Uniformity among state moral right laws solve.

examining moral rights in the united states,” U.S. Copyright Office, April, Available Online at https://www.copyright.gov/policy/moralrights/full-report.pdf, Accessed 07-13-2024) JM

4. State Moral Rights Laws

At the time of the BCIA, eight states had recently enacted specific statutes “protecting the rights of integrity and paternity in certain works of art.”685 California led the charge by enacting the first state statute that explicitly protected the moral rights of authors of works of fine arts.686 Soon after its enactment, the California Art Preservation Act of 1979 was labeled as “a positive step for the protection of some moral rights for some creators.”687 Although there was criticism that the statute was narrower than European moral rights statutes and Article 6bis of the Berne Convention, it was nonetheless heralded by many as a much needed “coherent and comprehensive set of protections for the patchwork relief traditionally provided by the courts.”688

Then-Register of Copyrights Ralph Oman noted that three basic models of state moral rights law existed at the time the BCIA was being considered—the preservation model, the moral rights model, and the public works model.689 The preservation model sought to provide authors with attribution and integrity rights, while also protecting works from destruction.690 The moral rights model provided authors with integrity and attribution rights, without protection against destruction.691 State statutes falling in the public works category were more related to state police power and were used to protect certain works, such as antiquities and works of historical value, from vandalism.692 Which model a state employs affects which art and artists are protected, as well as the scope of that protection.

In the years after the BCIA’s enactment, several other states enacted moral rights legislation.693 State moral rights still generally fall into the three categories that Oman articulated in 1989. In addition to Oman’s three models, states have also enacted legislation establishing minimal attribution rights for authors engaged in transactions with art dealers.694 Since the time of the BCIA and VARA, no new state statutes have been enacted that fall under the preservation model. The existing preservation model statutes are unique because they not only recognize an author’s personal attribution and integrity interests, but also the importance to the “public interest in preserving the integrity of cultural and artistic creations.”695 The need to protect the public interest manifests in provisions that prevent the destruction of works.696 Similar to preservation model statutes, the list of traditional moral rights statutes has remained the same except for the addition of one new statute.697 Accordingly, the majority of new statutes fall under the public works model698 as well as the new model covering art sales.

By their nature, state moral rights statutes are not uniform, but there are certain general provisions that are common amongst many of the statutes. First, the most common theme, and often critique, is that the statutes only apply to works of fine art. 699 This limitation was first criticized soon after the California Art Preservation Act was passed in 1979; the plethora of statutes enacted since have replicated this limitation. 700 Second, the rights tend to be waivable.701 Third, the rights do not usually apply to works created under work made for hire arrangements or works that are created under contract for advertising or commercial use.702 The limitation for advertising and commercial uses can often be overcome by contract.703 Fourth, the attribution right is generally accompanied by a right to disclaim authorship, but it must be for a “just and valid reason.”704 Fifth, with the exception of some of the statutes, the destruction of a covered work is generally permissible,705 although alteration is prohibited in those states that assign an integrity right.706

Despite the above commonalities, state moral rights statutes also vary in many aspects, most notably in the form of protections afforded, when those protections kick in, and the types of works protected. When Congress determined that the United States met its Berne article 6bis obligations to provide attribution and integrity rights to authors, it cited eight existing state statutes in its rationale.707 At the time, those eight statutes all provided some form of attribution and integrity right. State moral rights statutes subsequently enacted have generally provided more limited rights, establishing attribution rights rather than integrity rights. While this is not the case with all post-BCIA statutes, the trend has been to establish only attribution rights for artists in connection with display in public buildings or art sales.708 Relatedly, an artist’s ability to enforce his or her moral rights varies greatly state by state. For example, some states attach moral rights to artists’ works broadly regardless whether the work was created privately by an artist or commissioned by the state.709 Others only extend protection to works commissioned by the state or displayed in state buildings710 or to artwork involved in sales or commissions.711 Lastly, while state moral rights statutes only protect works of visual art, there is no uniform definition of the term. Most of the statutes define covered works as “works of fine art,” but the specific definitions vary greatly. Some enumerate long lists of examples712 and others simply refer to only visual and graphic works including, but not limited to, paintings, drawings, or sculptures.713 Some states also expressly exclude works that are included in other jurisdictions, like film and video.714 Understandably, the variety of state statutes can be difficult to navigate, and this system of inconsistent state laws only protects a thin subset of works.

State moral rights laws provided the most explicit expression of statutory moral rights in the United States until the passage of VARA in 1990. VARA amended the Copyright Act’s preemption provision (section 301), providing that this federal statute preempts “all legal or equitable rights that are the equivalent to” the attribution and integrity rights conferred by VARA with respect to “works of visual art to which the rights conferred by section 106A apply.”715 According to the legislative history, “[a] single Federal system is preferable to State statutes or municipal ordinances on moral rights because creativity is stimulated more effectively on a uniform, national basis.”716

Subsection 301(f) outlines several exceptions to VARA’s preemption authority including that the provision does not apply to causes of action commenced before the effective date of VARA (June 1, 1991).717 For example, in Pavia v. 1120 Avenue of the Americas Associates, the U.S. District Court for the Southern District of New York found that the plaintiff’s claim regarding the display of his work in an altered form under New York’s Artists Authorship Rights Act (AARA) was not preempted by VARA because the improper display started in 1988, before the effective date of the federal legislation.718 VARA also does not preempt any activities that violate legal or equitable rights that are not “equivalent” to any of the rights conferred by VARA with respect to “works of visual art.”719 Activities violating legal or equitable rights that extend beyond the life of the author are also not preempted under this provision.720 Thus, post-mortem rights for artists under state laws that address misattribution, mutilation, or destruction of works of visual art likely remain available to eligible parties.721

For determining when VARA preempts a plaintiff’s state law claim, the courts follow the standard for determining preemption under the broader Copyright Act. For preemption to occur, the work of authorship in which rights are claimed must fall within the subject matter of copyright; and the state law must create legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright.722 For example, the U.S. District Court for the Southern District of New York in Board of Managers of Soho International Arts Condominium v. City of New York held that an artist’s claim under New York’s AARA regarding the destruction of a mural on a building was preempted by VARA.723 The court found that the mural falls within the subject matter of copyright and that the integrity rights under AARA are equivalent to those under VARA. While the artist argued that the rights under AARA are not equivalent to VARA’s rights as AARA does not limit the right of integrity to “works of recognized stature” as under VARA, the court disagreed stating that preemption can occur even when the state statute is broader.724 The court further emphasized that VARA and AARA have nearly identical provisions regarding the right of integrity; and thus the rights under AARA are “equivalent” to VARA’s rights for the purposes of the preemption analysis.725

The limited availability of relevant case law leaves many questions unanswered regarding the drafting and interpretation of VARA’s preemption provision. For example, it is unclear whether the phrase “with respect to works of visual art to which the rights conferred by section 106A apply” would permit claims concerning works that do not meet section 101’s definition of a “work of visual art” or would preempt any claims relating to “pictorial, graphic, or sculptural” works. The legislative history states that “works that are not covered by the law, such as audiovisual works, photographs produced for non-exhibition purposes” would not be preempted.726 If claims for these types of works are not preempted, then works that do not meet the limited definition of a “work of visual art” may be able to claim potentially greater remedies under state law.727