Article by Dane S. Ciolino
From the moment an author or artist creates a work he has various rights in it under traditional property law and intellectualproperty law. The author typically owns the copyright in the work and, as a result, can preclude others from, among other things, copying, publicly displaying or publicly performing the work. Moreover, the author typically owns the chattel that embodies the work, such as the physical sculpture, painting, manuscript, videotape or audiotape. Under property law, he can prevent others from using or altering the work while it belongs to him. Once the work is sold, however, the author's right to control the work is diminished if not lost. As a result, purchasers of artwork are normally free to do with it as they please; they may even destroy, deface, or mutilate the author's creation with impunity.
Moral rights permit the author of a work to protect it even after the work has been sold to another. While the particular rights included within the general category of “moral rights” vary from jurisdiction to jurisdiction, the following have most often been recognized: (1) the right of attribution, (2) the right of integrity, (3) the right of divulgation, and (4) the rights of withdrawal and modification. The right of attribution gives the author the right to force any possessor of a work created by the author to attribute the work to him. The right of integrity gives the author the right to prevent others from defacing or mutilating his work. The right of divulgation gives the author the right to decide when a work of art is completed and whether it should be published. Finally, the rights of withdrawal and modification give the author the right to remove his work from the public or to modify it upon payment of indemnity to the owner of the work.
As they originated and developed in Europe, particularly in France, moral rights were considered to be a component of the author's right of personality. Because an artist's creation was believed to be an outgrowth of his soul, his artwork was thought to embody his self and to constitute his “‘spiritual child.”’ As a result, the moral-rights doctrine developed to protect the author's personality rights in his work. It did not develop within the law of property. Indeed, the French believed that artwork was “different from other forms of property.”
Despite this developmental history, property law provides fertile ground for the germination of property rights analogous, but not identical, to traditional European moral rights. This Article first considers the development, general characteristics, and sources of traditional moral rights. Using the Louisiana Civil Code as a model, it then evaluates two alternative bases for the recognition of moral rights, one grounded in tort and the other in property law. Finally, it concludes that traditional moral rights are functionally similar to certain property rights and can be given practical effect as such.
About the Author
Dane S. Ciolino. Professor of Law, Loyola Law School; Associate, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, Louisiana. B.A., Rhodes College 1985; J.D., Tulane Law School 1988.
Citation
69 Tul. L. Rev. 935 (1995)