UCLA UCLA Entertainment Law Review Title CAUTION-Contains Extremely Offensive Material: David Wojnarowicz V. American Family Association, The Visual Artists Rights Act, and A Proposal To Expand Fair Use To Include Artists’ Moral-Rights Permalink https://escholarship.org/uc/item/5zd4m547 Journal UCLA Entertainment Law Review, 22(1) ISSN 1073-2896 Author Leggin, Sarah Publication Date 2014 DOI 10.5070/LR8221025204 Peer reviewed eScholarship.org Powered by the California Digital Library University of California CAUTION— Contains Extremely Offensive Material David Wojnarowicz v. American Family Association, the Visual Artists Rights Act, and a Proposal to Expand Fair Use to Include Artists’ Moral-Rights Sarah Leggin* I. INTRODUCTION �����������������������������������������������������������������������������������������������������75 II. MORAL RIGHTS PROTECTIONS �������������������������������������������������������������������������������78 A. Background of Moral Rights ���������������������������������������������������������������������78 B. The Enactment of the Visual Artists Rights Act and its Protection ������������80 C. State Protection of Moral Rights ���������������������������������������������������������������82 III. WOJNAROWICZ V. AMERICAN FAMILY ASSOCIATION ����������������������������������������������������83 IV. PROTECTION OF MORAL RIGHTS THROUGH THE FAIR USE DOCTRINE �����������������������86 A. The Fair Use Doctrine �������������������������������������������������������������������������������86 B. Moral Rights As Fair Use ��������������������������������������������������������������������������88 V. CONCLUSION �������������������������������������������������������������������������������������������������������93 I. INTRODUCTION While some artists build their careers by offending or challenging mainstream culture, these artists still strive to protect their reputations and the integrity of their works� These artists do not seek public approval� Rather, they wish to hold the right to control the way in which they, and their works, are represented to the public� These rights are referred to as “moral rights�” The concept of moral rights origi- nated from the French term “droit moral,” which describes the idea that an author— writer, artist, creator—has a personal connection to his or her creations, and thus has * American University Washington College of Law; BA Duke University, 2008� The author would like to thank her family, friends, editors, colleagues, and professors whose support has been invaluable� Special thanks are owed to Professors Peter Jaszi and Joshua J� Kaufman for their inspiring intellectual curiosity and expertise� Sarah K� Leggin is an Associate at Steptoe & Johnson LLP� The views expressed in this article are those of the author and do not reflect the opinions of the firm. This material is provided for educational and informational purposes only and does not constitute the rendering of legal counseling or other professional services. No attorney−client relationship is created, nor is there any offer to provide legal services by the distribution of this material� © 2014 Sarah Leggin� All rights reserved� 75 75 76 UCLA ENTERTAINMENT LAW REVIEW [VOL. 22:75 a right to control the eventual fate of those works�1 An artist’s moral rights are tied to more than just an artist’s claim to monetary compensation for her work; they are also tied to the artist’s claim of control over the “personal and reputational aspects of the creation�”2 While European countries have recognized the importance of protecting the moral rights of artists and have codified moral rights protections throughout their copyright laws,3 the United States has yet to embrace the value of artists’ rights in a similar fashion�4 The U�S� Constitution establishes intellectual property rights through the stated-goal of “promot[ing] the Progress of Science and useful Arts,”5 which provides the authority under which the Copyright Act6 and Patent Act7 were enacted� This theoretical foundation for intellectual property law is undergirded by utilitarian and economic considerations, and is aimed at striking a balance between rewarding the labor of creators and incentivizing useful creation and shared creativ- ity�8 Under U�S� copyright law, subject to the limitations imposed by section 106, once an author has licensed or transferred ownership of his copyright, the transferee is entitled to reproduce and adapt the work, as well as authorize others to do so�9 The 1 See Betsy Rosenblatt, Moral Rights Basics, BERKMAN CENTER FOR INTERNET AND SOC’Y, HARVARD UNivERSITY (Mar� 1998), http://cyber�law�harvard�edu/property/library/moralprimer�html� The term “moral rights” has its origins in civil law and is a translation of the French le droit moral, which is meant to capture those rights of a spiritual, non-economic and personal nature� The rights spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist›s personality, as well as the integrity of the work, should therefore be protected and preserved� See RALPH E. LERNER & JUDITH BRESLER, ART LAW: THE GUIDE FOR COLLECTORS, INVESTORS, DEALERS & ARTISTS 417 (1989) [hereinafter ART LAW]; see generally Office of the Register of Copyrights, United States Copyright Office, Resale Royalties: An Updated Analysis (Dec� 2013), available at http://copyright�gov/docs/resaleroyalty/usco-resaleroyalty�pdf� 2 Id. 3 See Marjut Salokannel, Alain Strowel, & Estelle Derclaye, Study Contract Concerning Moral Rights in the Context of the Exploitation of Works Through Digital Technology: Final Report, EUROPEAN COM- MISSION 5-154 (Apr� 2000), http://ec�europa�eu/internal_market/copyright/docs/studies/etd1999b53000e28 _en�pdf� 4 “Although moral rights are well established in the civil law, they are of recent vintage in American jurisprudence� Federal and state courts typically recognized the existence of such rights in other nations, but rejected artists’ attempts to inject them into U�S� law�” Carter v� Helmsley- Spear, Inc�, 71 F�3d 77, 82 (2d Cir� 1995) (citing Vargas v� Esquire, Inc�, 164 F�2d 522, 526 (7th Cir� 1947); Crimi v� Rutgers Presby- terian Church, 194 Misc� 570, 573–76 (N�Y�Sup�Ct�1949)� Nonetheless, American courts have in varying degrees acknowledged the idea of moral rights, cloaking the concept in the guise of other legal theories, such as copyright, unfair competition, invasion of privacy, defamation, and breach of contract� See also MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 8�D (1994); LERNER & BRESLER, supra note 1, at 423� 5 U�S� CONST. art� I, § 8� 6 17 U�S�C� §§ 101-1332 (2012)� 7 35 U�S�C� §§ 1-390 (2012)� 8 See generally, e.g., COMMENTS OF THE COPYRIGHT ALLIANCE, STUDY ON THE RIGHT OF MAKING AVAIL- ABLE; REQUEST FOR COMMENTS, 2, http://copyright�gov/docs/making_available/comments/docket2014_2/ Copyright_Alliance�pdf; Jodie Griffin, The Economic Impact of Copyright, PUBLIC KNOWLEDGE (Oct� 2012), https://www.publicknowledge.org/files/TPP%20Econ%20Presentation.pdf; Copyright: An Inter- pretation of the Code of Ethics, AMERICAN LIBRARY ASSOCIATION (Jul� 1, 2014), http://www�ala�org/advoca- cy/proethics/copyright� 9 H�R� REP� 94-1476 (1976), at 79, reprinted in 1976 U�S�C�C�A�N� 5659, 5693 (“Section 109(a) 2014] Contains EXtremely OFFENSIVE Material 77 author, having been compensated for the transfer, can no longer control the use of his work by the transferee, the new copyright owner�10 But alongside these incentive-focused foundational principles, intellectual prop- erty concepts in the U�S� have also developed in response to less pragmatic or mea- surable values like changing cultural values, norms, and creations�11 America’s mu- sicians, filmmakers, photographers, sculptors, and painters are crucial players in the creation of culture, despite the fact that their contributions may not be easy to quan- tify, translate to monetary terms, or evaluate based on contributions to job creation or economic growth�12 The value these creators add to our cultural narrative merits pro- tection�13 However, creating a mechanism that properly recognizes and protects the intangible connection between artists’ identity and their individual works is challeng- ing, and even seemingly inconsistent with the incentive-based theory upon which the U�S� intellectual property protection system is built� Today, federal copyright law recognizes moral rights for visual works that fall within narrow categories under the Visual Artists Rights Act of 1990 (VARA)�14 Among other rights, VARA gives an artist the right to “prevent any intentional dis- tortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation�”15 The scope of this protection is limited, as it only ap- restates and confirms the principle that, where the copyright owner has transferred ownership of a partic- ular copy or phonorecord of a work, the person to whom the copy or phonorecord is transferred is entitled to dispose of it by sale, rental, or any other means� Under this principle, which has been established by the court decisions and section 27 of the present law, the copyright owner’s exclusive right of public distribu- tion would have no effect upon anyone who owns ‘a particular copy or phonorecord lawfully made under this title‘ and who wishes to transfer it to someone else or to destroy it�”)� 10 This concept is exemplified by the exchange of economic privilege for rights provided under the First Sale Doctrine� 17 U�S�C� § 109(a)