5 OTHER DOCTRINES PROVIDING PROTECTION IN THE UNITED STATES

5.1 INTRODUCTION

As discussed earlier in this article, the United States did not initially adopt moral rights laws because similar legal protection was available under a combination of federal law (the Lanham Act), common-law doctrines, and state moral rights legislation. Even in situations where an artist cannot rely on VARA, the artist may still exert these other legal responses in an effort to seek remedy for an alleged damage. For this reason conservators need to be aware of the grounds of liability in addition to VARA. This article seeks only to give an overview of the issues to raise awareness for the conservator; it is not an in-depth discussion of each of the potential claims that could be brought by artists when a conflict arises over a conservator's work.

5.2 OTHER FEDERAL SOLUTIONS: THE LANHAM ACT

Section 43(a) of the Lanham Act, a federal statute regulating trademarks, prohibits “palming off” or “passing off,” providing another source of protection for artists. This provision states that if someone sells goods or services and falsely designates the origin or falsely describes or represents what those goods or services are, that person may be liable to another who believes to have been harmed by such action (Lanham Act 1946). A conservator may be exposed to liability under this provision through “reverse passing off.” Generally, a reverse passing off is the unauthorized removal or obliteration of the original trademark on goods produced by another before the goods are sold. When someone other than the artist is credited for the work created by the artist, it is a false designation of origin or a false representation within the meaning of section 43(a) (Nimmer and Nimmer 1994). A violation of the Lanham Act may be found if the conservator's action constitutes a false description of representation or if the artist's name is used in such manner as to misrepresent the nature of his or her contribution to the work (Nimmer and Nimmer 1994). Court decisions have sustained an artist's right not to be falsely identified as the creator of someone else's work (House 1986). Some courts have found false identification to violate section 43(a) of the Lanham Act.

For instance, the well-known British comedy group, Monty Python, successfully sued ABC Television for copyright infringement and false designation to protect what was essentially a moral right. In that case, Gilliam v. American Broadcasting Co., Monty Python had entered into a contract with BBC to film and televise dramatic scripts of the group's work. The contract provided that BBC could reproduce and license the programs based on the scripts but restricted BBC or others from making changes or alterations. BBC licensed the programs to ABC, which subsequently edited down the program time to allow for commercials and then aired the shows. Monty Python characterized the commercial interruptions and edits as mutilations that damaged the integrity of the work. Although at the time of the case, American copyright law did not protect such moral rights, the court upheld these claims on the theory that the ABC edits had substantially altered the work and exceeded the scope of the licensing agreement. The court held, on alternative grounds, that when ABC edited the work and attributed it to Monty Python, it erroneously attributed authorship of the edited work to the group and that such attribution constituted a false designation of origin and thus misrepresented the author's work in violation of federal trademark laws. Further, the court found that Monty Python's reputation suffered damage from an altered version of the work because the “public [had] only the final product by which to evaluate the work,” and the shortened final product did not fairly represent the artists. The court extended “moral rights” protection to the artists through a combination of the Lanham Act and contract laws.

5.3 COMMON-LAW RESPONSES

The traditional court system provides other courses of action for artists and artists' estates seeking compensation for conservation that they assert to be harmful to the artist. The common law has provided protection similar to the right of attribution and the right of integrity (House 1986). As has been explained, although the right of attribution was expressly rejected, prior to VARA an artist was not completely without recourse. One solution for the artist if a work had been negligently restored was to disavow authorship of the work. Furthermore, a number of legal theories provided protection similar to the right of attribution. These common-law rights are still available: contract and tort law claims including false light, misappropriation, and fraud.

Contract law may provide protections similar to moral rights. For example, a contractual provision may resemble the right of attribution if it requires that the artist receive credit for the work (House 1986). However, the artist has the burden to negotiate the obligation to give credit. The right of attribution under contract law is not presumed. Furthermore, the conservator may have a contract with an artist or the artist's estate to restore the work properly. Courts could also extend protection similar to the right of integrity under contract law by invoking implied covenants of fair dealing and good faith. Courts could also resort to industry practice as a standard for interpreting contracts to close contractual loopholes that have sometimes shielded users who make substantial changes that affect the artist's honor or reputation (House 1986).

Tort law may also provide protection similar to the rights of attribution and integrity. An artist may bring a claim of defamation if a work falsely attributed to the artist is of an inferior quality and consequently damage his or her reputation (Nimmer and Nimmer 1994). A defamation action may also prevail where the publication of the work casts discredit upon the artist (Nimmer and Nimmer 1994). False attribution of a work or intentional damage to a work may be construed as libel (House 1986). If an artist claimed attribution to a work created by another, that artist could be held liable for common law fraud or misappropriation. These examples illustrate how both statutory and common-law laws provided and continue to provide a partial coverage of moral rights but failed to explicitly cover all reputational concerns.

Publication under the artist's name with unauthorized changes may violate these rights, the right of privacy, or the right of publicity (Nimmer and Nimmer 1994). Although ordinarily the artist may not object to the use of his or her name in connection with a work, when such use is a truthful statement, a claim of an invasion of privacy may be found when the truthful attribution appears in connection with the unauthorized publication of a previously unpublished work in circumstances where the artist reasonably regarded the work as not worthy of publication and the use of the artist's name suggests to the public his or her approval of such publication (Nimmer and Nimmer 1994).

5.4 VARA AND SIMILAR STATE STATUTES

5.4.1 State Statutes

Recognizing the limitations of common-law treatment of moral rights, some states have adopted statutory provisions recognizing moral rights. In addition to the federal law, a number of states have enacted statutes that provide protection for artists.2 All of these statutes recognize the moral rights of integrity and attribution, although the scope varies depending on the purpose of the legislation.

Essentially, these statutes fall into three categories as defined by their purposes (House 1989). California and New York were the first states to enact moral rights statutes protecting artists and their work. These states set two different approaches. The California statute, enacted in 1979, emphasizes the preservation of the work. The preservation model, followed in Connecticut, Massachusetts, and Pennsylvania, sets out the intent to protect artistic works from destruction and provides the rights of attribution and integrity (House 1989). The New York statue, enacted in 1983, places its emphasis on protecting the artist's reputation. This artists' moral rights model, followed in Maine, New Jersey, and Louisiana, grants the rights of attribution and integrity, but destruction is not strictly considered a violation of rights since when the work is destroyed the rights can be considered extinguished (House 1989). A third approach, a public works model, as in New Mexico, has a police-power focus instead of a copyright-oriented focus and is intended to protect works from vandalism and safeguard works with historical or other cultural or community value (House 1989).

While these state statutes are similar to VARA, there are a few notable instances in which state laws are crucially different from the federal law. In Pennsylvania and Massachusetts, moral rights survive the artist for 50 years. The standard of care required in New York, New Jersey, Nevada, Louisiana, and Rhode Island is simple negligence as opposed to the standard of gross negligence under VARA. These distinctions are important because they give artists who would not otherwise be able to make a claim under VARA an opportunity to do so.

5.4.2 The Doctrine of Preemption

Conservators must be aware of the existence of state moral rights statutes because these state laws and VARA provide similar protections, and a conflict potentially exists over which law to apply. Generally a federal law will preempt a state law. Preemption is a judicial doctrine fashioned by the Supreme Court. For certain matters of national importance, the Constitution gives the federal government exclusive legislative jurisdiction. As prescribed by the Supreme Court, a federal law will take precedence over state law. This does not mean that state and federal law cannot coexist, but federal law will apply and state law will be invalidated when Congress chooses to enact a statute so as to occupy the entire “field,” or subject area. For instance, the Constitution gives Congress the power to regulate interstate commerce, and Congress chose to enact statutes so broad that many state statutes attempting to regulate commerce have been held preempted by federal law and are consequently invalid.

When Congress passed VARA it amended the section of the statute that specifies the duration of the copyright to specifically preempt and abolish or invalidate any equivalent state provisions that would extend the duration of the moral rights granted by VARA (Copyright Act 1976). One interpretation of the statute is that, as of the effective date of VARA, all similar state provisions regarding the duration of the copyright are void. This argument has the support of William Perry, former register of copyrights. Others, including Stephen E. Weil, author of the foremost treatise on art law, Smithsonian scholar emeritus, and former deputy director of the Hirshhorn Museum and Sculpture Garden in Washington, D.C., argue that some state provisions may not be preempted and might be valid. The proponents of the position that the state statutes are not fully preempted argue that because the state laws expand the duration of the copyright they confer broader protection to the artist, and if the protection is greater, then Congress has not completely occupied the field.

Both arguments carry considerable legal weight and influence the ongoing judicial debate. Until the Supreme Court accepts a case that tests the validity of the preemption of the state statutes, the only prudent approach is to assume that the state provisions are valid. While the legal and art worlds wait for a definitive answer to the preemption question, conservators should conduct themselves under the assumption that state statutes are constitutionally valid. Conservators should, therefore, be even more careful when working in states such as New York, which imposes a duty of avoidance of simple negligence for conservation, and should assume that a claim for a violation of moral rights can be asserted after an artist's death in states such as Pennsylvania and Massachusetts.

A few courts have focused on whether VARA preempts state-enacted moral rights. For example, in Gegenhuber v. Hystopotis Productions the court determined that VARA did not preempt a state provision against “passing off” when a theater company removed the names of two artists who contributed to the design, production, and performance of a children's puppet show. The production company used the narrow definition of VARA rights in an effort to eliminate the state-level claims. In some circumstances, conservators may find that VARA may work to their advantage.