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The Florida Bar
www.floridabar.org
The Florida Bar Journal
October, 2007 Volume 81, No. 9
In this Digital Age, Are We Protecting Tomorrow's "Masterpieces"? Protection of the Moral Rights of the Digital Graphic Artist

by Peter E. Berlowe, Laura J. Berlowe-Heinish, and Peter A. Koziol

Page 30

In Florida, where an original work of a digital graphic artist who is well-known and respected in his or her artistic community exists only on a floppy or compact disk and is later mutilated, distorted, published with misattribution to the artist, then destroyed, does the artist have a legal cause of action for a violation of his or her “moral rights”? To answer this question, it must be determined what moral rights are and if they extend to digital art. The supremacy clause of the U.S. Constitution requires that federal law be considered first.2 Thus, after a brief explanation of what constitutes moral rights, this article examines the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. §106(a), and how it applies to digital art. Next, the article considers the scope of VARA’s protection and Florida laws that may provide artists additional rights not preempted by this federal law. In sum, this article shows why digital graphic art is entitled to protection under both federal and Florida law.

What Are Moral Rights?
“Moral rights” derive from a European concept called “droit moral.” Essentially, an artist’s moral rights are the rights of the artist to create a work, to display the work to the public in whatever form he or she chooses, to withhold the creation from the public, and to demand respect for his or her personality as the creator of a work.3 This summary can be broken down further into specific categories of rights. Those rights are as follows:4

1) The right to create or not to create.

2) The right to disclose the work and to choose when to
do so.

3) The right to withdraw the work from publication.

4) The right of attribution or claim to authorship and the
right to disclaim authorship.

5) The right to freedom from excessive criticism.

6) The right to freedom from mutilation, destruction, or distortion of one’s work (i.e., the integrity right).

These rights are different from those conferred by copyright law. Copyright law creates an economic interest in original works, which can be bought and sold.5 Copyrights often extend beyond the life of the author. Moral rights, on the other hand, are inalienable from the author and last only for the duration of his or her life.6

VARA Protects Moral Rights and Applies to Digital Art
VARA is the result of the United States’ accession in 1988 to the Berne Convention for the Protection of Literary and Artistic Works and became effective on June 1, 1991.7 Describing the act, the Supreme Court noted that the purpose of VARA is to protect the moral rights of certain visual artists and stated that, “[VARA] is analogous to Article 6(b) of the Berne Convention for the Protection of Literary and Artistic Words, but its coverage is more limited.”8 Congress intended VARA’s purpose to be limited to the preservation and protection of certain original works of art,9 and only for the lifetime of the artist.10 Thus, VARA is not as expansive in its protection as the European droit moral.

VARA protects original “works of visual art.” These are defined to include paintings (i.e., murals, works on canvas, and the like), drawings, printings (i.e., lithographs, serigraphs, and etchings), sculptures, and still photographs created for exhibition.11 Excluded are “works for hire,”12 posters, maps, globes, charts, technical drawings, diagrams, models, applied art,13 motion pictures, audio visual works, books, magazines, newspapers, periodicals, data bases, electronic information services, electronic publications and similar publications, merchandising items, advertising, promotional, descriptive, covering, packaging materials, and containers.14 Multiples of works are included so long as they exist in signed, numbered, limited editions of no more than 200.15 The works protected by VARA are narrower in scope than those protected by copyright law.

Courts confronting avant-garde artists may have difficulty in determining whether a work is covered by VARA, yet VARA’s legislative history is unambiguous when it states that courts are expected to use both “common sense” and “generally accepted standards of the artistic community” to determine whether the act protects a particular work.16 “Artists may work in a variety of media, and use any number of materials in creating their works. Therefore, whether a particular work falls within the definition should not depend on the medium or materials used.”17

Consider the language in VARA and the plain and ordinary meanings of “painting” and “drawing.” A painting is a “work produced through the art of painting.”18 “[P]aint” means “to apply color, pigment, or paint, to apply with a movement resembling that used in painting, and to produce in lines and colors on a surface by applying pigment.”19 “Drawing” is “the art or technique of representing an object or outlining a figure, plan, or sketch by means of lines,”20 and the verb “draw” is defined as “to produce a likeness or representation of by making lines on a surface.”21 Clearly, by definition, neither painting nor drawing requires the use of particular tools. Hence, applying lines or color to the virtual surface of a computer screen by the use of a mouse, touch screen, or other technological device, is a drawing or painting under the plain meaning of both those terms as they are used in VARA.

This leaves the question — when the painting or drawing is digitally created on a computer — is there something inherent in the nature of the end product that precludes it from being classified as a work of art?22 Well-known engineer/artist Robert E. Mueller has carefully considered this question.23 In 1983, seven years before VARA was enacted, Mueller found that the general consensus about computer graphics as art to be “upbeat and reassuring.”24 Mueller was critical of what was being produced as graphic art. He felt that to accept “any work” produced by a computer as art would harm the potential for recognition of graphic art as legitimate or fine art.25 Mueller said that for graphic art to be “fine art” it must go beyond its inherent “mathematico-lissajou-feedback design qualities.”26 Essentially, what Mueller was saying is that the automated qualities, technical constraints, and use of repetitive patterns make it difficult for a well trained critic to consider computer art as “fine art.” Yet Mueller also stated “[I]t is because I think that serious, fine art and music can be created using computer techniques, that I am so critical.”27

Mueller’s opinions are put into perspective by considering that acclaimed artist, Georges Seurat, is often criticized for the near scientific way that he tackled the issues of color, light, and form in his pointillist28 paintings.29 Even a Renoir can be scanned into a computer and translated into its mathematical representation of ones and zeros. Thus, art transcends its mathematical representation and exists independent of its medium.

Digital art is categorically accepted by the mainstream today. It is part of the foundational studies for young artists. For example, the Corcoran College of Art and Design in Washington, D.C., which was founded in 1890, now requires that all first year bachelor of fine arts students be introduced to “digital media design” and “graphic design” in their first year.30 Likewise, a bachelor of fine arts at the University of Miami requires an “Introduction to Electronic Media” as a “foundation course” and offers specializations within the bachelor of fine arts degree in “graphic design/multimedia” and “photography/digital imaging.”31 Similar programs can be found throughout the country at other schools such as Parsons in New York or the College of Visual Arts in St. Paul, Minnesota.32 The art community and its tastes are constantly developing.

This dynamic nature of art is why Congress intended VARA to be a progressive statute. Congress designed VARA so that it would evolve with the artistic community. VARA recognizes the personal connection between art and artist. The honor or reputation of the author is no less at stake when the creation is drawn with a pen on paper, or a mouse on pad.33 That is why Congress drafted VARA to cover new forms of visual expression including digital art. Digital graphic art is visual art in terms of VARA.

VARA’s Scope of Protection
The scope of VARA’s protection depends on the stature of a particular piece or the honor and reputation of a particular artist. VARA protects two integrity rights: 1) the right to prevent “intentional distortion, mutilation, or modification” of a work which harms the “honor” or “reputation” of the artist; and 2) the right to prevent the destruction of a work of “recognized stature.” 34 It also protects three “attribution” rights: 1) the right of the artist to claim authorship; 2) the right to prevent use of the artist’s name in connection with a work he or she did not create; and 3) the right to prevent the use of the artist’s name in connection with a work of visual art that he or she created that has been distorted, mutilated, or modified in a manner prejudicial to his reputation.35

For instance, if an artist’s original digital work of visual art is mutilated, distorted, destroyed, and then a derivative work is published with misattribution to the artist, all of the artist’s integrity rights have been violated to the extent that his or her reputation and honor have been harmed, or that the digital work was one of “recognized stature.” Many of the artist’s attribution rights have also been violated, but the right against misattribution of the artist toward a distorted, mutilated, or modified work also requires a determination of his or her honor or reputation.

In determining the honor or reputation of an artist, courts generally look to the artist’s “good name, public esteem, or reputation in the artistic community.”36 Yet, the legislative history of VARA shows that “an author need not prove a pre-existing standing in the artistic community . . . [, because] less well-known or appreciated artists also have honor and reputations worthy of protection.”37 The best way to define honor or reputation is to focus on “the artistic or professional honor or reputation of the individual as embodied in the work that is protected.”38 Thus, honor and reputation may arise after creation, mutilation, or destruction of the work. Although honor and reputation is an independent criterion from stature, generally, “modification of a work of recognized stature will . . . establish harm to honor or reputation.”39

The recognized stature of a work of visual art is similarly determined by an artist’s peers and the community in which the artwork is situated. The courts use a two-prong test. First, they consider if “the visual art in question . . . is viewed as meritorious.”40 Next, the courts examine whether that merit is “recognized by art experts, other members of the artistic community, or by some cross-section of society.”41 Expert testimony, past articles, and other documentary evidence may be used in establishing either of these factors.42 Both the honor and reputation of the artist and stature of the work are also factors that may be considered in determining damages.43

State Causes of Action That Survive VARA
The legislative history shows that VARA is not meant to preempt state law causes of action covering works excluded from the federal statute’s coverage.44 Such rights exist in other forms both on a state and federal level. These rights stem from common law and statutory rights such as defamation, misappropriation, privacy law, trademark law, and unfair competition.45 Florida does not have a statute specifically covering the moral rights of a “digital graphic artist,” but in some cases these other legal doctrines may extend moral rights like protection to a digital graphic artist.

For instance, if artwork contains the artist’s signature and he or she registered the signature as a trademark with the Florida secretary of state, then the artist may have a cause of action based on state trademark law.46 Also, the artist may have a cause of action under his or her right of publicity. For instance, the Florida statute for unauthorized publication of name or likeness prohibits the use of a person’s name or likeness to promote a product or service because of the way that the use associates the person’s name or personality with something else.47 Thus, if the mutilator of the digital graphic art used the mutilated version to promote product or service, the mutilator may have very well violated the artist’s statutory right to publicity. Actions under this statute would survive 40 years after the death of the artist, and for that period would not be preempted under VARA.48 There are many claims that may be available to the artist, depending on the facts or circumstances. It is essential that an attorney for a visual artist be aware of these alternate claims and is familiar with the applicable statute of limitations for each.49

Practice Pointers: Know Your Client and the Medium
Knowing who your client/artist (i.e., his or her reputation, background, education, training, skills, etc.), understanding his or her medium, and understanding the tools and technology behind that medium, is paramount to understanding your client’s legal rights. Initially, counsel should know where the artist works; what position the artist holds; who is the recipient of the artist’s work; how the artist’s work will be used; in what medium the artist works; and the reputation of the artist’s work.50 These factors all have a bearing on whether an artist has a right to make statutory and common law claims regarding misuse of his or her artwork. For instance, if the client’s claim is over a “work-for-hire,” he or she does not have a VARA claim.51

How well known the client is will have an impact on the types of claims that he or she may bring under state and federal laws and on the damages available. The meaning of “well known” can vary. For instance, the client may be well known among local collectors, well known among the entire local population, or well known on a larger scale such as the entire United States or worldwide. Generally, the greater the extent of his or her recognition and reputation, the more causes of action are available to protect his or her rights and the greater the damages may be. Favorable surveys, awards, articles, expert opinions, and Web logs may constitute evidence of his or her fame and recognition and the stature of the work.

Understanding the technology and process behind the creation of a client’s work is essential to the client’s representation. The creative process in producing digital art may well include many more steps, such as an original pencil and paper drawing; a digital version of that drawing on a computer hard drive; a copy of the original digital version saved in a manner that does not allow the addition of text; and another version saved in a manner that allows the addition of text. All of this information is relevant to a client’s “derivative works,” the potential number of claims, and the potential damages. While a client can most likely explain the technology he or she uses to a fairly accurate degree, it may be well worth the time to speak with an expert on the specific technology in use and to discuss the creative process with the client — from conception to finish.

Finally, it is prudent to advise a client on other ways to protect his or her work. These may include registering trademarks, negotiating firm licensing agreements, and using legally advantageous tools such as digital protection and electronic watermarking technology. Understanding the details of a client’s operating environment, digital technology, and the relevant legal doctrines will help provide a stronger analysis and make better recommendations.

Conclusion
Given the modern artistic climate, if a digital graphic artist were to make a moral rights claim under VARA due to the destruction of his or her original work and/or misattribution of the derivative, the claim should withstand a motion to dismiss under Federal Rule 12(b)(6). In fact, if there is a dispute among art experts as to whether this work is a “work of visual art” entitled to protection under VARA, the claim, if properly supported through the analysis stated, should also survive a motion for summary judgment. Furthermore, a Florida artist may have certain common law and statutory causes of action that address his or her moral and economic interests in the artwork. These causes of action may also survive these same pretrial motions. Consequently, before advising a digital graphic artist regarding his or her moral rights, the attorney must know the environment in which the artist works, the medium of the work, the artist’s reputation, and the stature of his or her work.

1 Daniel Bell, Technology, Nature, and Society, The Winding Passage (1980).
2 U.S. Const. art. VI, cl. 2.
3 Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artist, Authors and Creators, 53 Harvard L. Rev. 554, 578 (1940).
4 Melville B. Nimmer, Nimmer on Copyright, §8D.06[A][2].
5 But see 17 U.S.C. §203 (2007) (under specific conditions, original authors may terminate copyright transfers and licenses after 35 years). Most copyrights eventually expire. 17 U.S.C. §301 et seq.; But cf. Capitol Records v. Naxos of America, 830 N.E.2d 250, (S.D.N.Y. 2005) (holding that state copyrights that are not preempted by federal law may in some circumstances extend in perpetuity).
6 Consequently, an artist can assert or waive claims under VARA after he or she has parted with copyright ownership. Id. at §8D.06[D], 8D.06[A][2].
7 Martin A. Roeder, The Doctrine of Moral Right: A Study in the Law of Artist, Authors and Creators, 53 Harvard L. Rev. 554 (1940); Act of Dec. 1, 1990, Pub. L. No. 101-650, Sec. 610 (a), 104 Stat. 5089.
8 Quality King Distribs., Inc. v. L’Anza Research Int’l, Inc., 523 U.S. 135, 149, n. 21 (1998).
9 H.R. Rep. No. 101-514, 101st Cong., 2d Sess. 17-18 (1990).
10 17 U.S.C. §106A(d)(2007).
11 Nimmer on Copyright, §8D-64 [A][1].
12 Id.
13 The term “applied art” was introduced during the Industrial Revolution in Britain and refers to art that decorates utilitarian objects. Ask Art, the American Artist’s Bluebook, www.askart.com/AskART/lists/Art_Definition.aspx.
14 17 U.S.C. §101 (2007).
15 Id.
16 Nimmer on Copyright, §8D.06[A][1].
17 Flack v. Friends of Queen Catherine Inc., 139 F. Supp. 2d 526, 533 (S.D.N.Y. 2001).
18 Merriam-Webster Online Dictionary, www.m-w.com (definition of “painting”).
19 Id. (definition of “paint”).
20 Id. (definition of “drawing”).
21 Id. (definition of “draw”).
22 “Fine Art is art concerned primarily with the creation of beautiful objects.” Id. (definition of “fine art”).
23 Robert E. Mueller, When is Computer Art Art?, 9 Creative Computing 136 (Jan. 1983). Robert E. Mueller is both a graduate of M.I.T. in engineering and a graduate of N.Y.U. in art and has had his paintings and sculptures displayed in the New York Metropolitan Museum of Art, the Museum of Modern Art in New York City, the Victoria & Albert Museum in London, and the Pushkin Museum in Moscow among many others.
24 Id.
25 Id.
26 Id.
27 Id.
28 Pointillism is the practice in art of applying small strokes or dots of color to a surface so that from a distance they blend together. Merriam-Webster Online Dictionary, at www.m-w.com (definition of “pointillism”).
29 For example, Seurat prepared some 40 pointillist pencil sketches to get the lighting and perspective just right for the masterpiece A Sunday on La Grande Jatte-1884-Oil on Canvas.
30 Corcoran College of Art and Design, Undergraduate Freshman Foundation, www.corcoran.edu/prospective/degrees_bfa_foundation.asp.
31 University of Miami, BFA Bachelor of Fine Arts, www.as.miami.edu/art/bfa.html.
32 See, e.g., Parson’s New School of Design, Foundation, www2.parsons.edu/foundation/; College of Visual Arts, Programs: BFA: Foundation Studies, www.cva.edu/programs/pro_bfa_fndn.htm.
33 Cf. Carter v. Helmsley-Spear Inc. 861 F. Supp. 303 (S.D.N.Y. 1994) (stating, “The author of a work of visual art has the right to prevent intentional alteration of the work that would prejudice the artist’s honor or reputation, and to prevent destruction of a work of recognized stature.”).
34 Nimmer on Copyright §8D.06[C][1].
35 Id. at §8D.06[B][1].
36 Phillips v. Pembroke Real Estate, Inc., 2003 WL 23119765, 5 (citing Carter, 861 F. Supp. 303 (S.D.N.Y. 1994)).
37 Carter, 861 F. Supp. 303 (S.D.N.Y. 1994) (citing H.R.Rep. No. 101-514, 101st Cong., 2d Sess. 15, reprinted in 1990 U.S.C.C.A.N. at 6925).
38 Id.
39 Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89, 97 (D. Mass. 2003) citing H.R. Rep. No. 101-514 at 14, U.S. Code Cong. & Admin. News 6915, 6926 (1990).
40 Martin v. City of Indianapolis, 192 F.3d 608, 612 (7th Cir. 1999) (citing Carter, 861 F. Supp. at 325).
41 Martin v. City of Indianapolis, 192 F.3d 608, 612.
42 Id. at 612-613 (holding that past articles and letters were not hearsay and were admissible to establish that a work was of “recognized stature”).
43 The legal remedies available for a violation of VARA are the same as the civil, but not criminal, remedies available for copyright infringement. 17 U.S.C. §504 (2007). They can include injunction, impounding, damages, profits or statutory damages, costs, and reasonable attorneys’ fees. Id. The statutory damages range from $750-$30,000, or up to $150,000 when infringement is willful. Id. Entirely innocent infringements are capped at $200. Id.
44 H.R. Rep. No. 101-514, 101st Cong. 2d Sess. 21 (1990).
45 Fla. Stat. §770.01 et seq.; Fla. Stat. §540.08 (Appropriation); Restatement (Second) of Torts §652 (1977 Amendment); Restatement of the Law Third, Unfair Competition §46 (1993); Tyne v. Time Warner Entertainment Company, L.P., 336 F.3d 1286, 1289 (11th Cir. 2003) (holding that Fla. Stat. §540.08 prohibits the unauthorized use of a person’s name or likeness for “trade, commercial, or advertising purposes”). See, e.g., Gilliam v. American Broad. Cos., 538 F.2d 14, 24-25 (2d Cir. 1976), (holding that altering an artist’s work and attributing the new creation to the artist can violate the Lanham Act). But cf. Leigh v. Warner Bros., Inc., 212 F.3d 1210, (11th Cir. 2000) (stating that the 11th Circuit has not adopted Gilliam, and even if it did the actual artwork must be distorted or misattributed to satisfy the essential elements of a Gilliam claim).
46 The remedies for state trademark infringement are provided in part by Fla. Stat. §495.141.
47 Fla. Stat. §540.08.
48 Fla. Stat. §540.08(4); 17 U.S.C. §301(f). Fla. Stat. §540.08 addresses a person’s economic rights in the misappropriation of his or her name or likeness, a separate and distinct right from those conveyed by VARA.
49 Tort claims for libel and slander have a two-year statute of limitation, while privacy claims in most instances extend for four years. Fla. Stat. §95.11(4)(g); §95.11(3)(g),(f),(p).
50 Additionally, if the artist’s work contains a character, counsel should inquire as to if the character is based on a living person or being, so as to be aware of issues related to unauthorized use of likeness and being.
51 For an extensive list of factors that courts consider in determining work for hire see Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989); see also Aymes v. Bonelli, 980 F.2d 857, (1992) (listing the most relevant factors from Reid).

Peter E. Berlowe is a senior shareholder in the Miami office of Assouline & Berlowe, P.A. Mr. Berlowe’s primary practice areas are intellectual property and complex commercial litigation. He received his bachelor of science degree in engineering from North Carolina State University in 1992 and his juris doctorate from the University of Miami School of Law in 1998 where he graduated magna cum laude.
Laura J. Berlowe-Heinish is an attorney with the law firm of Entin & Della Fera, P.A., in Ft. Lauderdale. Ms. Berlowe-Heinish concentrates her practice in the areas of commercial, family, and appellate law. She received her bachelor of music in vocal performance from the University of Miami School of Music in 1988, her master of science in mental health counseling from Nova University in 1992, and her juris doctorate with honors from the University of Miami School of Law in 1997.
Peter A. Koziol is an attorney at the Broward office of Assouline & Berlowe, P.A. Mr. Koziol’s primary practice areas are intellectual property and complex commercial litigation. He received his bachelor of arts degree in computer science from the State University of New York at Albany in 1999. Prior to becoming a lawyer Mr. Koziol had over 13 years of experience in the multimedia, interactive, and publishing industries. He received his juris doctorate with honors from the Case Western Reserve University School of Law in 2006.

[Revised: 02-10-2012]