Eye on IP

Vol. No. 2009 - Issue No. 2
June 2009

PROTECTING AND RESPECTING AN
ARTIST'S "MORAL RIGHTS"

Suppose you own or purchase a building that includes a work of art, such as a mural painted on the wall or statuary incorporated into the structure. Or, suppose you own or purchase a freestanding sculpture or a painting. You might think you can do anything you want with the building and the artwork. You could be in for a surprise.

Though you may own the building or artwork, the artist retains some rights to the work. An artist has three types of rights with respect to a work of visual art, e.g., a painting or sculpture:

• The proprietary right, which is the right to ownership of the physical object itself.
• The copyright, including the rights to display, reproduce, and distribute copies.
• The moral rights (from the French "droit moral"), types of which have been recognized in the U.S. since 1990, and in

The artist transfers the proprietary right when he/she sells the work but retains the copyright and moral rights.

Moral rights have nothing to do with morality. In this country, they include the rights of attribution - to be identified as the artist or remain anonymous - and the right of integrity, which is the right to have the art maintained free of adulteration, distortion, mutilation, and in some cases, destruction. If these rights are violated, the artist, or in some cases the artist's heirs, can sue for damages. These rights have been recognized in Europe for more than 100 years, but not until the U.S. passed the Visual Artist's Rights Act of 1990 (VARA), did the U.S. recognize such rights.

If the work of art qualifies under the California or federal law, then it cannot be defaced, altered, or mutilated without the artist's consent, even if you own it. There are special rules for artwork incorporated into a building. If the artwork is removable, and the building owner wants to remove the art or destroy the building, the owner is required to give 90 days' notice to the artist so the artist can arrange to have it removed. Do not assume the artwork is not removable. Art conservationists can remove murals from buildings.

The Copyright Office in Washington, D.C. maintains a registry where an artist can register a work with reference to the building address, and owners can search those records to attempt to locate the artist. In our experience, few artists actually register their works with the Copyright Office, even though it is advisable for them to do so. However, we recommend building owners search those records when an issue about a work of art incorporated into a building arises.

An artist can waive his or her moral rights, but the waiver must be in writing.

When dealing with a work of visual art, we recommend that, when possible, you clarify in writing who owns the proprietary rights, what each party's rights are under copyright, and whether the artist agrees to waive his or her moral rights.

Sheldon Mak & Anderson PC has successfully represented artists in cases involving moral rights. We obtained a settlement of more than $1,000,000.00 for one artist. We are available to advise artists and property owners of their respective rights under the Copyright Act, VARA, and California law.

"Eye on IP" is a trademark of Sheldon Mak & Anderson. Information provided in the "Eye on IP" newsletter is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice or render a legal opinion.