Best of 2010: Moral rights in Massachusetts

First published April 12, 2010.

Lee Gesmer reported last month on a pretty important decision in copyright law:  A First Circuit ruling applying the Visual Rights Act, which–well, Lee says it very well himself, actually:

At the end, he had only his "honour"

Mass MoCA is the Massachusetts Museum of Contemporary Art Foundation a contemporary art museum in North Adams, MA.  Christoph Büchell is a Swiss “installation artist.”  Think very large, very avant-garde.  The New York Times describes his work “dense, fraught creations, which compress masses of material and objects into historically charged labyrinthine environments through which viewers walk, climb and crawl.”   Wow.  Sounds just right for good old, left-leaning western Mass.  Not.VARA is the Visual Artists Rights Act, a section of the U.S. Copyright Statute that gives grants artists “moral rights.”   For example, part of the law provides that the author of a “visual work” has –

the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation

The First Circuit held that the Museum violated this right when, after installation of a work that called for, among other things, according to the Times, “a burnt-out fuselage of a 737 airliner” it displayed the work without the artist’s consent.   That is, the artist stormed off after artistic differences with the museum, and  museum prepared to present the work, entitled “Training Ground for Democracy,” like or not.  Büchel sued under VARA, lost in U.S. District Court, but prevailed in the First Circuit, which is (I suppose) more sympathetic to moral rights than U.S. District Court Judge Ponsor had been.

Hm.  Sometimes I wish I had a scorecard to figure out how libertarians, and or mere free-market magic hand guys like me, are supposed to come out on “moral rights.”  I’ll say this much:  For a country that doesn’t speak a Romance language, the idea of a federal statute that protects “honor” is problematic.  And after all, if you buy the thing, can’t you just do whatever you want with it?  If you want to limit my right to do that, then by gum let’s bargain for such a limit.  (I guess that’s the difference between a “Judge Ponsor” and a “Judge Posner“!)

And yet I too have some sympathy, as a non-visual artist (i.e., “a face for radio”) who has tasted the bitter experience of having his own “work made for hire” simply put under another person’s name by the copyright holder (and no, the fact that it was a federal judge’s name, and the ABA that did it, did not make it any less bitter) when the collective work in question was reissued in a second edition.

I have sympathy.  I didn’t say I think it’s ok, ok?  I mean this is America.  We don’t need copyrights on our money and we don’t need statutes to protect the “honor” of creative types!  I think.  In fact if you read too much into “sympathy” I’ll accuse you of dishonor!  And we can duel.  Pistols at dawn!

Ah, yeah.  Well, this should be interesting, this moral copyright visual honor stuff.  Not that there’s anything wrong with that.

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Author:Ron Coleman

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