Image Rights


Moral Rights

Resale Right

The law gives artists certain rights in their creations. William Fisher, "Theories of Intellectual Property," in Stephen Munzer, ed., New Essays in the Legal and Political Theory of Property (Cambridge University Press, 2001) is recommended for those who want to explore a sophisticated introduction to why the law recognizes property interests in intellectual products. These interests can be economic or non-economic, personality rights. 





Web Rights

Appropriation art

Raphael's Judgment of Paris (c1515) triggered one of the most sustained and substantial sequences of copying and counter-copying in Western Art. Raphael's painting became lost but his employee, Marcantonio Raimondi, made an etched copy of it which survived. A few years after the copy was made, the general demand for copies of the original work was so great that Marco Dente da Ravenna made a slavish copy of it. Three centuries later, Manet used part of Raphael/Raimondi's original as the basis for his work Le Déjeuner Sur L'Herbe. Manet used the group of three figures in the bottom right-hand corner of the original work as the heart of his new work, updating their clothing to contemporary garb and adding the naked women. Nearly a century later, Picasso paraphrased Manet's work in an extensive series of paintings, drawings, sculptures and linocuts he executed between 1959 and 1961, Les Dejeuners. How original were Raphael's imitators? See Henry Lydiate's review of Dear Images at 
Grant Wood's iconic American Gothic is perhaps the most often copied modern American work. It has been treated referentially, educationally, commercially, pornographically (perhaps), in parody, and combinations of the above.. 
Is appropriation inevitable for the modern artist? For one artistic justification read Negativland's Tenets of Free Appropriation on the Negativland IP page     

Art Rogers

Jeff Koons
Wood painted sculpture:
String of Puppies

Perhaps the classic case of appropriation art in recent years is Rogers v. Koons, 751 F. Supp. 474 (S.D.N.Y. 1990)  (LEXIS | WESTLAW) aff'd 960 F.2d 301 (2d Cir. 1992) (LEXISWESTLAW)  Jeff Koons’ commissioned sculpture of Art Rogers’ postcard was adjudged a violation of Rogers’ copyright. Blue puppies!  See commentary from Mary Ann Fergus, Derivative Works And Copyright: Painting from Another's Photograph, for the American Society of Portrait Artists. But Annie Leibovitz’s suit against Paramount for stealing the basic idea of her Vanity Fair cover photograph of the pregnant Demi Moore runs a close second. See Leibovitz v. Paramount Pictures Corp., 137 F.3d 109 (2d Cir. 1998) for the original and Pregnant Men for the parody.
William M. Landes, The Arts and Humanities in Public Life: Copyright Protection and Appropriation Art discusses Rogers v. Koons, 751 F. Supp. 474 (S.D.N.Y. 1990), among others.
William M. Landes, Copyright, Borrowed Images and Appropriation Art: An Economic Approach, (December 2000). University of Chicago Law & Economics, Olin Working Paper No. 113, contains a more extended analysis from a law and economic approach.
Britain, which lacks a fair use defense, appropriation artists have an even harder row to hoe. See Simon Stokes piece in the Art Newspaper, The right to copy in the UK: the public domain and free flow of ideas are under threat, commenting on Glenn Brown’s Turner Prize entry “The Loves of Shepherds 2000”.


The exhibit and website Illegal Art: Freedom of Expression in the Corporate Age argues that copyright law is inhibiting rather than encouraging artistic innovation. Their links to video and visual art contain interesting examples of artists pushing the boundaries of legal restrictions, usually from the viewpoint of parody.
Other parody links:

Moral Rights

Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. Rev. 1 (1997) provides a decent introduction to this topic. Also useful might be the module on Respect and Integrity in Professor William Fisher's mini-course Intellectual Property in Cyberspace 2000. The case of Napier's Distorted Barbie is fun. 
Kant and Hegel provided the theoretical justification for an author's "moral right", but James MacNeill Whistler's refusal to provide Sir William Eden with a portrait of his wife and Eden's subsequent suit in 1989 provided the political impetus for France to pass legislation on the subject. France now has the strongest laws supporting the rights of artists. For Whistler's own take on this case, see Eden versus Whistler: The Baronet and the Butterfly. A Valentine with a Verdict, Paris and New York, 1899 (reprinted by Notable Trials Library, 1997) Call Number: FRA 996 WHI78 1997.  
France recognizes four moral rights: 
How inalienable, non-waivable, and perpetual these rights are vary by country. The US only recognizes the last two, and those weakly.
The United States attempted to harmonize its copyright laws with those of European and other countries by joining the Berne Convention and enacting the Visual Artists Rights Act of 1990 (VARA). See especially 17 U.S.C. §§106, 106A, and 113. Cynthia Esworthy in the general counsel's office of the NEA provides a short introduction to US moral rights law in From Monty Python to Leona Helmsley: A Guide to the Visual Artists Rights Act. Check the sidebars as well. However, some assert that the US will have to expand its moral rights protections to achieve its alleged goal of harmonizing its intellectual property laws with those of the European Union. See Jowita Wysocka, Imposing Moral Rights on an Immoral System: An Analysis of the Further Legislative Reform Required for U.S. Compliance with the Berne Convention, Suffolk Journal of High Technology Law (Spring 2000).
The video excerpt showing the misuse of Frederick Hart's sculpture Ex Nihilo by Warner Bros. in the film The Devil's Advocate can be found here. This case used a copyright claim to settle a moral rights problem.
The destruction of Diego Rivera's mural Man at the Crossroads, commissioned for Rockefeller Center but offensive to the patrons because of its inclusion of the image of Lenin, predated any effective moral rights statute. The PBS site Culture Shock has other interesting examples.
Moral rights apply to a somewhat expanded list of the traditional fine arts. Alfred Stieglitz is now an artist but Giorgio Armani is not. See Christine Magdo (JD '00), Protecting Works of Fashion from Design Piracy (2000). See also Matthew Rimmer, Crystal Palaces: Copyright Law And Public Architecture. 14(1) Bond Law Review (2002).

Resale Right (Droit de Suite)

California is the only state to have a droit de suite statute [Cal.Civ.Code § 986]. Summaries can be found in The Artist's Right to Share in the Resale of Art by Ann Avery or The California Resale Royalties Act prepared by Greg Johnsen. Caslon Analytics Has a short summary of droit de suite in Analysphere, 18 June 2001.
Jeffrey C. Wu, Art Resale Rights and the Art Resale Market: A Follow-up Study, 46 J. Copyright Soc'y U.S.A. 531 (1999) [available on Westlaw], written for Professor Merryman's art law course at Stanford, provides a good argument against the usefulness of resale taxes for artists.  See also 
However, resale rights are common in Europe. A European Parliament and Council Directive on the resale right for the benefit of the author of an original work of art is attempting to get all EU members to harmonize their laws by legislating such rights. The European Commission welcomed the adoption of the Directive on resale rights for the benefit of the authors of original works of art. European artists support the Directive. The trade and the government in the UK opposed to introducing such legislation, but the UK government has been forced to go with Europe, although not right away. Perhaps the support for droit de suite has to do with law's expressive function. See