Our first illustration dates from 1960, when one of the most respected modernist sculptors in the United States, David Smith, discovered that one of his sculptures had been vandalized. Smith’s embrace of polychrome surfaces was an especially distinctive feature of his work. The vandalized sculpture was a late 1950s composition entitled 17 h’s, made from welded steel and covered with six coats of cadmium red paint. The dealer who owned the sculpture was approached by a collector who liked the composition but not the color. Without the artist’s knowledge or consent, the dealer sent the sculpture to a foundry, had it stripped, and then consummated the sale. Smith was furious when he learned of the transaction, but the collector refused his offer to repurchase the sculpture and told Smith his work looked much better after he—the owner—had improved it. A key question for our purposes is — at this point, who should be credited as author of this sculpture? As far as Smith was concerned, he was no longer the creator of the work and would not have his name associated with the vandalized composition. He wrote angry letters to art magazines disclaiming the sculpture and protesting the vandalism.[1] This renunciation had no legal backing in the United States, however: since the collector owned the sculpture, he was free to abuse it.

When he wrote these letters, Smith was aware that if this kind of mutilation had taken place in many European and some Latin American countries, the artist could bring legal action against the collector. As early as the 18th century, French jurists began affirming that an artist’s interests in his or her creations were not just commercial. By the 19th century French courts were defining a series of rights for artist above and beyond pecuniary or commercial rights — the set of rights that came to be known as moral rights. In France and other civil law countries, these moral rights were conceived as the natural rights of creators [analogously, life, liberty and the pursuit of happiness are affirmed as natural rights of all human beings in the U.S. Declaration of Independence]. Like life, liberty and the pursuit of happiness, in European countries a creator’s natural moral rights are inalienable — they can’t be signed away.

Presupposed in assigning artists these special non-monetary moral rights is a conception of artistic labor as categorically different from other forms of labor. This difference is said to reside in the especially intimate bond between an artist’s personality and his or her creative product. Moral rights laws envision art works as almost literal extensions of the artist’s soul or creative being; since the artist's personality is embodied in the products of his or her labor, to attack or misrepresent the work is, in effect, to attack or slander a person (hence the term moral rights).

This very romantic conception of artistic labor ultimately justifies the legal argument that an artist’s moral rights to his or her work remain in tact even after the work is sold. In Europe there are several categories of artists' moral rights: the right to the continued physical integrity of the work even after sale; the right to seek compensation for the physical injury of false presentation of the work, even after sale; the right to have the artist’s name associated with his or her work and only his or her work; the right to withdraw the artist’s name from work damaged or falsely presented, and the absolute right to determine when an artwork is finished and ready for public exposure. In most European countries these moral rights apply to artistic creations in all media, not just the visual arts, and they are perpetual as well as inalienable. [2]

The history of visual artists moral rights laws in the United States can be divided into three historical phases. Copyright was provided for in the U.S. constitution, but for most of this country’s history, there was no legal framework for enforcing artists’ moral rights. [3] The first major historical landmark in the evolution of visual artists moral rights in the United States dates from 1979, when the state of California adopted the California Arts Preservation Act. This law affirms a visual artist’s right to the continued physical integrity of his or her work after sale and gives artists the right to sue to collect damages for intentional alteration, defacement or destruction of their work. The California statute had two major objectives: to protect the artist’s creative vision by prohibiting defamation — the physical misrepresentation of his or her work—and protecting public interest in the physical integrity of significant works of art. In 1983 the California law was amended to allow a non-profit arts group to act on behalf of deceased artists to preserve important artworks.

The second landmark in the U.S. moral rights chronology came about when the Artists Authorship Rights Act was passed by the state of New York in 1984. Whereas the California law stresses one component of the bundle of moral rights enjoyed by European artists, the right to the continued physical integrity of an artist’s work after sale, the New York law emphasizes another right — the right to disavow work that does not accurately represent his or her intentions. The New York law prohibits anyone from knowingly displaying the work of a living visual artist, or a reproduction of that work, if the work is displayed in an altered state that might harm the artist’s reputation. These state laws apply to activity within the borders of the respective states; nine other states also passed some form of moral rights legislation for visual artists in the 1980s. The Maine, Rhode Island, New Jersey, Nevada and Connecticut laws can be aligned with the New York model and emphasize artists’ right to seek damages if their work is publicly displayed in an altered or damaged state likely to injure their reputation. The Massachusetts, Pennsylvania and New Mexico laws follow the California precedent, stressing the artist’s right to the continued physical integrity of his or her work after sale and the right to collect damages for intentional destruction, whether or not the work was publicly displayed. [4]

Prior to the enactment of the federal Visual Artists Rights Act (VARA) in 1990, therefore, a patchwork of state laws was in place in the U.S. These state laws were preempted by VARA, except where state and federal law do not overlap. Many state laws differ significantly from VARA; for example, VARA can only be enforced by artists during their lifetime, whereas in California, Connecticut, Massachusetts, Pennsylvania and New Mexico, an artist’s moral rights can be enforced by his or her heirs for 50 years after the artist’s death. Some states cover a wider range of works of art than VARA. (The Pennsylvania law is very broad: it applies to “any original work of visual or graphic art of recognized quality created in any medium.”) Like VARA, some state laws apply only to work “of recognized quality,” but not all state laws are limited by this qualification. Today the legal rights of U.S. visual artists shift with the artist’s geographical location, and most artists are not informed about the discrepancies between state and federal laws.

Returning to the case of David Smith: today, under VARA, the artist could bring action against the collector who stripped his sculpture, and if the sculpture had been stripped in certain states, Smith’s heirs might be able to bring action against the collector if the vandalism was discovered within 50 years of the artist’s death. Even so, visual artists in the U.S. do not enjoy the same level of moral rights protection as their European peers, in part because moral rights are theorized differently in the U.S. than in Western Europe. In Europe a creator’s moral rights are viewed as inalienable natural rights: they cannot be waived (exceptions are made in European law, however, for work permanently attached to buildings). In the U.S. artists moral rights are not inalienable—VARA and all the state laws include a proviso “allowing” artists to waive their moral rights. [5] If a collector today asked an artist of David Smith’s stature to waive his moral rights so that his art could be resurfaced according to the collector’s specifications, the artist would undoubtedly decline. But many artists do not have the bargaining power of their big-name peers and are often reluctant to compromise a sale if a collector, or collecting institution, asks for a waiver. Requests for moral-rights waivers are being made with increasing frequency today, especially for artworks created on commission. Athena Tacha, the next panelist, who has enjoyed a long and productive career in the field of public art, addresses the hardship these requests currently pose for U.S. artists.

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