October 1, 2010

Protecting Intellectual Property "In Progress"

Nathan Murphy, University of Connecticut, has published Thème Et Varaations: Why the Visual Artists Rights Act Should Not Protect Works-in-Progress, at 17 UCLA Entertainment Law Review 110 (2010). Here is the abstract.

Many countries recognize "moral rights," which allow artists some level of control of their art after it is sold, for example by guaranteeing that their work’s authorship is acknowledged and that it cannot be modified without their permission. In contrast to Europe, where they have long existed, these rights have only been broadly recognized in American law since 1990, when Congress enacted the Visual Artists Rights Act (VARA).

Although other parts of VARA have received extensive scholarly attention, one question that has been essentially overlooked is whether VARA applies to unfinished works of art. This is surprising, because it has been central in some of the most well-known VARA decisions. Until very recently, those opinions that could have weighed in on the issue have also avoided it. But given how often the issue arises, courts could not avoid it forever, and in late January of 2010, the United States Court of Appeals for the First Circuit decided in Massachusetts Museum of Contemporary Art v. Büchel, No. 08-2199, 2010 WL 297834 (1st Cir. Jan 27, 2010), that VARA fully applies to works-in-progress, from the first stroke of the artist’s brush onward.

Although some authors have rejected the doctrine of "moral rights" wholesale, that is most decidedly not the aim of this paper. Instead, its central argument is that VARA does not (and should not) apply to any works-in-progress, regardless of whether these works would (or should) be protected in finished form. Although this implies that that MassMoCA was wrongly decided, the argument is much broader. Indeed, the MassMoCA opinion’s cursory analysis belies the fact that the question of works-in-progress is very complex. Accordingly, this paper examines VARA’s statutory history, contemporary art theory, and the economic underpinning of the unique American moral-rights framework and concludes that they all suggest no VARA protection for works-in-progress. Further, this reading is (counterintuitively) most consistent with the statute’s aim to protect artists’ moral rights. Unlike with completed art, "moral rights" in unfinished works are protected existing legal remedies.
Download the article from SSRN at the link.

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