Visual Artists' Rights in a Digital Age

Source: Harvard Law Review , Jun., 1994, Vol. 107, No. 8 (Jun., 1994), pp. 1977-1994
Published by: The Harvard Law Review Association

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 VISUAL ARTISTS' RIGHTS IN A DIGITAL AGE*

"[I]t is almost obligatory ... to begin by invoking the 'communications

revolution' of our time, then to pronounce upon the inadequacies of
the present copyright act . . ..

BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT'

Over twenty-five years ago, Professor Benjamin Kaplan alluded

to the steady stream of commentary critical of the copyright system's
ability to respond to a constant progression of technological advances.2
That stream of criticism continues today.3 Modern commentators,
however, whether critical or laudatory of American copyright law,
often do not explicitly acknowledge the recent changes in American
copyright that attempt to harmonize the American system with that
of other countries. The globalization of the entertainment industry
has brought an increased interest in the various legal systems used to
protect intellectual property around the world,4 and the changing
contours of entertainment-product marketing have placed a premium
on attempts to harmonize intellectual property protection internation-
ally. As one commentator notes:

Suddenly, or so it appears, copyrights have been promoted from

pawns to queens on the global chessboard. Originally the province of
artists and their patrons, then growing into major industries, copyright
and [like doctrines] now preoccupy those conducting affairs of
state. In short, transmedia communications are a new empire,
and all of us are its subjects.5

* A revised version of this Note is currently under consideration in the 1994 Nathan Burkan
Memorial Competition, which is sponsored by the American Society of Composers and Publishers
(ASCAP).
1 BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT I (I967).
2 See also Leo J. Raskind, The Continuing Process of Refining and Adapting Copyri
Principles, I4 COLUM.-VLA J.L. & ARTS I25, 128 (I990) ("A cursory review of the crit
literature discloses a repetitive theme of dissatisfaction with the case law extension of traditi
copyright principles to new works."); cf. LYNN SPIGEL, MAKE ROOM FOR TV: TELEVISION AN
THE FAMILY IDEAL IN POSTWAR AMERICA I82 (I992) (describing America's profound amb
lence about technological change).
3 See, e.g., Pamela Samuelson, Modifying Copyrighted Software: Adjusting Copyright Doc-
trine to Accommodate a Technology, 28 JURIMETRICS J. I79, I88-92 (I988); see also Jason S.
Berman, The Music Industry and Technological Development: Are We Winning the War?, in
WORLD INTELLECTUAL PROPERTY ORG., WIPO WORLDWIDE SYMPOSIUM ON THE IMPACT OF
DIGITAL TECHNOLOGY ON COPYRIGHT AND NEIGHBORING RIGHTS 93, 94-95 (I993) [hereinafter
WIPO DIGITAL SYMPOSIUM] (indicating that these commentators often speak in terms of im-
pending disaster).

4 See I33 CONG. REC. SIO275 (daily ed. July 2I, I987) (statement of Sen. Lloyd Bentsen).
5 Alan J. Hartnick, Aidfor Copyright Lawyers in International Transactions, N.Y.L.J., Dec.
7, I990, at 5 (quoting RICHARD WINCOR, COPYRIGHTS IN THE WORLD MARKETPLACE (1990)).

I977

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 I978 HARVARD LAW REVIEW [Vol. I07:I977

Digital technology is the latest technological development to chal-

lenge the copyright system on an international scale.6 Many consider
digital technology a unique test of the copyright system because it
affects every aspect of a creative work: its creation, its dissemination,
and its protection. Works can be expressed in digital code, copied
perfectly, and distributed to the public on an enormous scale. As a
result, digital technology has changed the parameters of creative work,
giving rise to new techniques and making possible entertainment prod-
ucts that would have been unimaginable a short time ago.7
Some scholars believe that the American copyright system as orig-
inally conceived cannot cope with digital and other new technologies.8
Yet the civil law system prevalent in Continental Europe, with its
emphasis on artists' rights, has had more difficulty assimilating recent
technologies and unorthodox art forms than has the Anglo-American
common law system.9 The United States has, in recent years, im-
ported a number of doctrines from the civil law system, most notably
in the form of the Visual Artists' Rights Act of I990 (VARA).10 This
Note argues that, although the traditional Anglo-American copyright
system would be capable of embracing digital technology, VARA's
mixture of those theories with Continental-European moral rights
principles poses a challenge to this assimilation in the area of visual
art.
Part I of this Note describes the current and (foreseeable) future
applications of digital technology in the entertainment world and dis-
cusses the characteristics of digital technology and of visual art that
are relevant to copyright considerations. Part II explains the ration-
ales behind traditional American copyright, which encourages creation
for the benefit of the public, and Continental-European moral rights,

6 Digital technology is "the basic computer code that records all information . . . in a series
of zeroes and ones." Copyright World Duels With Digital Dilemma, CHI. TRIB., Apr. I, I993,
? 3, at 3.
7 This Note focuses on the entertainment products that can be characterized as visual art
and specifically those that will most likely be affected by digital technology. Other entertainment
media, such as music, literature, and dance, are profoundly affected by digital technology; an
extended discussion, however, is beyond the scope of this Note. For a taste of some of the
other areas in which digital technology has an impact, see Randy S. Kravis, Comment, Does a
Song by Any Other Name Still Sound as Sweet?: Digital Sampling and its Copyright Implica-
tions, 43 AM. U. L. REv. 23I, passim (I993); David Nicholson, The Brave New World of
Electronic Publishing, WASH. POST, Aug. 8, I993 (Book World) at 8, 9; James Warren, In
Transition: Technology, Shift to Part-Time Employees Threaten TV-Radio Union, CHI. TRIB.,
July 25, I993, ? 5, at 2.
8 See Anne W. Branscomb, Who Owns Creativity?: Property Rights in the Information Age,
TECH. REv., May/June I988, at 38, 40.
9 See Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Com-
puter-Generated Works: Is Anything New Since CONTU?, io6 HARV. L. REV. 977, I049-5I
('993).
10 See Visual Artists Rights Act of I990, Pub. L. No. IOI-650, I04 Stat. 5I28, 5I28-33
(codified in scattered sections of I7 U.S.C.).

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 I994] VISUAL ARTISTS' RIGHTS I979

which view creation as an extension of an artist's personality. Part

III discusses the Visual Artists Rights Act of I990, which accords
certain moral rights to visual artists, and examines the scope of the
VARA rights. Part IV discusses the advantages and disadvantages of
vigorous enforcement of the VARA rights in a digital age, character-
izing these rights as a disadvantage if they impede the development
and legitimate use of digital technology. Part IV also observes that
artists might welcome VARA as a needed limitation on all-out ex-
ploitation of digital technology. Part V concludes that, although the
moral rights contained in VARA may impede full exploitation of
digital technology and tilt the copyright balance away from its goal
of access to creative works, there may be good reasons for such a
hybrid system.

I. DIGITAL TECHNOLOGY AND THE CHANGING FACE OF ART

Digital technology is likely to bring about several changes, both

positive and negative, in the art world. First, by enabling the making
of perfect copies of copyrighted works for little cost, digital technology
threatens to undermine the current entertainment product distribution
systems and increase unauthorized use of copyrighted works.1' Sec-
ond, digital technology increases the public's access to others' creations
by enabling entertainment producers to create and distribute products
of all kinds in a single (digital) format. 12 When digital technology is
combined with satellite and other communications, forming an "infor-
mation superhighway,"1'3 consumers will be able to access their favor-
ite entertainment products whenever they please. Third, digital tech-
nology makes it easier to manipulate existing works, which leads to
new possibilities for artists who can harness the technology, but also
increases the potential for unauthorized alteration and appropriation
of copyrighted works. When drawings, books, and other forms of
entertainment are stored in digital form, they "become more suscep-
tible to copying or altering, making it harder to enforce copyrights on

11 See John Burgess, Internet Creates a Computer Culture of Remote Intimacy, WASH. POST,
June 28, 1993, at Ai, A8.
12 See, e.g., id. at Ai ("[I]ncreasingly the [Internet] network is shuttling video footage, pho
government studies, novels, dissertations, music, sounds - information of all kinds in . . .
digital form ...."); Bernard Sharratt, Please Touch the Paintings, N.Y. TIMES BOOK REV.,
Mar. 6, 1994, at 3, i8 (describing an art collection on CD-ROM). For an extreme example of
the view that digital technology is ideal for increasing accessibility to copyrighted works, see
David H. Rothman, The World at Your Fingertips, WASH. POST, Apr. 4, 1993 (Educ. Rev.),
at 5, proposing that, in order to facilitate a network containing full-text books, "[a]ll material
longer than io,ooo words, and intended for publication, would have to be in digital form before
the government would grant copyrights."
13 See House Passes High Technology Information Bill, J. PROPRIETARY RTS., Sept. 1993,
at 26.

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 i980 HARVARD LAW REVIEW [Vol. I07:I977

creative works. "14 The alteration of existing works raises serious

copyright issues because of a copyright owner's right to all "derivative
works. "15 Because of the increased danger of unauthorized access,
alteration, and copying, some copyright scholars view digital technol-
ogy as a more specific challenge to copyright than previous technolog-
ical advances;16 other commentators persuasively argue that the dif-
ference is one of degree, not kind.'7 In any event, digital technology
facilitates access, copying, and distribution of traditional products in
remarkable and potentially disruptive ways.'8
Digital technology has not only influenced the use and distribution
of works that are already in existence, but it has also led to new art
forms.'9 For example, digital technology blurs the distinctions be-
tween entertainment media, enabling various parts of the entertain-
ment industry to collaborate on a single multimedia work.20 Digital
technology has also led to new modes of expression, such as digital
"resurrection" of characters from classic movies for use in commercials
and other new settings.2'
More fundamentally, digital technology results in the "democrati-
zation" of creation.22 With digital technology, "every . . . consumer
is a potential author, a potential publisher, and a potential infringer
- all at once. "23 With a home computer, consumers can now create
sophisticated entertainment products that only the largest corporations
previously could make. Digital technology thus has social and cultural
ramifications, as well as economic implications for smaller producers

14 Copyright World Duels With Digital Dilemma, supra note 6, at 3.

15 See infra p. I984.
16 See, e.g., Paul Goldstein, Copyright in the New Information Age, 40 CATH. U. L. REV.
829, 829 (I99I) ("Copyright law finds itself today in the midst of an information revolution
. whose ultimate dimensions we can now perceive only dimly, if at all.").
17 See, e.g., Morton D. Goldberg & Jesse M. Feder, Copyright and Technology: The Analog,
the Digital, and the Analogy, in WIPO DIGITAL SYMPOSIUM, supra note 3, at 37, 38-40.
18 See Don Clark, Intel Lawyer Commands, S.F. CHRON., June 28, 1993, at Ei.
19 See, e.g., Sean Gannon, Canvas Brushed Aside By Artists With Keyboards, PLAIN
DEALER, Jan. 9, 1994, at 9B (discussing "electronic painting"). Of course, new technological
developments will never completely replace traditional products. See John Markoff, The Rise
and Swift Fall of Cyber Literacy, N.Y. TIMES, Mar. 13, 1994, ? 4, at I, 5; Nicholson, supra
note 7, at 9.
20 An example of a multimedia work is an "electronic book," which "contain[s] text and other
information - sounds and still and moving images - that [is] stored digitally on floppy disks
or on CD-ROM." Nicholson, supra note 7, at 8.
21 See Bruce Weber, Why Marilyn and Bogie Still Need a Lawyer, N.Y. TIMES, Mar. ii,
1994, at Bi8. In fact, litigation has begun over the use of a digitized Marilyn Monroe in the
I987 film Flashback. See Reanimating the Dead with Computers, N.Y. TIMES, Mar. 13, 1994,
? 4, at 2. For a comprehensive look at the implications of digital resurrection, see Joseph J.
Beard, Casting Call at Forest Lawn: The Digital Resurrection of Deceased Entertainers - A
2Ist Century Challenge for Intellectual Property Law, 8 HIGH TECH. L.J. IOI, passim (I993).
22 See BRENDA LAUREL, COMPUTERS AS THEATRE 213 (1993).
23 Ralph Oman, Reflections on Digital Technology: "The Shape of Things to Come," in WIPO
DIGITAL SYMPOSIUM, supra note 3, at 21, 22.

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 I994] VISUAL ARTISTS' RIGHTS I98I

who can now make quality products with affordable digital equip-
ment. The decentralization of creators, users, and distributors makes
the prospect of informal arrangements between those parties formid-
able, and practitioners worry that present contract and licensing sys-
tems cannot accommodate these more fluid relationships.

II. COMPARING MORAL RIGHTS WITH THE

LIMITED COPYRIGHT MONOPOLY

A. Moral Rights: An Artist-Centered Regime

The moral right, or "right of personality," is a civil law concept

based on the view that an artist's creation is an extension of his
personality. 24 These rights are separate from the proprietary, or eco-
nomic, rights of copyright, which are also available to artists in civil
law countries. Sometimes described in terms of natural law,25 some
or all of the moral rights are inalienable in many countries.26 Thus,

24 See Russell J. DaSilva, Droit Moral and the Amoral Copyright: A Comparison of Artists'
Rights in France and the United States, 28 BULL. COPYRIGHT Soc'Y I, 11-14 (I980); see also
Zechariah Chafee, Jr., Reflections on the Law of Copyright (I), 45 COLUM. L. REV. 503, 5o6-
07 (1945) ("[I]ntellectual property is, after all, the only absolute possession in the world ....
The man who brings out of nothingness some child of his thought has rights therein which
cannot belong to any other sort of property." (quoting Thorvald Solberg, Copyright Reform, 14
NOTRE DAME LAW. 343, 358 (1939) (quoting Harvard geologist Nathanial S. Shaler (I878)))).
There are four main types of moral rights: the droit de divulgation, which allows the author
to decide whether and when to publish his work; the droit de retrait ou de repentir, which
gives the author the right to withdraw his work from publication or modify his published work;
the droit d la paternite (paternity or attribution right), which gives the author the right to be
credited with his work; and the droit au respect de l'oeuvre (integrity right), which prevents
third persons from altering, mutilating, or destroying the author's work and even gives artists
in France the right to prevent excessive criticism of their works. See DaSilva, supra, at 3-4,
17-37. This Note uses the French system as a model because "France is considered to be in
the vanguard of protection of the artist's rights of personality." Id. at 2. However, because the
Berne Convention mandates only the paternity right and the integrity right, see infra note 50,
the remainder of this Note focuses on those two sticks in the bundle of moral rights.
Although some of the continental moral rights jurisprudence does not seem to regard artists'
rights as coinciding with the interests of the public, see, e.g., Martin A. Roeder, The Doctrine
of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 HARV. L. REV. 554,
557 (I940), moral rights do have a public-interest element, see id. at 577. In addition to
stimulating creative work, moral rights preserve a society's cultural heritage by protecting
creators against the mutilation or destruction of their works. The public interest element of the
moral rights regime, however, is different in emphasis from that of the Anglo-American system,
which is discussed at pp. I982-84 below.
25 See, e.g., DaSilva, supra note 24, at ii.
Although it is tempting to think of moral rights as "moral" in the philosophical sense, and
although some aspects of the moral right are explained in terms of a natural right to one's
creations, the manifestations of the moral right do not necessarily derive from a Lockean or
other natural-law property notion of intellectual property, such as the one developed by Professor
Wendy Gordon. See Wendy J. Gordon, A Property Right in Self-Expression: Equality and
Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. 1533, 1540-83 (I993).
26 See DaSilva, supra note 24, at I6-17.

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 I982 HARVARD LAW REVIEW [Vol. I07:I977

under a moral rights regime, enforcement and ownership need not go

hand in hand - the artist can sue the current owner of the work or
of the copyright for moral rights violations.
Moral rights are thought to encourage artistic creation by giving
artists the protection they desire - recognition for their works and
protection of their reputations - over and above the economic incen-
tives of copyright. In this way, the moral right is partially an eco-
nomic interest: the reputational interest is valuable in large part be-
cause the artist stands to lose patronage if his art is misrepresented.27
Nevertheless, moral rights regimes use more personal language than
do the Anglo-American courts to describe the artist,28 and Continen-
tal-European scholars have generally been more averse to according
rights to nontraditional (that is, computer-generated) art work.29 The
paradigmatic civil law artist who would desire moral rights protection
is more likely to be an individual artist than a computer or a corpo-
ration producing works for large-scale distribution.

B. Anglo-American Copyright: An Incentive-Based Regime

Modern American intellectual property law grows out of a single

clause in the Constitution that grants Congress the power "To promote
the Progress of Science and useful Arts, by securing for limited Times
to Authors and Inventors the exclusive Right to their respective Writ-
ings and Discoveries."30 The well-documented view of the Copyright
Clause and the Copyright Act is that they reflect an effort to strike a
utilitarian compromise between the encouragement of creative effort
and the assurance that new creations will reach the public and thus
be available for use in other endeavors.31 In this balance, the author's

27 See Gilliam v. American Broadcasting Cos., 538 F.2d I4, 24 (2d Cir. I976) ("[T]he
economic incentive for artistic and intellectual creation that serves as the foundation for Amer-
ican copyright law . . . cannot be reconciled with the inability of artists to obtain relief for
mutilation or misrepresentation of their work to the public on which the artists are financially
dependent." (citations omitted)).
28 See, e.g., DaSilva, supra note 24, at I2 (describing one commentator's characterization of
the artist protected by moral rights as "profoundly romantic . . . , perhaps conjuring up visions
of poets in garrets, burning their lyric masterpieces for heat in the icy Parisian winter"); cf.
Roeder, supra note 24, at 557 ("When an artist creates, . . . he projects into the world part of
his personality and subjects it to the ravages of public use.").
29 The bias against corporate authors is reflected in the fact that most European countries
do not have a "work for hire" doctrine - in other words, they do not give corporations the
copyrights in their employees' creations. See Anne Moebes, Negotiating International Copyright
Protection: The United States and European Community Positions, I4 LoY. L.A. INT'L &
COMP. L.J. 301, 320 (1992). Similarly, although the Berne Convention "seems neutral on the
possibility of nonhuman authorship," historically the civil law countries have not recognized
nonhuman authors. Miller, supra note 9, at IO50.
30 U.S. CONST. art. I, ? 8, cl. 8.
31 See, e.g., Mazer v. Stein, 347 U.S. 20I, 2I9 (I954). But see Chafee, supra note 24, at
5o6-07 (arguing that the primary purpose of copyright is to benefit the author).

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 I994] VISUAL ARTISTS' RIGHTS I983

interests are generally considered secondary to the public interest,

sometimes even termed a "means to [an] end."32 For example, the
courts at common law developed concepts such as fair use to prevent
the copyright monopoly from defeating its purpose of ensuring that
the public can make use of others' creations.33
Some states have statutes or common law that confer moral rights
or quasi-moral rights to certain types of artists,34 and occasionally
courts attempt to use unfair competition,35 copyright law,36 defama-
tion law,37 contract law,38 or publicity rights39 to accomplish the same
result as would European moral rights.40 Yet American courts have
not warmly received attempts to embrace moral rights.41 Instead, the

32 Elliott M. Abramson, How Much Copying Under Copyright? Contradictions, Paradoxes,

Inconsistencies, 6i TEMP. L. REV. I33, I69 (I988); see also Feist Publications, Inc. v. Rural
Tel. Serv. Co., 499 U.S. 340, 349 (i99i) ("The primary objective of copyright is not to reward
the labor of authors, but '[t]o promote the Progress of Science and Useful Arts."' (quoting U.S.
CONST. art. I, ? 8, cl. 8)).
33 Congress codified fair use, which was initially a common law doctrine, in the I976 Act.
See I7 U.S.C. ? I07 (i988 & Supp. IV I992). As a result of fair use and other such doctrines,
United States copyright "has never accorded the copyright owner complete control over all
possible uses of his work." Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 4I7,
432 (i984).
34 See, e.g., CAL. CIV. CODE ?? 980-990 (West I988 & Supp. I994); N.Y. ARTS & CULT.
AFF. LAW ?? ii.oi-i6.oi (Consol. I99I). Although quasi-moral rights statutes provide some
degree of protection to artists, they may be partially or completely preempted by VARA, see I7
U.S.C. ? 30I (i988 & Supp. IV I992), and they also tend to be limited to certain types of art
work. See, e.g., MASS. GEN. LAWS ANN. ch. 23I ? 85s (West Supp. I993).
35 Lanham Act section 43(a), I5 U.S.C. ? II25(a) (i988), protects artists against misrepre-
sentation or "passing off" of their work. See, e.g., Allen v. National Video, Inc., 6io F. Supp.
6I2, 625 (S.D.N.Y. i985). State unfair competition law also indirectly protects the attribution
right. See, e.g., Granz v. Harris, i98 F.2d 585, 588 (2d Cir. I952).
36 The right of a copyright holder "to prepare derivative works based upon the copyright
work," I7 U.S.C. ? io6(2) (i988), and "to distribute copies . . . of the copyrighted work to the
public," id. ? io6(3), occasionally substitutes for certain moral rights. See, e.g., Gilliam v.
American Broadcasting Cos., 538 F.2d I4, 23-24 (2d Cir. I976).
37 Because artists are often public figures only for a "limited purpose" under defamation law,
however, they may be unsuccessful if they cannot prove actual malice. See, e.g. Wojnarowicz
v. American Family Assoc., 745 F. Supp. I30, I46 (S.D.N.Y. I990).
38 See, e.g., Gilliam, 538 F.2d at 24.
39 See, e.g., White v. Samsung Elecs. Am., 97i F.2d I395, I399 (gth Cir. I992), cert. denied,
II3 S. Ct. 2443 (I993).
40 But see Roberta R. Kwall, Copyright and the Moral Right: Is An American Marriage
Possible?, 38 VAND. L. REV. I, 23-27 (i985) (noting that, because the artist must fit his claim
into the doctrinal requirements of these causes of action, they are not exact substitutes for moral
rights).
41 See, e.g., Vargas v. Esquire, i64 F.2d 522, 526 (7th Cir. I947) (holding that Vargas had
no right to be credited when his photographs appeared in Esquire); Crimi v. Rutgers Presbyterian
Church, 89 N.Y.S.2d 8I3, 8i6-i9 (Sup. Ct. I949) (holding that an artist had no right to prevent
a church from painting over his mural); Shostakovich v. Twentieth Century-Fox Film Corp.,
8o N.Y.S.2d 575, 578-79 (Sup. Ct. I948) (displaying hostility toward the claims of Russian
composers that their moral rights were violated when their music was played in an anti-Soviet
film and wondering whether the standard for violations of moral rights is "to be good taste,

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 I984 HARVARD LAWREVIEW [Vol. I07:I977

Copyright Act grants authors a series of exclusive rights - the repro-

duction right, the derivative work right, the distribution right, the
public performance right, and the display right42- that are limited
in duration and restricted by other copyright doctrines.43
The American copyright system assumes that artists will produce
creative works only if given the incentive of a limited monopoly. Such
a system, in theory, does not distinguish between "fine art" and other
forms of creation, and it may even seem less applicable to the former
than the latter.44 Congress has protected "maps and charts" since the
original I790 Copyright Act, and despite some initial opposition,45
computer programs now receive protection under the same statute as
fine art. Regardless of whether, in practice, courts treat all creations
as equal, in theory the threshold of originality is low enough and the
definition of authorship is flexible enough to include any type of work
by any type of author.46 Thus, works wholly created in digital format
are quite easily protected under copyright.47

III. THE FEDERAL MOVE TOWARD MORAL RIGHTS:

THE VISUAL ARTISTS RIGHTS ACT

In I988, the United States finally48 joined the century-old Berne

Convention for the Protection of Literary and Artistic Works

artistic worth, political beliefs, moral concepts or what is it to be?"), aff'd, 87 N.Y.S.2d 430
(App. Div. I949).
Indeed, not until California's I979 Art Preservation Act, CAL. CIV. CODE ? 987 (West i982),
did a state confer moral rights on artists by statute. See DaSilva, supra note 24, at 2.
42 See I7 U.S.C. ? Io6 (I988).
43 See id. ?? I07-II2.
44 Whether the paradigmatic artist needs the economic incentive of the copyright to create
is certainly open to debate. Cf. Stephen Breyer, The Uneasy Case for Copyright: A Study of
Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REV. 28i, 282 (I970)
("Authors in ancient times, as well as monks and scholars in the middle ages, wrote and were
paid for their writings without copyright protection.").
45 See Miller, supra note 9, at I053 n.358 (discussing novelist John Hersey's stance during
the CONTU hearings, during which Hersey opposed copyright protection for computer pro-
grams).
46 See, e.g., id. at I059-66. For a work to be copyrightable, it must be an "original
work[ ] of authorship fixed in any tangible medium of expression." I7 U.S.C. ? I02 (i988).
Originality for purposes of copyright means little more than originating with the author; thus,
copyright does not contain an artistic-merit test, and "Congress has been hostile to content-
based restrictions on copyrightability." Mitchell Bros. Film Group v. Cinema Adult Theater,
604 F.2d 852, 855 (5th Cir. I979), cert. denied, 445 U.S. 9I7 (I980). Instead, any tangible form
of expression that originates with an author will be protected. See I PAUL GOLDSTEIN, COPY-
RIGHT ? 2.2, at 62-73 (i989). However, a relatively recent case, in which the Supreme Court
held that assembling the white pages of a phone book "does not possess the minimal creative
spark required by the Copyright Act and the Constitution," Feist Publications, Inc. v. Rural
Tel. Serv. Co., iII S. Ct. I282, I296-97 (1991), casts doubt on whether the originality threshold
is as low as was previously assumed.
47 See Miller, supra note 9, at 1042-72.
48 As early as 1945, and perhaps earlier, "[a]gitation to revise our copyright law so as to

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 I994] VISUAL ARTISTS' RIGHTS I985

(Berne).49 The approximately eighty members of Berne are required

to provide a certain level of substantive protection - including certain
types of moral rights - to literary, artistic, scientific, and other cre-
ative works.50 Not surprisingly, the requirement that members rec-
ognize the moral rights of attribution and integrity significantly slowed
the Congressional hearings leading to the decision to join Berne.51
Ultimately, Congress took a minimalist approach to compliance and
concluded that existing indirect federal and state protection is ade-
quate to protect moral rights in all but visual art.52
To achieve compliance in the area of visual art, Congress amended
the Copyright Act by passing VARA, which applies to the original
and signed, consecutively numbered limited editions of 200 or fewer
copies of the following copyrightable works: paintings, drawings,
prints, sculptures, and photographs "created for exhibition pur-
poses."53 VARA does not protect such creations if they appear within
another visual art work.54 Moreover, works for hire are excluded
from VARA's protections.55 In order to "avoid[ ] any tension betw
the public's ability to exploit the work under copyright law and the
rights granted under [VARA],"56 Congress also made fair use an ex-
plicit limitation on VARA rights.57 Finally, although the VARA rights
cannot be assigned or transferred, they can be waived under certain
conditions. 58
One area of great uncertainty involving VARA is whose rights will
take priority if an artist transfers the copyright in a painting or other

make the United States eligible for membership" was already "constant and powerful." Roeder,
supra note 24, at 557.
49 See Berne Convention Implementation Act of i988, Pub. L. No. Ioo-568, ? 2, I02 Stat.
2853 (Oct. 3I, i988). For the legislative history of the United States's decision to join the Berne
Convention, see H.R. Rep. No. 609, iooth Cong., 2d Sess. (i988); S. Rep. No. 352, iooth
Cong., 2d Sess. (i988), reprinted in i988 U.S.C.C.A.N. 3706.
50 The Berne Convention provides that:
Independently of the author's economic rights, and even after the transfer of said rights,
the author shall have the right to claim authorship of the work and to object to any
distortion, mutilation or other modification of, or other derogatory action in relation to,
the said work, which would be prejudicial to his honour or reputation.
Berne Convention art. 6 bis, reprinted in 4 DAVID NIMMER & MELVILLE B. NIMMER, NIMMER
ON COPYRIGHT 27-6 app. (I993).
51 See H.R. Rep. No. 609, iooth Cong., 2d Sess. (i988); S. Rep. No. 352, iooth Cong., 2d
Sess. (i988), reprinted in i988 U.S.C.C.A.N. 3706.
52 See Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Conven-
tion, IO CoLuM.-VLA J.L. & ARTS 5I3, 547-57 (I986).
53 VARA ? 602, I7 U.S.C. ? IOI (SUPP. IV I992).
54 See I7 U.S.C. ? Io6A(c)(3) (Supp. IV I992).
55 See VARA ? 602, I7 U.S.C. ? IOI (SUPP. IV I992).
56 H.R. Rep. No. 5I4, IOIst Cong., 2d Sess. I4 (I990), reprinted in I990 U.S.C.C.A.N.
69I5, 6924.
57 See I7 U.S.C. ? io6A(a).
58 See id. ? io6A(e).

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I986 HARVARD LAWRE VIEW [Vol. I07:I977

visual art work to another party who then exercises his derivative-
work right in a way that the artist feels violates his integrity right.59
In such a situation, it is likely that the owner of the copyright will
prevail; as Professors L. Ray Patterson and Stanley Lindberg note,
"property is a favored child of the common law, personal rights a
stepchild. When there is a conflict between the two, the property
rights almost invariably prevail."60 Thus, even formal moral rights
protection has built-in limitations in the United States, although
VARA does purport to protect the rights of visual artists as required
by the Berne Convention.
VARA gives the visual artist two types of integrity rights. First,
the artist has the right

to prevent any intentional distortion, mutilation, or other modification

of [his or her] work which would be prejudicial to his or her honor
or reputation, and any intentional distortion, mutilation, or modifi-
cation of that work is a violation of that right.61

The legislative history of VARA indicates that, in construing whether

a particular action is harmful to an artist's honor or reputation, the
focus should be "on the artistic or professional honor or reputation of
the individual as embodied in the work that is protected," and not
the more general character test used in defamation cases.62 Second,
the visual artist may "prevent . . . any intentional or grossly negligent
destruction" of works of "recognized stature."63
Explicit and implicit limitations on the VARA integrity right render
it unequal to its civil law origins regardless of the effect of digital
technology.64 First, the visual artist whose work is not of recognized
stature cannot prevent the distortion of his work unless the distortion
is intentional. This limitation creates a dichotomy between well-
known and other works that is not present in the civil law system.
Second, prejudice to the artist's honor or reputation is unlikely to be
presumed by American courts and is difficult to prove;65 by contrast,
many of the European countries presume prejudice if any modification

59 See ROBERT A. GORMAN, COPYRIGHT LAW 88 (iggi).

60 L. RAY PATTERSON & STANLEY W. LINDBERG, THE NATURE OF COPYRIGHT: A LAW OF
USERS' RIGHTS i66 (i99i).
61 I7 U.S.C. ? Io6A(a)(3)(A).
62 See H.R. Rep. No. IOI-5 I4, ioist Cong., 2d Sess. I5 (IggO), reprinted in IggO
U.S.C.C.A.N. 69I5, 6925.
63 I7 U.S.C. ? Io6A(a)(3)(B).
64 For observations specific to digital technology, see below at pp. I987-9I.
65 For example, American courts have not been particularly sensitive to directors' or other
claims that their works have been impermissibly altered by editing for commercials, reductio
in size for television, or any number of other digital alterations. See U.S. COPYRIGHT OFFICE,
TECHNOLOGICAL ALTERATIONS TO MOTION PICTURES AND OTHER AUDIOVISUAL WORKS: A
REPORT OF THE REGISTER OF COPYRIGHTS 9I-92 (I989).

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 1994] VISUAL ARTISTS' RIGHTS I987

is involved.66 Third, section II3(d) of the Act limits the rights of an

artist whose visual art work is removed from a building. Such an
artist has a cause of action only if the work can be removed from the
building without harming the work or if the artist did not consent to
its installation prior to VARA's effective date.67 Finally, because
reproductions are exempted from VARA's coverage, the visual artist
has no cause of action against "discolored or badly cropped
reproductions"68 unless they violate the derivative work right or an-
other informal type of protection.69
VARA also gives visual artists two attribution rights. First, the
artist has the right to "claim authorship" of his work of visual art and
"to prevent the use of his or her name as the author of any work of
visual art which he or she did not create."70 Second, the artist can
"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 repu-
tation. "71 These rights are substantially similar to the traditional
attribution right in the civil law countries, although they are subject
to fair use and other limitations.72

IV. USING VARA TO ADDRESS THE CONSEQUENCES

OF DIGITAL TECHNOLOGY

With the passage of VARA, Congress expressed the general view

that "[a]rtists' rights are consistent with the purpose behind the copy-
right laws and the Constitutional provision they implement. "73 Yet
the two-tiered system that Congress created, under which explicit
moral rights are restricted to creators of limited-edition visual art
works74 and all others must rely on state and informal federal protec-
tion, is inconsistent with the traditional interpretation of the Copyright
Clause, which does not contemplate distinctions based on artistic merit
or artistic form. Digital technology forces us to examine whether it
will be possible to use VARA to filter out the illegitimate uses of
digital technology in order to protect traditional artists who may fall
victim to unauthorized digital uses of their works, without at the same

66 See infra p. I989.

67 See I7 U.S.C. ? II3(d).
68 GORMAN, supra note 59, at 87-88.
69 See supra pp. I983-84.
70 I7 U.S.C. ? io6A(a)(i).
71 Id. ? Io6A(a)(2).
72 See infra pp. I988-9I.
73 H. Rep. No. 5I4, ioist Cong., 2d Sess. 5 (I990), reprinted in I990 U.S.C.C.A.N. 69I5,
69I5.

74 See I7 U.S.C. ? io6A (Supp. IV I992).

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I988 HARVARD LAW REVIEW [Vol. I07:I977

time discouraging the aspects of digital technology that fulfill the

mandate of the Copyright Clause.

A. Encouraging the Legitimate Use of Digital Technology

Because the most common art forms that use digital technology
are not covered by VARA, moral rights cannot affirmatively encourage
artists to create digital works.75 Most digital works will not meet the
definition of visual art in VARA because they will not be signed
limited editions. As indicated above, works made for hire and the
most common mass-marketed art forms, such as films, are expressly
excluded from VARA's definition of visual art. More important than
active encouragement, however, is the question whether the moral
rights that are available to visual artists, in combination with the rest
of the Copyright Act, will impede full legitimate exploitation of digital
technology. This inquiry is a critical one because in many ways digital
technology itself promises to fulfill the goals of access and dissemi-
nation.
Although many predicted that incorporating moral rights into the
American system would disrupt the balance between encouraging cre-
ativity and ensuring access to new creations, digital technology itself
makes it desirable to adjust that balance. Certain moral rights do,
however, have the potential to impede the access and development
that is the constitutionally mandated purpose of copyright. For ex-
ample, international commentators recognize that the author's moral
right to withdraw his work, which is not mandated by the Berne
Convention, may need to be restricted in a digital age.76
The VARA rights available to traditional artists may impede the
development of digital art work. Because VARA is limited to certain
types of entertainment products, it creates "artificial distinctions" be-
tween traditional and nontraditional works that may not be "opera-
tional in facing the growing diversity of technological possibilities."77
Digitally based works will most likely suffer under such a system.
Whereas the copyright system has a low originality threshold, VARA
is applicable only if an artist's reputation or honor is harmed, which
generally requires some mutilation of a "work of recognized stature."78

75 For example, multimedia works are unlikely to be affected by VARA, except perhaps in
the area of overseas distribution. See William A. Tanenbaum & William K. Wells, Jr., Mul-
timedia Works Require Broad Protection, NAT'L L.J., Nov. I, I993, at Sii, SI2.
76 See, e.g., Ashok Bhojwani, Digital Recording Technologies and Intellectual Property:
Promises and Pitfalls for Development, in WIPO DIGITAL SYMPOSIUM, supra note 3, at 79, 85.
77 Andre Lange, The Impact of Digital Technologies on the Author's Right and Neighboring
Rights, in WIPO DIGITAL SYMPOSIUM, supra note 3, at 227, 234.
78 I7 U.S.C. ? io6A(a)(3)(B) (Supp. IV I992). This is not, however, intended to be a hard
and fast rule. Although the two concepts are related, "honor or reputation" is distinguished
from "works of recognized stature" in the legislative history of VARA. See H. Rep. No. 5i4,
IoIst Cong., 2d Sess. I5, reprinted in I990 U.S.C.C.A.N. 69I5, 6925-26.

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 1994] VISUAL ARTISTS' RIGHTS I989

Because most digital works appropriate existing materials and manip-

ulate them as part of the artistic statement, unauthorized digital works
will often violate the rights of an artist who has created a work of
"recognized stature." A system in which the creative use of existing
materials is a common target for successful litigation is unlikely to
encourage new digitally based works.79
As compared with VARA, however, a true moral rights regime
would be even more inflexible when faced with technological manip-
ulation of works, and international distributors of entertainment prod-
ucts should be aware of the possibility of such treatment in other
countries. In one Italian case, for example, filmmaker Pietro Germi's
son successfully sued a television company for interrupting Germi's
movie "Serafino" for commercial breaks.80 The court held that "even
a single commercial break in a film constitutes an alteration of the
work's integrity and therefore violates the director's moral rights. "81
In addition to setting "a precedent that could have longrange effects
. . . in every country that adheres to the Berne Convention,"82 this
ruling demonstrates that traditional moral rights give a significant
advantage to the party who wishes to prevent digital alteration of a
work.

B. Discouraging the Illegitimate Use of Digital Technology

Because widespread infringement of copyrighted material discour-

ages creation of all kinds, the copyright regime should seek to thwart
digital technology's facilitation of unauthorized manipulation and re-
production of copyrighted works. For example, the declining profit-
ability of traditional media in the face of easy copying and easy access
could chill creativity as traditional copyright's protection against un-
authorized use becomes more and more ineffectual.83 Yet VARA

79 A more fundamental problem is identifying who should get the moral right in a d
work. Copyright has not viewed a publisher or end user as an author, although with digital
technology each performs many creative functions. See Jon A. Baumgarten, Digital Use of
Scientific and Technical Information, in WIPO DIGITAL SYMPOSIUM, supra note 3, at 63, 64.
Fearing that the integrity right would impair the full exploitation of digital technology by
preventing alteration and limiting the use of preexisting works as building blocks for other
works, broadcasters and others are vehemently opposed to moral rights. See Cathy Seidner &
Kimon P. Timon, Preserving Intangible Rights in Films Shown on Television, N.Y.L.J., May
25, I990, at 5. However, VARA exempts such uses.
80 See Jennifer Clark, Italo Court: TV Ad Breaks Violate Moral Rights of Pic's Helmer,
VARIETY, Oct. I8-24, I989, at 6, 6.
81 Id. (quoting the court).
42 Id.

33 See supra pp. I979-80. One British lawyer warns that "emerging multimedia technology
which allows seamless and virtually indetectable copying - 'makes a nonsense of moral
rights."' Victoria Slind-Flor, International Bar Group Meets but Finding a Consensus Proves
Elusive, NAT'L L.J., Sept. 20, I993, at I2 (quoting Jack Black of London's Radliffe's & Co.).

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 I990 HARVARD LAW REVIEW [Vol. 107:I977

appears ill-equipped to deal with the challenges of protecting copy-

righted material in the age of digital technology. In particular, three
qualifications built into VARA are likely to pose problems for artists
seeking to protect their works from digital alteration: the narrow
exclusion of films and other audiovisual works from coverage,84 the
exclusion of works of visual art that are embodied in other works,85
and the applicability of the fair use provision.86
First, although films and other audiovisual works are among the
most common victims of unauthorized digital alteration, VARA ex-
plicitly excludes them from the definition of a protected work of visual
art.87 The legislative history of VARA suggests that Congress drafted
this exclusion based on perceived differences, both factual and legal,
in the creation and dissemination of visual arts and audiovisual
works.88 For example, the House Report states that, unlike visual
arts, "audiovisual works are generally works-made-for-hire;" thus, to
grant moral rights to "those who participate in a collaborative effort,
such as an audiovisual work," Congress noted, "might conflict with
the distribution and marketing of these works."89 The report also
noted that, unlike works that can potentially be produced in unlimited
quantities, original works of visual art are irreplaceable.90 By focus-
ing too heavily on current marketing practices and on whether a work
could be replaced if it were destroyed, Congress overlooked the critical
analysis of the interests of the artist and whether an artist is more
likely to have his work incorporated into such a "collaboration" with
or without his permission. VARA's exclusion of audiovisual work
ignores the fact that colorization and other alteration of films can be
as much, if not more, of an affront to an artist-director's reputation
as any alteration of a painting.9' A significant segment of the enter-

84 See I7 U.S.C. ? IOI (SUpp. IV I992).

85 See id. ? IOI.
86 See id. ?? io6A(a), I07.
87 See id. ? IOI.
88 See H. Rep. No. 5I4, ioist Cong., 2d Sess. 9 (I990), reprinted in I990 U.S.C.C.A.N.
69I5, 69ig.
89 Id.

90 See id.
91 See, e.g., Report of the Register of Copyrights, United States Copyright Office, Washing-
ton, D.C. (Mar. i989), reprinted in Report, Technological Alterations to Motion Pictures and
Other Audiovisual Works: Implications for Creators, Copyright Owners, and Consumers, Io Loy.
ENT. L.J. I, IO3 (I99O) [hereinafter Register's Report on Technological Alteration]; see also
Seidner & Timon, supra note 79, at 6 ("The only time I lose my integrity as a filmmaker . . .
is when my films go on TV ...." (quoting Steven Spielberg)). Today, the basic agreement of
the Directors Guild of America requires that the director be notified and consulted about such
editing, but that the director does not get the "final cut.' Certain recent bills reflect the directors'
concerns. See, e.g., I39 CONG. REc. S835I, S8353-54 (daily ed. June 30, I993) (statement of
Sen. Simpson) (introducing the Film Disclosure Act of I993, S. ii8i, Io3d Cong., Ist Sess.,
which would amend Lanham Act ? 43(a) to require that materially altered films include labels
disclosing the nature of the alteration and any objections on the part of the artistic authors).

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 I994] VISUAL ARTISTS' RIGHTS I99I

tainment industry is still lobbying for legislative responses to its great-

est concerns about digital technology.
Second, VARA does not protect visual art that appears in audio-
visual works or other creations that are not protected by VARA.92 In
other words, VARA does not protect visual artists from the most
common digital uses of their works.93 Yet the legislative history of
VARA states that "a new and independent work created from snippets
of [excluded] materials, such as a collage, is of course not excluded"
from coverage.94 Thus, certain types of appropriation art might gain
incidental moral rights protection if they are found to be independent
works of recognized stature that fit one of the categories of protected
art. But the statute does not contemplate that the reverse could be
true; covered works that are incorporated into new works are not
given a cause of action other than intentional or negligent mutilation.
Digital applications that would not require mutilation or destruction
of an art work - scanning of a painting for inclusion in a multimedia
work, for example - can seemingly take place without violating
VARA.95 The availability of moral rights to traditional artists in such
situations might have made these artists more likely to agree to the
use of their works in digital creations. Instead, the VARA exemptions
provide incidental protection only to appropriationists while simulta-
neously depriving visual artists of a cause of action against them.
Third, subjecting the VARA rights to the fair use provision of the
Copyright Act places American visual artists at a distinct disadvantage
as compared with artists in countries that do not recognize a fair use
defense to violations of moral rights.96 If appropriation art is consid-
ered a form of critical commentary,97 fair use will seriously undermine
artists' potential to challenge unauthorized digital works. Thus, al-
though traditional copyright doctrines usually give artists sufficient
incentives to create, if creators feel aggrieved by digital alteration that
is not explicitly forbidden by our copyright law, a myopic focus on
traditional Anglo-American rights in creative products may compro-
mise the incentive to create.98

92 See H. Rep. No. 514, ioist Cong., 2d Sess. I7 (I990), reprinted in I990 U.S.C.C.A.N.
6915, 6927.
93 Significantly, however, the implications of digital technology are not explicitly addressed
in the legislative history of VARA.
94 H. Rep. No. 5P4, ioist Cong., 2d Sess. 14, reprinted in I9gO U.S.C.C.A.N. 69I5, 6924.
95 But such activities might violate the derivative work right or the distribution right. See
17 U.S.C. ? io6 (I988 & Supp. IV 1992).
96 See Moebes, supra note 29, at 320.
97 Cf. Campbell v. Acuff-Rose Music, Inc., II4 S. Ct. II64, II13 (I994) (stating that a rap
song's parody "reasonably could be perceived as commenting on the original or criticizing it, to
some degree").
98 See, e.g., H. Rep. No. 5'4, ioist Cong., 2d Sess. 6 (I990), reprinted in I990
U.S.C.C.A.N. 69I5, 69I6.

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 I992 HARVARD LAWREVIEW [Vol. I07:I977

C. Policy Advantages to the VARA Rights

Although VARA has the potential to stifle digital technology in a

manner contrary to the constitutional mandate, it is also defensible
on the basis of various important policy objectives. Just as fair use
is justified as a way to ensure that the copyright monopoly does not
extend too far, so too might moral rights, which also limit the copy-
right monopoly, be a justified impediment to one form of creation in
order to avoid stifling other art forms.99 In addition, federal moral
rights could help to unify the various state regimes that currently
provide only nebulous moral rights protection.100 Such unification
would be beneficial because "patchwork measures rarely approximate
the degree of protection afforded by a cohesive legal theory."'10 Like-
wise, explicit recognition of moral rights could increase business cer-
tainty in an age of global entertainment markets. When entertainment
products are created with a view toward international markets, it is
sensible to treat international consistency in the protection of these
products as an independently valuable objective.102

Digital technology does, however, make it exceedingly difficult to police the unauthorized
use of a copyrighted work. See Lange, supra note 77, at 230-31. Because end users can alter
digitized works almost effortlessly, the transaction costs would be prohibitive for an artist who
wanted to approve or disapprove even the most trivial "transformative" use of his art work.
Cf. Pierre N. Leval, Toward a Fair Use Standard, 103 HARV. L. REv. 1105, I'll (1990)
(proposing that fair use turn on whether a given use is "transformative," defined as a use that
is "productive" and employs the original work "in a different manner and for a different purpose
from the original").
99 Indeed, Professors Patterson and Lindberg argue that:
The vice of the copyright monopoly unlimited by the moral-rights doctrine (and barely
limited by the fair-use doctrine) is that copyright ceases to be merely a monopoly for
protection against competitors; it becomes a monopoly also against both authors and
users. Thus, authors are severely restricted, not only in the right to protect their own
products but also in the use they may make of the works of other authors to create new
works . . . . And the monopoly against users inevitably inhibits the fulfillment of the
constitutional purpose of copyright, the promotion of learning.
PATTERSON & LINDBERG, supra note 6o, at 172.
100 See supra p. I983.
101 Kwall, supra note 40, at i8; see also Roeder, supra note 24, at 575 ("The application of
so many different doctrines to a subject matter which is intrinsically homogeneous produces
confusion; choice of theory becomes dependent on a fortuitous combination of factors, rather
than on the basic needs of the problem." (footnote omitted)).
102 See The Visual Artists Rights Act of I989, Hearings on H.R. 2690 Before the Subcomm.
on Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the
Judiciary, ioist Cong., Ist Sess. 37 (I989) (statement of Ralph Oman, Register of Copyrights).
Former Congressman Robert Kastenmeier notes that
popular culture and information have become export commodities of immense economic
value. That value is badly eroded by low international copyright standards. Berne
standards, by contrast, are appropriately high and are widely accepted by the interna-
tional copyright community. By lending our prestige and power to those standards, we
have improved domestic copyright law and bolstered our own credibility in the interna-
tional legal system.
Robert W. Kastenmeier, The I989 Horace S. Manges Lecture - Copyright in an Era of
Technological Change: A Political Perspective, I4 COLUM.-VLA J.L. & ARTS I, 12 (I989).

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 I994] VISUAL ARTISTS' RIGHTS I993

The advantages of moral rights in a digital age are not limited to

artists or other creators. Explicit recognition of moral rights might
fill the gap left by the new informality of our copyright regime103 in
ways that would benefit the public interest. 104 For example, the film-
preservation movement argues that great films should be preserved in
their original form in order to preserve our cultural heritage.105 In-
deed, VARA's limitation of its negligence cause of action to works of
"recognized stature"'06 reflects a concern for the public's interest rather
than exclusively that of the artist. 107

V. CONCLUSION

Part of the difficulty in deciding whether moral rights are beneficial

in a digital age is that the technological trends seem to pull in opposing
directions. On the one hand, advances in technology that make it
possible to alter works in ways that were never before imagined
counsel for giving artists more control over their creations. On the
other hand, technology puts pressure on artist-centered regimes, be-
cause technologically assisted works do not fit the paradigmatic view
of art. Moreover, the inter-industry conflicts generated by digital
technology make it unclear what result will "promote the progress of
science and the useful arts." Yet to the extent that moral rights are
limited to "traditional" creators, a significant number of new works
remain protected by the traditional copyright doctrines.
Thus, although VARA may impede full exploitation of digital
technology, it has the advantage of harmonizing international intellec-

Recognition of moral rights in the United States imposes little additional cost when entertainment
products are vulnerable to attack on moral rights grounds in other countries that are major
markets for these products. See Tanenbaum & Wells, supra note 75, at S12.
103 Membership in Berne required the United States to eliminate or modify many of the
formal requirements for a valid copyright -- notice, deposit, and registration - that had
characterized the i909 Copyright Act. See Jane C. Ginsburg & John M. Kernochan, One
Hundred and Two Years Later: The U.S. Joins the Berne Convention, i3 CoLuM.-VLA J.L. &
ARTS 1, 12-I6 (I988).
104 Cf. David Streitfeld, Copyright Controversy: Artists, Library at Odds Over Registra
WASH. POST, Mar. 5, 1993, at C2 ("[M]any important unpublished works have come to t
[L]ibrary [of Congress] under copyright deposit, including a first edition of a Dvorak opera
choreography by Agnes de Mille." (referring to the testimony of Librarian of Congress
Billington before the House Subcomm. on Patents, Copyrights and Trademarks, Mar. 4, 1
105 Any attempt to characterize such rights in terms of the public interest, though pro
the easiest way to assimilate them into the American system, will have its own problems: m
rights justified in terms of the public interest would be limited by the Takings Clause, wit
public interest in art preservation weighed against the burden on the individual who seeks
use his property in a way contrary to that interest. See Craig A. Wagner, Note, Motion Pic
Colorization, Authenticity, and the Elusive Moral Right, 64 N.Y.U. L. REv. 628, 722-24
106 17 U.S.C. ? io6A(3)(B) (Supp. IV 1992).
107 Indeed, this goal is reflected in the legislative history of VARA. See H. Rep. No.
IOIst Cong., 2d Sess. 6 (I99O), reprinted in I99O U.S.C.C.A.N. 6915, 69I6 (statement of R
Edward J. Markey).

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 I994 HARVARD LAWREVIEW [Vol. I07:I977

tual property law at a time when international transactions involving

entertainment products are commonplace. Although moving toward
a system that will impede technological advances may seem unwise,
the VARA rights will ultimately be consonant with the rationale of
intellectual property protection if they encourage creation in a digital
age.

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