pertaining to them tend to be stronger in those countries than in the U.S.  This disparity between the United States and, particularly Europe, may be due both to cultural and legal differences.  The strength of moral rights in European countries likely developed from a focus upon the importance of the value of labor.  These countries’ legal systems, excluding England, are primarily based on civil law rather than common law and this may a factor as well.* 

In the United States moral rights are not traditionally recognized.  On a theoretical level moral rights are in conflict with the basic policy of the copyright and patent laws.  This is because the underlying purpose of copyright and patent is based upon the advancement of arts and science, rather than upon the labor of the individual.  Nevertheless, in order to comply with international treaties, particularly the Berne Convention treaty, the U.S. has established legal moral rights to a small degree. 

In the U.S., the Visual Artists Rights Act (VARA) is the primary law created to protect the moral rights of artists.  VARA applies only to certain visual art media, not all copyrighted matter.  It provides for rights of attribution, and to some extent, a right of integrity.  VARA is of limited value because of the constraint on the types of artwork protected, in regards to media, quantities and certain formalities.  Also in terms of protecting artworks from intentional destruction, VARA protects only those designated as famous (of “recognized stature”).  It does, however, provide broader protection from unauthorized mutilation, distortion or modification if such an act damages the reputation of the artist.  Additionally, although VARA rights do not transfer automatically with the sale of artwork, the rights may be waived by the artist in a sale contract, employment agreement or other written contract. See VARA.

Some individual states and localities have established moral rights laws as well.  These laws may provide alternative or more extensive rights to protect artwork. However it is unclear to what extent these state laws may be preempted (trumped) by VARA and other federal laws. In the case that a state law provision is in conflict with VARA, then VARA supercedes the other.  For an example of this type of state law, see the New York Artists Authorship Act.

Alternatives to Moral Rights

Because of the shortfall of protective laws that are specific to artwork, in the event that a work of art has been subject to some type of mutilation or damage or other objectionable action, creativity may be needed to achieve a resolution.  Alternative strategies may be used by artists and their lawyers in addition to a legal action based upon VARA or local moral rights laws, or separately when such are not applicable. 

Copyright laws may be used in conjuction to moral rights protection when the modified artwork has, in essence, created a derivative version of the original–thereby violating the artist’s exclusive right to create derivative works. In this type of situation, a lawsuit alleging infringement of the copyright may be filed against the person who modified the work without authorization of the artist.

An artist whos moral rights have been violated, may also consider a civil lawsuit based upon a legal theory other than moral rights.  Artwork and artist’s rights may be protected to some extent by laws pertaining to defamation (libel, slander, false-light, etc.), unfair competition (related to trademarks), and perhaps contract law in some circumstances.  Defamation may be a viable subject for a lawsuit if, for example, the artwork was mutilated in a way that may cause damage to the reputation and earning potential of an artist. In a situation where work is misrepresented as that of an artist who did not create it, a state unfair competition law may be applicable, in part to protect the consumer as well as the real artist's reputation. If there was a contract involved, or perhaps even a verbal agreement, a lawsuit based upon a breach of contract may be appropriate. Additionally, depending upon the circumstances, misrepresentation or fraud may be present if the work was sold, for example, with certain intentionally false assurances from the buyer. 

Local human rights laws that extend anti-discrimination requirements, and the assistance of local agencies, may be an option to explore if an unauthorized modification/false attribution targets a protected group, or if the artist is a member of a protected group and the action relates to this status.  (A protected group may be one that includes ethnicity, race, sex, ancestry, national origin, disability, sexual orientation, gender, age, citizenship status or others characteristics defined by federal or local laws).  If a business is involved, a complaint filed with the local Better Business Bureau (BBB) may at least initiate a discussion on the matter.

Adversaries to Moral Rights

Unfortunately for American artists, moral rights are opposed by some groups because they have a limiting effect upon who may claim physical control of artwork.  For example, landlords and local governments have tried, and largely succeeded, at moving or altering site-specific artwork.  In these cases, local laws have largely failed to protect the work and generally find that moving site specific work–even when the move causes destruction–is not a violation.   In terms of these types of legal challenges, the definition of mutilation or alternation may arise as a key issue when the specific law depends upon the question of whether the work has been, or will be, damaged in fact.  In court, an alteration to the work be determined to not be an actual mutilation, depending upon the specific situation and the language of the statute involved.  In addition, landlords may insert language into lease contracts that prohibits the physical attachment of artwork to real property.  (The word “artwork” may not be specifically expressed, but rather the text may generally prohibit attaching any objects to the property.) In such a situation, the installation of site specific work would likely be a violation of the lease contract and preservation of the work may not be possible. Also, art buyers, including their intermediaries, may oppose moral rights because they limit the actions that an owner can take with the artwork. Such limitations of moral rights may be included in the text of a sale contract and are enforceable against the artist if the document is signed by the artist. (See VARA, section on Transfer and Waiver for the requirements).

Politics and the Social Value of Art

The laws and legal structure of a culture reflect the values of the society, and unfortunately, visual art does not have the level of stature in the U.S. as it does elsewhere in the world. From an artist’s perspective, U.S. copyright and related property laws may not be sufficient to protect artwork and other interests. This is particularly relevent for early career and emerging artists who may have fewer resources to defend their work.  The interests of American artists would be better served by stronger legal moral rights.  Lobbying and petitioning for change is an option, but it is likely that complete moral rights for artists will probably only exist in this country when society more fully embraces the importance of the arts–as a pure cultural value that is separate from monetary interests and status.

In regards to future legislation, because federal law supercedes state and local laws, a strengthening of moral rights would ideally be established at the federal level.  However, state laws haven’t been entirely unsuccessful, and over time more information about their use and results will be posted on this website.