Visual Artists Rights Research Articles

The Right to Destroy

Do you have the right to destroy that which is yours? This paper addresses that fundamental question. In contested cases, courts are becoming increasingly hostile to owners' efforts to destroy their own valuable property. This sentiment has been echoed in the legal academy, with recent scholarship calling for further restrictions on an owner's right to destroy cultural property. Yet this property right has received little systematic attention. The paper therefore examines owners' rights to destroy various forms of property, including buildings, jewelry, transplantable organs, frozen human embryos, patents, personal papers, and works of art. A systematic treatment of the subject helps support a qualified defense of the right to destroy one's own property. For example, an examination of American laws and customs regarding the disposition of cadaveric organs helps one understand and weigh the expressive interests that prompt people to try to destroy jewelry via will. Similarly, an examination of patent suppression case law points toward a form of ex ante analysis that has been de-emphasized in opinions involving the destruction of buildings and other structures. An analysis of cases involving the destruction of frozen human embryos may shed light on creators' rights to burn unpublished manuscripts or works of art. And collectivist theories of free speech may help explain why the Visual Artists Rights Act sensibly prohibits the destruction of paintings by living artists, but not Old Masters. In advocating a more unified treatment of destruction rights, the paper argues that greater deference to owners' destructive wishes often serves important welfare and expressive interests. The paper also critiques existing case law that calls for particular hostility toward will provisions that direct the destruction of a testator's valuable property. Courts and commentators have not given particularly persuasive justifications for restricting testamentary destruction, and the paper proposes a safe-harbor provision whereby sincere testators who jump through certain hoops during their lifetimes can have their destructive wishes enforced.

Art Conservation and the Legal Obligation to Preserve Artistic Intent

This article explains the basic principles of the Visual Artists Rights Act (VARA) of 1990 and how the new rights it provides to artists may affect the work of conservators. To aid in this explanation, a brief overview is provided on the evolution of copyright law in Western legal thought and the development of moral rights. After a general background on the adoption of moral rights in the United States through VARA, the article addresses the specific provisions of this statute and their potential impact on the work of conservators. Because an artist may seek other legal remedies against a conservator in addition to VARA if restoration of a work is not successful, the article also looks at the existence of “VARA-like” protections in state and federal laws, the effect of VARA on similar preexisting state provisions, and the possibility that VARA has rendered such provisions invalid. The article concludes with some recommendations to help conservators to avoid incurring legal liability.

Copyright. Visual Artists Rights Act. Second Circuit Holds Sculpture to Be Unprotected "Work for Hire." Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995), Petition for Cert. Filed, 64 U. S. L. W. 2371 (U. S. Feb. 29, 1996) (No. 95-1400)

Copyright. Visual Artists Rights Act. Second Circuit Holds Sculpture to Be Unprotected "Work for Hire." Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995), Petition for Cert. Filed, 64 U. S. L. W. 2371 (U. S. Feb. 29, 1996) (No. 95-1400)

Bob Kastenmeier and the Legislative Process: "Sui Generis" and Proud of It

unique position to observe the Chairman up close. From this experience, I can only admire a man whose contributions to intellectual property are unprecedented and pervasive. Reflecting upon Kastenmeier's achievements, I am reminded of the celebrated English architect Christopher Wren. He rebuilt the churches and public buildings of London after the Great Fire of 1666 and now lies buried in a simple grave in St. Paul's Cathedral, his masterpiece. After Wren's death, admirers approached his son and asked what kind of monument should be built to commemorate his father's legacy. Scoffing at the notion, his son instead installed a small plaque in St. Paul's near his father's grave, with the following inscription: Si monumentum requirs, circumspice (Reader, if you seek his monument, look around you.). Today, we have only to look around us to see the monuments to Bob Kastenmeier. I mention only a few: U.S. adherence to the Berne Convention,' the Satellite Home Viewer Act of 1988,2 the Visual Artists Rights Act of 1990,3 the Semiconductor Chip Protection Act of 1984,4 the 1976 revision of the Copyright Act,5 and something Christopher Wren would appreciate, the Architectural Works Copyright Protection Act of 1990.6 Kastenmeier's legacy, however, goes beyond the statute books, and this is my principal theme: by eschewing dogma and philosophy and by virtue of his

The Artist's Case for Droit Moral and Droit de Suite Continues

In September 1986, Senator Edward Kennedy of Massachusetts sponsored a bill, “The Visual Artists Rights Amendment of 1986” which was not unlike many others that had been introduced into the United States Congress in recent years. ft proposed toexpand the Copyright Act of 1976 by granting artists certain control over their works beyond that currently secured under Copyright, contract or tort protections, as well as the ability to share in the proceeds of future (secondary) sales of the work. Although the bill never saw the light of legislative action, the issues it addressed are very much in the forefront of current art and law concerns.