Commercializing the Digital Canvas

Abstract

Over the past two decades, a series of trends in constitutional and intellectual property have significantly reshaped the impact of traditional intellectual property laws for the art community. Attribution of a work to the artist and protection of the integrity of a work from alternation are historical bedrocks of artistic protections, but those protections have been diminished for digital artists. The Visual Artists Rights Act excludes digital works from the definition of works of visual art, thus excluding these works from rights of attribution and integrity. At the time, rights of attribution and integrity were seen as quasi-trademark rights, and artists were protected under the Lanham Act. Since then, however, the Supreme Court has extended copyright’s preemption over trademark, undermining an artist’s ability to have non-contractual protections for the artist’s identity and integrity in a work. In addition, a second trend within the digital environment has created additional tensions for artists whose works include celebrities, athletes, or other members of the public. The Supreme Court has made the clear determination that video games are entitled to complete First Amendment protection, placing those works in the same category as film, publishing, and works of art. Despite this free speech protection to the medium, a series of inconsistent decisions among state and federal courts have made unclear when the use of a person’s likeness in a video game—or video art instillation—would constitute a violation of the person’s rights of publicity.