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Pragmatism, Economics, and the Droit Moral Thomas F NORTH CAROLINA LAW REVIEW Volume 76 | Number 1 Article 3 11-1-1997 Pragmatism, Economics, and the Droit Moral Thomas F. Cotter Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L. Rev. 1 (1997). Available at: http://scholarship.law.unc.edu/nclr/vol76/iss1/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. PRAGMATISM, ECONOMICS, AND THE DROIT MORAL THOMAS F. COTTER7 Under the continental doctrine of droit moral, or moral right, the creator of a work of authorship (such as a literary work, a painting, or a film) is viewed as having an inalienable right to prevent others from, among other things, modifying, distorting,or otherwise interfering with the integrity of that work-even after the creator alienates both the physical object in which the work is embodied and its copyright. Over the past two decades, a somewhat weaker version of the doctrine has begun to make inroads into American law as well, culminating in the passage of the Visual Artists Rights Act of 1990. In this Article, Professor Cotter examines the doctrine of moral right through the lens of philosophicaland legal pragmatism. Applying first the insights of pragmatic aesthetic theorists, he considers the implications of the droit moral on "art as experience." Second, he applies economic analysis in an effort to predict the likely consequences of moral rights upon the well-being of artists,patrons, and audiences. He concludes that the weak version of the doctrine adopted in the United States has much to recommend it from both a philosophicaland economic perspective, but that the more robust version adopted in France and Germany imposes too substantiala risk of stifling artisticinnovation and experimentation. I. INTRODUCTION ..............................................................................2 II. AN OVERVIEW OF THE DROIT MORAL .....................................6 A. PhilosophicalAntecedents ....................................................6 B. Moral Rights in Franceand Germany................................ 10 C. moral Rights in the United States .........................................15 III. A PRAGMATIC ANALYSIS OF MORAL RIGHTS ...................... 27 * Associate Professor of Law, University of Florida College of Law. I wish to thank Margreth Barrett, Jeffrey L. Harrison, Paul J. Heald, Roberta Rosenthall Kwall, Lyrissa Barnett Lidsky, John Henry Merryman, Elizabeth A. Scheffler, and Christopher Slobogin for their comments and criticisms; Elise Batsel and Richard Brooderson for their research assistance; Catherine Morand for her translations of French case law; Andrea T. Sanseverino Galan and Cheryl W. May of the Center for Arts and Culture for providing me with information on arts funding; and the University of Florida Summer Research Grant Program for its support. Any errors that remain are mine. NORTH CAROLINA LAW REVIEW [Vol. 76 A. PragmaticAesthetics ........................................................... 28 B. PragmaticAesthetics and Moral Rights ............................. 36 C. The Economics of Moral Rights ......................................... 47 1. Waivable Moral Rights vs. No Moral Rights ............. 47 a. Transaction cost analysis ....................................... 51 b. Offer/asking price gaps ............................................ 58 2. Nonwaivable Moral Rights vs. No Moral Rights ..... 67 3. Third-Party Effects ........................................................ 73 4. Limitations of the Economic Approach ..................... 76 IV. SOME TENTATIVE CONCLUSIONS ............................................ 84 I. INTRODUCTION In a collection of essays entitled Testaments Betrayed, the novelist Milan Kundera quotes from correspondence between the composer Igor Stravinsky and the conductor Ernest Ansermet concerning Ansermet's plan to make certain cuts in Stravinsky's composition Jeu de Cartes during a performance that was to take place in Paris on October 27, 1937.1 In a letter to Ansermet dated October 14, 1937, Stravinsky forbade the proposed alterations, stating that they were likely to distort the work and that it would be "'better not to play it at all than to do so reluctantly.' ,2 A few days later, Stravinsky refused Ansermet's amended request to make one "'small cut in the March from the second measure of 45 to the second measure of 58,' " arguing that even this relatively modest alteration would "'cripple[ ] my little March, which has its form and its structural meaning in the totality of the composition (a structural meaning that you claim to be protecting).' "" In conclusion, Stravinsky wrote: You cut my March only because you like the middle section and the development less than the rest. In my view, this is not sufficient reason, and I would like to say: "But you're not in your own house, my dear fellow"; I never told you:5 "Here, take my score and do whatever you please with it." 1. See MILAN KUNDERA, TESTAMENTS BETRAYED 243-46 (Linda Asher trans., 1995). 2. Id. at 244 (quoting Letter from Igor F. Stravinsky to Ernest Ansermet (Oct. 14, 1937), in 1 STRAVINSKY: SELECTED CORRESPONDENCE 226 (Robert Craft ed., 1982), with several minor word changes). 3. Id. at 245 (quoting Letter from Ernest Ansermet to Igor F. Stravinsky (Oct. 15, 1937), in 1 STRAVINSKY: SELECTED CORRESPONDENCE, supra note 2, at 227). 4. Id, (quoting Letter from Igor F. Stravinsky to Ernest Ansermet (Oct. 19, 1937), in 1 STRAVINSKY: SELECTED CORRESPONDENCE, supra note 2, at 226). 5. Id.; cf. Bernard Holland, Updated, and That's Not All, N.Y. TIMES, Oct. 7, 1996, at 1997] THE DROIT MORAL For a contrasting perspective, consider the case of the late nineteenth/early twentieth-century composer and conductor Gustav Mahler. Although one might expect Mahler, as a composer, to have shared Stravinsky's passion for faithful adherence to the score, at least in his role as conductor Mahler exhibited few inhibitions when it came to altering the works of other composers-for example, by introducing thematic alterations and suggested cuts into the works of Schumann,6 by making cuts to the second and fourth movements of Bruckner's Romantic Symphony,' and by altering the orchestration of Beethoven's Ninth Symphony.8 Many of Mahler's contemporaries objected to these alterations,9 although at least one critic thought that Mahler had shown the Bruckner work "love and comprehension, whereas others battled 'for the letter of the law, and against Bruckner.' ,,1o Mahler himself responded to critics of the Beethoven interpretation by arguing that Beethoven's deafness had caused him to lose contact with the reality of physical sound; that, in light of the improvement in the quality of brass instruments since Beethoven's day, "it would be a crime not to use them to give a more perfect rendering of Beethoven's works"; and that the "customary increase in the number of stringed instruments has made it equally necessary to increase the number of wind instruments, and this was done solely to balance the volume of sound and not to give instruments a new significance."'1 Cl (speculating whether Stravinsky's heirs would sue over director Peter Sellars's inventive production of Stravinsky's opera The Rake's Progress). 6. See KURT BLAUKOPF, GusTAv MAHLER 155-56 (1973) (discussing Mosco Carner's investigations into Mahler's Schumann arrangements). 7. See 2 HENRY-LOUIS DE LA GRANGE, GUSTAV MAHLER 231 (1995). 8. See BLAUKOPF, supra note 6, at 150-56; 2 DE LA GRANGE, supra note 7, at 232- 37; MICHAEL KENNEDY, MABLER 63-64 (1990). 9. See BLAUKOPF, supra note 6, at 150-52, 156; 2 DE LA GRANGE, supra note 7, at 231,233-37. 10. 2 DE LA GRANGE, supra note 7, at 232 (paraphrasing and quoting uncited review by Wiener Abendpost music critic Robert Hirschfeld, following January 28, 1900, performance of Vienna Philharmonic Orchestra). Compare the following story told by Alastair Reed, concerning his English translation of Pablo Neruda's poetry: [Neruda] was always ready to answer any questions I had about [the poems], even to talk about them, fondly, as about lost friends, but he was not much interested in the mechanics of translation. Once, in Paris, while I was explaining some liberty I had taken, he stopped me and put his hand on my shoulder. "Alastair, don't just translate my poems. I want you to improve them." Alastair Reid, Neruda and Borges, NEW YORKER, June 24 & July 1, 1996, at 56, 70. 11. KENNEDY, supra note 8, at 208 (quoting leaflet prepared by Mahler and distributed prior to Vienna Philharmonic Orchestra concert of February 22, 1900); see also BLAUKOPF, supra note 6, at 153-55 (describing controversy over Mahler's interpretation of Beethoven); 2 DE LA GRANGE, supra note 7, at 232-37 (same). NORTH CAROLINA LAW REVIEW [Vol. 76 In a nutshell, these stories illustrate the tension that often arises between the "author" 12 of a creative work, on the one hand, and those who would like to perform, display, or otherwise use the work, on the other. Should Stravinsky have had the right to stop Ansermet from performing an altered version of Jeu de Cartes-even if, let us suppose, Stravinsky no longer owned the copyright to the work-or should the conductor have had free rein to use Stravinsky's work to
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