Abstract

U.S. visual artists, unlike creators of all other works, have a special form of intellectual property protection called “moral rights” for their artworks. Although moral rights are incorporated into U.S. law as part of the Copyright Act, they are a misfit within copyright law and within American intellectual property law more generally. European in origin and a centerpiece of the civil law approach to intellectual property enshrined in the Berne Convention, moral rights were only recently and grudgingly accepted in the United States. Taken from the French phrase droit moral, “moral rights” have been encoded in U.S. federal law since the enactment of the Visual Artists Rights Act of 1990 (VARA), an amendment to the Copyright Act. Unlike other aspects of the Copyright Act, which protects authors who create original literary, dramatic, musical, and artistic works, VARA protects only creators of “works of visual art,” a narrowly defined category described below. The justifications for moral rights and copyright law rest on two competing visions of intellectual property law. Historian Peter Baldwin has termed moral rights the “anti-copyright.”