Many artists believe that the rights they hold over their works are unlimited. If you create a work of art, you expect to have total control over its use. However, many artists are shocked to find that in the U.S. their rights are uniquely limited. The Visual Artists Rights Act (“VARA”) of 1990 is the U.S. law that grants artists the rights of attribution and integrity. The right of attribution allows the copyright holder to determine whether or not their name is associated with their work. The right of integrity allows the artist to prevent any unwanted distortion of their work. These rights are known as “moral rights.”

In 1976, long before VARA was enacted, the British humorists known as Monty Python sued to enforce their rights of integrity when ABC edited some of their episodes for broadcast on U.S. television channels. In Gilliam v. ABC, Monty Python claimed that the way ABC was editing the episodes ruined the comedic timing of their work, and thus their integrity as an artist was harmed. Monty Python won the case in the Second Circuit. Would Monty Python have won their case in the U.S. after 1990? No, they would lose for a very obvious reason. VARA only covers a very narrow range of subject matter. Only the moral rights within paintings, drawings, prints, sculptures, and still photographic images are protected by VARA. The fact that VARA only protects certain visual works has proven problematic for many artists who have filed lawsuits trying to protect their integrity but who find themselves halted due to the narrow scope of VARA.

What if Monty Python brought a suit somewhere in Europe over their moral rights instead? They would likely have success, or at least have a cause of action. Unlike the U.S., most countries provide moral rights to all artists, regardless of the type of work they have created. The consequence of this is that when foreign artists, whose works fall outside of the scope of VARA, file a lawsuit against American Internet companies for violation of moral rights, the holdings vary dramatically according to which country has jurisdiction. When a moral rights case is held in a European country, and the court finds in favor of the artist, the holding is usually not upheld in the United States due to the lack of a wider subject matter covered by VARA.

VARA was created so that the U.S. could join the Berne Convention. However, as mentioned, the other Berne Convention countries have laws that provide morals rights protection to a wider range of copyrightable subject matter. The drastic variations in moral rights protection amongst Berne Convention members have made the issue of moral rights relevant to the U.S. Copyright Office. The Copyright Office announced this past January that it would be conducting a study regarding the U.S. approach to moral rights. As stated in the Office’s announcement, “[t]hese rights have a long history in international copyright law.” Given the impact of VARA’s narrow scope on large U.S. Internet companies, foreign artists, and the U.S. Copyright office, significant lobbying efforts will undoubtedly be seen in the future regarding possible amendments to VARA.

Carie Cartwright

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