In 2001 a number of artists including Chuck Close, Laddie John Dill, and the estates of Robert Graham and Sam Francis brought suit against auction houses and eBay to receive royalties they had been owed under California’s Resale Royalty Act. That Moral Rights legislation provided that visual artists should receive 5% of the resale price when their work was resold by a California resident, or resold in the state of California for more than $1,000. The District Court struck down the law as unconstitutional on the grounds that commerce like this must be regulated at the federal level under the Commerce Clause to the Constitution. Continue reading “Ninth Circuit to hear Artist’s Resale Rights Appeal”
Two interesting recent discussions of Moral Rights have appeared in the Texas Law Review.
First, in a student note, Lindsey Mills (Moral Rights: Well-Intentioned Protection and Its Unintended Consequences) argues that “by taking away ownership rights that purchasers of artwork would otherwise have, [moral rights legislation] diminishes the economic value of the artwork in question and further, to the extent that artistic expression is deemed desirable, harms society as a whole. After weighing these interests against each other, she concludes that moral rights protection has no place in the United States, let alone as part of the Copyright Act.”
In a follow up, Prof. Robert Bird responds (Of Geese, Ribbons, and Creative Destruction: Moral Rights and Its Consequences) with his own “misgivings based on her discussions of a Canadian moral rights case and artistic destruction. Professor Bird concludes with an appeal to pragmatism in light of “artistic doomsday rhetoric” against moral rights protections in American law.”
Amy Adler, NYU School of Law, has an essay in the most recent California Law Review, Against Moral Rights. From the introduction:
Moral rights scholarship is startling in its uniformity. Scholars take it as gospel that moral rights are crucial for art to flourish and that, if anything, we need a more robust moral rights doctrine. Commentators routinely lament the gap between our modest American moral rights laws and the more expansive European ones. In contrast to copyright law, which has produced a vibrantbody of scholarship critical of the law’s excesses, the main scholarly criticism of moral rights is that they do not reach far enough. Wading through the largely repetitive law review literature, it doesn’t take long to get the implicit message: if you don’t support moral rights, you’re a philistine who doesn’t understand the sanctity of art.
This essay seeks to undermine the foundations of moral rights scholarship, law, and theory. My argument is that moral rights laws endanger art in the name of protecting it. Drawing on contemporary art theory and practice, I focus on the moral right of “integrity,” called “the heart of the moral rights doctrine.” This right allows an artist to prevent modification and, in some cases, destruction of his art work. As I show, the right of integrity threatens art because it fails to recognize the profound artistic importance of modifying, even destroying, works of art, and of freeing art from the control of the artist. Ultimately, I question the most basic premise of moral rights law: that law should treat visual art as a uniquely prized category that merits exceptions from the normal rules of property and contract.
To put it mildly, this is not a popular argument. Indeed, it challenges the key assumptions of virtually all moral rights scholarship. But moral rights scholars have overlooked a surprising problem: the conception of “art” embedded in moral rights law has become obsolete. As a result, the law is on a collision course with the very art it seeks to defend. In fact, as I will show, moral rights are premised on the precise conception of “art” that artists have been rebelling against for the last forty years. Moral rights law thus purports to protect art, but does so by enshrining a vision of art that is directly at odds with contemporary artistic practice. It protects and reifies a notion of art that is dead. In this Essay I ask the question: does moral rights law make sense in an era in which “art,” at least as we have known it for centuries, is over?
Pitchfork has an excellent interview with Jeff Tweedy of the band Wilco today. I usually talk about art and antiquities here, but many of the issues which give rise to controversy in the traditional art mediums are present with respect to music as well. The law often struggles to allay the tension between compensating creators and allowing the public to appreciate those creations. In this excerpt Tweedy talks about how the band gives away much of its music.
Pitchfork: Let me ask you about the listening party you set up for Sky Blue Sky, where you streamed it from the website. It’s not surprise considering Wilco have always been at the forefront of sharing music online. You streamed Yankee Hotel for a while, and then you did that thing with Doctors Without Borders when A Ghost Is Born came out.
Jeff Tweedy: Fans did, I wouldn’t want to take credit for that.
Pitchfork: You stirred the idea a bit at the beginning though, right?
Jeff Tweedy: The idea initially came to us that they wanted to give us some money as an act of good faith because they were downloading the record. We said, “Well we can’t really do that. We can’t take money; it would be against our contract. We wouldn’t feel right about doing that. But if you really want to do something here’s a charity that we really believe in.” So they set it up after that.
Pitchfork: How much did you end up raising?
Jeff Tweedy: I think $15,000.
Pitchfork: That’s pretty great. So few artists are willing to think of new models, you know?
Jeff Tweedy: Yeah I just think it’s pretty simple for us. The whole experience with Yankee Hotel Foxtrot validated a lot of ideas we’ve had. It’s not necessarily to make a piece of plastic we have to sell every two or three years. We would love to be able to think that we could do it even if we didn’t have a record deal, which we proved to ourselves that we could. We liked the idea of people listening to our music. I guess the simplest way of saying it is that I don’t think that artists should expend any energy keeping people from listening or seeing or hearing or reading their art. I think that’s antithetical to the whole principle of being an artist.
Pitchfork: When you put up the new one, it only streamed for a little while. Is there any element of hitting the fans before the leak does and trying to head people off at the pass?
Jeff Tweedy: No because, we basically resign ourselves to the idea that when the record label starts sending out promo copies of the record it’s out. And very shortly after that, almost anybody who want’s it would be able to get it if you wanted it, if you’re technically savvy enough to figure out a way to get it– even from our stream. There’s a lot of things that we still have faith in. I still have a lot of faith that there’s very few people who are savvy enough to actually produce a good sounding copy of the record. I also believe that in general there is no good sounding copy of the record other than the vinyl. I think that vinyl versions of the last few records are far superior. This one in particular I think is going to sound great on vinyl. Other than that I think its not necessarily heading people off at the pass. I think that it’s good for us to have people listen to our music.
Pitchfork: Why do you suppose there aren’t more high-profile bands or artists actually coming out and saying that downloads aren’t the end of the world?
Jeff Tweedy: I don’t have any idea. Fear? Greed? I don’t know. Those would be the two principle ideas that I think that would be at work there. I have fear. I have fear as a businessman that it could somehow impact my ability to take care of my family. But I don’t think that fear should be catered to above the idea that I made music because I wanted people to listen to it. I think it’s really tough for people to make that leap of faith. In particular, when they have a lot of people depending on them or they have a lot of bills to pay. You know, construction efforts underway for a second pool or whatever. In the long run the thing that no one will be able to download is a live music experience. But I also think that there’s a lot of good will that exists between musicians and the people that support them and listen to them. And when they’re treated well, I still believe that most people want to do the right thing. Not everybody has a lot of money, so I think that I want people to be able to hear it. I think it would be nice if they paid us back for it. That would be great. It’s always going to be a better situation for us if somebody cares enough to listen.