Only explicitly adopted moral theory solves.

American Moral Rights statutes will not pose a challenge to the conventional, purely economic, account of American intellectual property law if a satisfactory account of those statutes can be given based solely upon economic considerations. Providing such an account has been tried, most prominently in a thorough and rigorous paper by Henry Hansmann and Marina Santilli, who acknowledge that non-economic considerations may have provided some motivation for these laws, but suggest that “much of the incentive for adopting moral rights legislation derives from other considerations,”49 primarily externality concerns familiar in law-and-economics analyses. This Part explains why, in light of the logic of the economic argument and the actual provisions that we observe in Moral Rights statutes, any attempt at economic reduction of these statutes is unlikely to succeed. We can begin by noting, with Hansmann and Santilli, that if granting artists a right of integrity is in fact an economically “reasonable exception” to property law’s “general prohibition on servitudes in chattels,” that must be because current owners “can seriously affect the interests of the artists who created those works or of other persons.”50 We also can borrow Hansmann and Santilli’s succinct enumeration of the three relevant interests that current owners of an artwork can seriously affect: First is the artist’s own “pecuniary interests” in the sales price that his or her future works might bring. Because “each of an artist’s works is an advertisement for all of the others,” harm that an owner does to one of an artist’s works decreases market demand for that artist’s future work.51 The resulting decrease in the prices at which the artist could sell future work would diminish both the artist’s potential wealth and the artist’s incentives for producing new work. Second is the pecuniary interest of previous purchasers of the artist’s work. Diminishing the artist’s reputation by altering one of the artist’s existing works lowers the price that collectors could get by reselling the artist’s other already completed works.52 Third is the public-at-large’s non-pecuniary interest in preserving works intact as “important elements in a community’s culture” or as “the embodiment of an idea.”53 Altering works necessarily sets back this interest. Because a current owner who decided to alter a work in his or her possession would personally bear only a small fraction of these costs—that is, because the alteration would have few or no negative effects on the current owner, but could have substantial negative externalities—owners might make such alterations more frequently than is socially optimal.54 Since concerns about externalities are a staple of economic analyses of law, an economic explanation for Moral Rights laws might therefore seem natural: giving artists the right to prevent post-sale alterations of their works promotes efficiency by limiting undesirable externalities.55 Thus, for example, VARA prohibits both reputation-harming alterations and the destruction of visual artworks that are culturally significant.56 If we examine this line of reasoning more closely, however, its persuasiveness vanishes. There are several general concerns with the plausibility of any account, such as Hansmann and Santilli’s, based on reputational externalities, and several specific concerns arise when we consider how well the account matches the principal features that we actually observe in Moral Rights laws. Let us start by considering the general concerns. If a key aim of Moral Rights law really is to maximize the aggregate market value of an artist’s artworks by elevating the artist’s reputation, thereby protecting the pecuniary interests of both the artist and owners of the artist’s works, logical symmetry would suggest that just as artists are permitted to prevent alterations that owners would like, so too they should be permitted to make changes to their own artworks even after selling them, whether or not the owners approved, provided only that the changes increase the value of the artist’s reputation more than they inconvenience the owner. (A tacit assumption of this economic account is that artists are always the best judges of what effect alterations will have on their reputation; thus, artists alone can decide what changes to prevent or allow.) Yet, of course, giving artists such a right to make changes would be quite startling.57 Such a right is not a standard element of “Moral Rights,” and no American law gives artists that right. In fact, I am aware of no law anywhere in the world that gives artists such a right.