The reticence with which American courts have enforced the moral rights of artists has not dampened the need to clarify them, however. We are left then with too few successful artists and artworks. There are no guarantees that the invisible hand of the art market will reward artists for the years of hard work and dedication that their artistic practice requires. But the arts economy has too often produced unsatisfying results. American copyright has historically favored economic rights as opposed to the personal rights of artists. The personal rights of artists have developed in a halting and unsatisfying way, largely because the law rests on stale notions of how creativity works. Of course as Professor Alfred Yen has argued in contrast: “Authorship is therefore not the creation of works which spring like Athena from the head of Zeus, but the conscious and unconscious intake, digestion, and transformation of input gained from the author’s experience within a broader society.” Unfortunately, the law still rests on the earlier, romanticized myth of the Renaissance artist. The myth tells us that Renaissance masters created works of breathtaking beauty and the rest of the mass of artists and future generations are left to imitate and recreate. As English Professor Martha Woodmansee points out, the way that we see authorship today is a product of the Western European view during the Renaissance that authors were either craftsmen who mastered the tasks put before them for the “cultivated audience of the court” or may have been “inspired” by external forces. Vasari’s myth-building has left us with a rather warped view of the act of creation. A better culprit might be Giorgio Vasari, who wrote the biographies of art masters and in so doing helped invent the idea of the Renaissance. But the fault probably should not lie with them. Other Allied Personal Rights of ArtistsĬourts and policymakers do not really seem to understand how art gets made. Contemporary or Boundary-Challenging Art Does Not Artwork of Recognized Stature Receives Heightened Protection Under VARA VARA Protects an Artist’s Integrity Against Intentional Acts VARA Grants Limited Rights of Attribution Moral Rights Recognized Under the Visual Artists Rights Act Moral Rights in the United States Are Underdeveloped Artists and Their Rights in the Age of Copyright This trend may be reversing, and it may finally be time that these personal rights of artists gain ground. Leading to a situation where, even though Congress has enacted the Visual Artists Rights Act of 1990, which guarantees rights for artists, these rights are relatively unknown and underutilized. This difficulty stems from the hesitancy in America to fully embrace the personal nature of many rights of artists and authors. With respect to artists and authors, American law has a tendency to fall short of solving problems directly and instead uses complex, cumbersome solutions to problems other nations have met head-on. It erases many of the well-intentioned and useful rights that artists enjoy in international and continental European systems. This fundamental error ends up substantially diminishing the rights artists can vindicate in the United States. American approaches to moral rights too often focus on the limited property rights of artists at the expense of the broader interests artists have in their creations.
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