ART CONSERVATION AND THE LEGAL OBLIGATION TO PRESERVE ARTISTIC INTENT
ANN M. GARFINKLE, JANET FRIES, DANIEL LOPEZ, & LAURA POSSESSKY
2 HISTORICAL BACKGROUND
A copyright is a proprietary interest that vests in a creator from the moment an idea is fixed in a tangible medium of expression (Copyright Act of 1976). In the United States, copyright law is derived from Article 1, Section 8 of the U.S. Constitution, which delegates Congress “to promote the useful arts and sciences.” By this authority, Congress has statutorily granted proprietary rights in the expression of original ideas. At its core, copyright law is actually a group of five distinct rights. Artists (“authors” under the Copyright Act) and their estates, for 50 years after the artist's death, have the exclusive rights to reproduce, prepare adaptations (“derivative works”), distribute, perform, and display their original works (Copyright Act of 1976).
Generally, the scope of copyright protection for a work of art depends upon the circumstances surrounding the creation of a work and the country in which the work is created. Variations in the degree of proprietary interest exist largely because of variations in the underlying policy for having such rights. In the United States, the underlying premise of copyright law is largely economic: a proprietary interest is granted in a work as an incentive to promote progress and innovation. The notion is that if an artist knows that a defendable proprietary interest exists in a work of art and that he or she can prevent others from copying it, then the artist will be more willing to “publish” the idea or make the idea known to the public. On the other hand, limitations on copyrights are imposed because if no one could use preexisting concepts to develop new works for fear of intruding on another's proprietary interest, innovation would be inhibited. Copyright laws that imposed no time limitations would have the ironic effect of impeding the free flow of ideas. An example of a situation in which such limitations prove economically beneficial occurs when an employer hires an artist as an employee to create original art. When a work is created by an artist within the scope of the artist's employment, the work is a “work made for hire.” The artist retains no proprietary interest in a work made for hire; instead, the employer holds the copyrights. This limit on copyright ownership is considered beneficial because it would be unduly burdensome for an employer to conduct business if the employer needed to seek permission from every employee every time the employer sought to use a work.
While U.S. copyright law is based on economic incentives, other countries, such as France, Italy, and Germany, have a natural rights conception of copyright law whereby an artist has inherent or natural rights in a work because that work is an extension of the creator's personality. This natural rights theory is the basis of moral rights that emerged during the French Revolution and developed as an independent legal doctrine in the late 19th century. As exemplified in French law, a moral right is “an exclusive incorporeal property right [of the] author of an intellectual work … by the mere fact of its creation” (France, Law of March 11, 1957). Under French law, as in many countries, moral rights are recognized concurrently with economic rights but remain separate and distinct.
These “moral rights” are the centerpiece of VARA. Although VARA grants rights that Europeans have recognized for more than 100 years, these American moral rights have been grafted onto the economic conception of copyrights and are not recognized as inherent natural rights. Because the rights granted in VARA were drafted by Congress, they are only statutory and are therefore limited to the scope as defined in the statute.