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Clashing Rights Under United States Copyright Law: Harmonizing an Employer's Economic Right with the Artist-Employee's Moral Rights in a Work Made for Hire

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Clashing Rights Under United States Copyright Law: Harmonizing an Employer's Economic Right with the Artist-Employee's Moral Rights in a Work Made for Hire DePaul Journal of Art, Technology & Intellectual Property Law Volume 7 Issue 2 Spring 1997 Article 3 Clashing Rights Under United States Copyright Law: Harmonizing an Employer's Economic Right with the Artist-Employee's Moral Rights in a Work Made for Hire Colleen Creamer Fielkow Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Colleen C. Fielkow, Clashing Rights Under United States Copyright Law: Harmonizing an Employer's Economic Right with the Artist-Employee's Moral Rights in a Work Made for Hire, 7 DePaul J. Art, Tech. & Intell. Prop. L. 218 (1997) Available at: https://via.library.depaul.edu/jatip/vol7/iss2/3 This Lead Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Fielkow: Clashing Rights Under United States Copyright Law: Harmonizing an LEAD ARTICLE CLASHING RIGHTS UNDER UNITED STATES COPYRIGHT LAW: HARMONIZING AN EMPLOYER'S ECONOMIC RIGHT WITH THE ARTIST-EMPLOYEE'S MORAL RIGHTS IN A WORK MADE FOR HIRE* Colleen Creamer Fielkow** INTRODUCTION ...................................... 219 I. MORAL RIGHTS BACKGROUND ...................... 221 A. Moral Rights Theory .......................... 221 1. Berne Convention .......................... 222 B. The Visual Artists Rights Act of 1990 .............. 225 1. Identified Rights ........................... 226 2. Works Created ............................ 230 3. IndividualsProtected ....................... 232 II. WORK MADE FOR HIRE ............................ 234 III. CLASH ILLUSTRATED: CARTER V. HELMSLEY-SPEAR, INC. .. 241 A. Background ................................. 242 B. DistrictCourt Determination .................... 243 C. Second CircuitReview ......................... 246 IV. ANALYSIS ...................................... 250 A. Carter v. Helmsley-Spear: Flawed Application Exposed .............................. 251 B. Reid Factors:A TailoredApproach ............... 256 C. VARA Revised: Recognizing Moral Rights in Employee- Visual Artists ................................... 260 CONCLUSION ........................................ 263 * An earlier version of this article received first prize in the 1996 Nathan Burkan Memorial Competition at the DePaul University College of Law, sponsored by the American Society of Composers, Authors, & Publishers ("ASCAP"). - ** B.A. 1993, University of Wisconsin at Madison; J.D. anticipated June, 1997, DePaul University College of Law. I am extremely grateful to Professor Roberta Rosenthal Kwall for her insight and guidance. Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 7, Iss. 2 [2016], Art. 3 219 DEPAUL J ART & ENT. LAW [Vol. VII:218 "A work of art.., is aform created by the artistout of human experience. At the same time it has a cultural context. It exists in time, and itsform reflects the forces of that of that time--social, economic, political,and religious."I INTRODUCTION It was only recently that United States law recognized the substance of that statement. The copyright protection afforded in this country for most of its existence only recognized the economic, utilitarian purposes of protecting art.' In 1990, the United States joined the world copyright community in recognizing the "moral rights" visual artists have in their creations.3 This right encompasses the personal and spiritual component that an artist embodies in her work.4 United States copyright law also recognizes the employer's rights in the creation of copyrightable works. The work made for hire provision of the 1976 Copyright Act5 entitles an employer to copyright ownership in a work created and/or produced by its employee-creator.6 An employer's ownership right is "entrenched" in United States copyright law to provide financial incentives to create.7 Based on the theory that moral rights can only be exercised by a creator of art and that this right exists independently of the economic 1. 136 CONG. REC. 12,609 (1990) (statement of Rep. Markey) (quoting Helen Gardner, arts scholar and historian). 2. Roberta Rosenthal Kwall, Copyrightand the MoralRight: Is an American Marriage Possible?, 38 VAND. L. REV. 1, 1 (1985) (noting the United States "tradition of safeguarding only the pecuniary rights of a copyright owner"). 3. Visual Artists Rights Act, Pub. L. No. 101-650, 104 Stat. 5128, 5128-33 (1990) [hereinafter "VARA"] (codified in scattered sections of 17 U.S.C.). VARA only protects moral rights in works of visual art. See infra Part I. 4. See Kwall, supra note 2, at 7 (describing moral rights as derived from a creator "project[ing] his personality into his work"). 5. 17 U.S.C. § 201 (b) (1994). 6. See infra Part II. 7. See Kwall supranote 2, at 71. https://via.library.depaul.edu/jatip/vol7/iss2/3 2 Fielkow: Clashing Rights Under United States Copyright Law: Harmonizing an 1997] MORAL RIGHTS JN A WORK FOR HIRE 220 right in exploiting the copyrighted work, both of the following statements should be true: 1) An employer of a work made for hire cannot exercise moral rights in the work, but enjoys the economic right in'the copyrighted work; and 2) an employee-creator whose work is a work made for hire can exercise her moral rights but cannot enjoy the economic right in the copyright. Under the current interpretation of copyright doctrine in the United States, the first assertion is true but the second is not. The theories suggest that moral and economic rights should live in harmony, but U.S. copyright law demonstrates that these rights clash in a work for hire situation, with moral rights the sacrificed element! This Article concerns the clash between the work made for hire doctrine and the moral rights doctrine. The consequence of a work for hire determination is especially damaging to an artist's moral rights when the protection of irreplaceable art work from destruction is extinguished based on a finding of an employer-employee relationship. This consequence is illustrated by the recent Second Circuit decision in Carterv. Helmsley-Spear, Inc.9 where three artists were denied injunctive relief to prohibit the defendant building owners from modifying or destroying the artists' walk-through sculpture in the lobby of defendant's building. The Second Circuit denied relief under the Visual Arts Rights Act (hereinafter VARA or Act), holding that this art was a work made for hire and therefore fell outside of the statutory protection. The clash of economic rights and moral rights involves two areas of copyright doctrine and, therefore, this Article reviews both doctrines and provides suggestions for harmonizing them. Part I explores the backdrop of moral rights abroad and the recent acceptance of those rights in the United States. Part II reviews the work made for hire provision and the Supreme Court's decision in Communityfor Creative Non-Violence v. Reid. ° Part III illustrates the essence of the conflict through a review of Carter v. Helmsley- Spear, Inc. Part IV analyzes the conflict and recommends ways to 8. See infra Part IH. 9. 71 F.3d 77 (2d Cir. 1995), cert. denied, 116 S.Ct. 1824 (1996); see infra Part HI. 10. 490 U.S. 730 (1989); see infra Part II. Published by Via Sapientiae, 2016 3 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 7, Iss. 2 [2016], Art. 3 221 DEPAUL J ART& ENT. LAW [Vol. VII:218 harmonize these competing interests. This Article suggests that the current "Reid Factors" for determining employee status be applied in a more consistent fashion, with an eye towards vindicating the purposes of current U.S. moral rights legislation. However, the ultimate remedy for this clash between the rights of the employer and employee-artist cannot be fully realized with ajudicial test and must be addressed legislatively. Thus, the advocated approach is a recognition of moral rights for employee-artists. I. MORAL RIGHTS BACKGROUND A. Moral Rights Theory The theory of moral rights, or droit moral, distinguishes the economic component of a created work from the embodiment of the creator's personality in the work." Thus, the creator's economic rights in her work exist independently of her personal rights. It is the protection of the creator's personal expression and spiritual embodiment within her work which constitute her moral rights.' 2 European and other countries have long recognized the theory of moral rights, although there is no uniform concept between the foreign jurisdictions."3 Despite the international inconsistency, the largest international agreement on copyright does attempt to provide a broad provision for moral rights recognition. 4 This agreement, well known as the Berne Convention, provides a model for moral rights and serves as a basis for current U.S. legislation. A brief overview of this international agreement is useful to illustrate the U.S. recognition of moral rights. 11. Edward J. Damich, The Visual Artists Rights Act of 1990: Toward a FederalSystem of Moral Rights Protection For Visual Art, 39 CATH. U.L. REV. 945,949(1990). See Kwall, supra,note 2, at 5-10 for discussion of the moral right components with accompanying hypothetical. 12. See Damich, supranote 11, at 949 (noting that the legal protection of this personal component gives rise to the moral right). 13. Kwall, supranote 2, at 9-10. 14. William Belanger, US. Compliance with the Berne Convention, 3 GEO.
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