The Challenges of Posthumous Moral Rights

Abstract

The vast majority of legal systems worldwide protect artists’ non-pecuniary interests in their works by providing them with moral rights. The length of protection of those rights, however, varies significantly. With minor exceptions, there are no posthumous moral rights in the United States. On the other hand, European countries provide posthumous moral rights—in some cases in perpetuity—but subject them to heavy judicial scrutiny. After introducing those rights, this chapter explores some of the normative and practical difficulties in extending them beyond the artist’s lifetime. In particular, posthumous moral rights are difficult to clear and to contract around. Those difficulties might limit creativity and foster stagnation. Legal systems, therefore, use a variety of legal rules to soften the impact of long-term moral rights. Those rules, however, increase the uncertainty that contemporary artists and art owners face. The benefits from posthumous moral rights are limited. It is debatable to what degree they protect the artists’ personality interests. Some, however, have suggested that they protect society’s interest in art preservation, but the chapter finds this rationale unconvincing. A system whose main task is to preserve artworks would likely look much different from moral rights and would focus on society’s interests and not those of the artists.