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"[I]t is almost obligatory... to begin by invoking the 'communications

revolution' of our time, then to pronounce upon the inadequacies of

the present copyright act ... "


Over twenty-five years ago, Professor Benjamin Kaplan alluded

to the steady stream of commentary critical of the copyright system's

ability to respond to a constant progression of technological advances. 2

That stream of criticism continues today. 3 Modern commentators,

however, whether critical or laudatory of American copyright law,

often do not explicitly acknowledge the recent changes in American

copyright that attempt to harmonize the American system with that

of other countries. The globalization of the entertainment industry

has brought an increased interest in the various legal systems used to

protect intellectual property around the world, 4 and the changing

contours of entertainment-product marketing have placed a premium

on attempts to harmonize intellectual property protection internationally.

As one commentator notes:

Suddenly, or so it appears, copyrights have been promoted from

pawns to queens on the global chessboard. Originally the province of

artists and their patrons, then growing into major industries, copyright

and [like doctrines] now preoccupy those conducting affairs of

state. . . . In short, transmedia communications are a new empire,

and all of us are its subjects. 5

* A revised version of this Note is currently under consideration in the 1994 Nathan Burkan

Memorial Competition, which is sponsored by the American Society of Composers and Publishers



2 See also Leo J. Raskind, The Continuing Process of Refining and Adapting Copyright

Principles, 14 COLuM.-VLA J.L. & ARTS 125, 128 (i9go) ("A cursory review of the critical

literature discloses a repetitive theme of dissatisfaction with the case law extension of traditional

copyright principles to new works."); cf. LYNN SPIGEL, MAKE ROOM FOR TV: TELEVISION AND

THE FAMILY IDEAL IN POSTWAR AMERICA 182 (1992) (describing America's profound ambivalence

about technological change).

3 See, e.g., Pamela Samuelson, Modifying Copyrighted Software: Adjusting Copyright Doctrine

to Accommodate a Technology, 28 JURIMETRICS J. 179, 188-92 (1988); see also Jason S.

Berman, The Music Industry and Technological Development: Are We Winning the War, in



WIPO DIGITAL SYMPOSIUM] (indicating that these commentators often speak in terms of impending


4 See 133 CONG. REC. S1o275 (daily ed. July 21, 1987) (statement of Sen. Lloyd Bentsen).

S Alan J. Hartnick, Aid for Copyright Lawyers in International Transactions, N.Y.L.J., Dec.


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'Vol. 107:1977

Digital technology is the latest technological development to challenge

the copyright system on an international scale. 6 Many consider

digital technology a unique test of the copyright system because it

affects every aspect of a creative work: its creation, its dissemination,

and its protection. Works can be expressed in digital code, copied

perfectly, and distributed to the public on an enormous scale. As a

result, digital technology has changed the parameters of creative work,

giving rise to new techniques and making possible entertainment products

that would have been unimaginable a short time ago. 7

Some scholars believe that the American copyright system as originally

conceived cannot cope with digital and other new technologies. 8

Yet the civil law system prevalent in Continental Europe, with its

emphasis on artists' rights, has had more difficulty assimilating recent

technologies, and unorthodox art forms than has the Anglo-American

common law system. 9 The United States has, in recent years, imported

a number of doctrines from the civil law system, most notably

in the form of the Visual Artists' Rights Act of 199o (VARA). 1° This

Note argues that, although the traditional Anglo-American copyright

system would be capable of embracing digital technology, VARA's

mixture of those theories with Continental-European moral rights

principles poses a challenge to this assimilation in the area of visual


Part I of this Note describes the current and (foreseeable) future

applications of digital technology in the entertainment world and discusses

the characteristics of digital technology and of visual art that

are relevant to copyright considerations. Part II explains the rationales

behind traditional American copyright, which encourages creation

for the benefit of the public, and Continental-European moral rights,

6 Digital technology is "the basic computer code that records all information . . . in a series

of zeroes and ones." Copyright World Duels With Digital Dilemma, CHi. TRIB., Apr. 1, 1993,

§ 3, at 3.

7 This Note focuses on the entertainment products that can be characterized as visual art

and specifically those that will most likely be affected by digital technology. Other entertainment

media, such as music, literature, and dance, are profoundly affected by digital technology; an

extended discussion, however, is beyond the scope of this Note. For a taste of some of the

other areas in which digital technology has an impact, see Randy S. Kravis, Comment, Does a

Song by Any Other Name Still Sound as Sweet: Digital Sampling and its Copyright Implications,

43 Am. U. L. REv. 231, passim (1993); David Nicholson, The Brave New World of

Electronic Publishing, WASH. POST, Aug. 8, 1993 (Book World) at 8, 9; James Warren, In

Transition: Technology, Shift to Part-Time Employees Threaten TV-Radio Union, CHi. TIB.,

July 25, 1993, § 5, at 2.

8 See Anne W. Branscomb, Who Owns Creativity: Property Rights in the Information Age,

TECH. REV., May/June 1988, at 38, 40.

9 See Arthur R. Miller, Copyright Protection for Computer Programs, Databases, and Computer-Generated

Works: Is Anything New Since CONTU, xo6 HARv. L. REV. 977, 1049-51


10 See Visual Artists Rights Act of 199o, Pub. L. No. xox-650, 104 Stat. 5128, 5128-33

(codified in scattered sections of 17 U.S.C.).

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which view creation as an extension of an artist's personality. Part

III discusses the Visual Artists Rights Act of 199o, which accords

certain moral rights to visual artists, and examines the scope of the

VARA rights. Part IV discusses the advantages and disadvantages of

vigorous enforcement of the VARA rights in a digital age, characterizing

these rights as a disadvantage if they impede the development

and legitimate use of digital technology. Part IV also observes that

artists might welcome VARA as a needed limitation on all-out exploitation

of digital technology. Part V concludes that, although the

moral rights contained in VARA may impede full exploitation of

digital technology and tilt the copyright balance away from its goal

of access to creative works, there may be good reasons for such a

hybrid system.


Digital technology is likely to bring about several changes, both

positive and negative, in the art world. First, by enabling the making

of perfect copies of copyrighted works for little cost, digital technology

threatens to undermine the current entertainment product distribution

systems and increase unauthorized use of copyrighted works. 1 Second,

digital technology increases the public's access to others' creations

by enabling entertainment producers to create and distribute products

of all kinds in a single (digital) format.1 2 When digital technology is

combined with satellite and other communications, forming an "information

superhighway,' consumers will be able to access their favor-


ite entertainment products whenever they please. Third, digital technology

makes it easier to manipulate existing works, which leads to

new possibilities for artists who can harness the technology, but also

increases the potential for unauthorized alteration and appropriation

of copyrighted works. When drawings, books, and other forms of

entertainment are stored in digital form, they "become more susceptible

to copying or altering, making it harder to enforce copyrights on

11 See John Burgess, Internet Creates a Computer Culture of Remote Intimacy, WASH. POST,

June 28, 1993, at Ai, A8.

12 See, e.g., id. at Ax ("[l]ncreasingly the [Internet] network is shuttling video footage, photos,

government studies, novels, dissertations, music, sounds - information of all kinds in ...

digital form .... ."); Bernard Sharratt, Please Touch the Paintings, N.Y. TIMES BOOK REV.,

Mar. 6, 1994, at 3, i8 (describing an art collection on CD-ROM). For an extreme example of

the view that digital technology is ideal for increasing accessibility to copyrighted works, see

David H. Rothman, The World at Your Fingertips, WASH. POST, Apr. 4, 1993 (Educ. Rev.),

at 5, proposing that, in order to facilitate a network containing full-text books, "[a]ll material

longer than io,ooo words, and intended for publication, would have to be in digital form before

the government would grant copyrights."

13 See House Passes High Technology Information Bill, J. PROPRIETARY RTs., Sept. 1993,

at 26.

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creative works." 1 4 The alteration of existing works raises serious

copyright issues because of a copyright owner's right to all "derivative

works."' 5 Because of the increased danger of unauthorized access,

alteration, and copying, some copyright scholars view digital technology

as a more specific challenge to copyright than previous technological

advances;' 6 other commentators persuasively argue that the difference

is one of degree, not kind. 17 In any event, digital technology

facilitates access, copying, and distribution of traditional products in

remarkable and potentially disruptive ways. 18

Digital technology has not only influenced the use and distribution

of works that are already in existence, but it has also led to new art

forms. 19 For example, digital technology blurs the distinctions between

entertainment media, enabling various parts of the entertainment

industry to collaborate on a single multimedia work. 20 Digital

technology has also led to new modes of expression, such as digital

"resurrection" of characters from classic movies for use in commercials

and other new settings. 2 '

More fundamentally, digital technology results in the "democratization"

of creation. 22 With digital technology, "every . . . consumer

is a potential author, a potential publisher, and a potential infringer

all at once." 23 With a home computer, consumers can now create

sophisticated entertainment products that only the largest corporations

previously could make. Digital technology thus has social and cultural

ramifications, as well as economic implications for smaller producers

14 Copyright World Duels With Digital Dilemma, supra note 6, at 3.

Is See infra p. 1984.

16 See, e.g., Paul Goldstein, Copyright in the New Information Age, 40 CATH. U. L. REV.

829, 829 (iggi) ("Copyright law finds itself today in the midst of an information revolution

... whose ultimate dimensions we can now perceive only dimly, if at all.").

17 See, e.g., Morton D. Goldberg & Jesse M. Feder, Copyright and Technology: The Analog,

the Digital, and the Analogy, in WIPO DIGITAL SYMPOSIUM, supra note 3, at 37, 38-40.

Is See Don Clark, Intel Lawyer Commands, S.F. CHRON., June 28, 1993, at Ei.

19 See, e.g., Sean Gannon, Canvas Brushed Aside By Artists With Keyboards, PLAIN

DEALER, Jan. 9, 1994, at 9B (discussing "electronic painting"). Of course, new technological

developments will never completely replace traditional products. See John Markoff, The Rise

and Swift Fall of Cyber Literacy, N.Y. TIMES, Mar. 13, 1994, § 4, at 1, 5; Nicholson, supra

note 7, at 9.

20 An example of a multimedia work is an "electronic book," which "contain[s] text and other

information - sounds and still and moving images - that [is] stored digitally on floppy disks

or on CD-ROM." Nicholson, supra note 7, at 8.

21 See Bruce Weber, Why Marilyn and Bogie Still Need a Lawyer, N.Y. TIMES, Mar. iI,

1994, at Bi8. In fact, litigation has begun over the use of a digitized Marilyn Monroe in the

1987 film Flashback. See Reanimating the Dead with Computers, N.Y. TIMES, Mar. 13, 1994,

§ 4, at 2. For a comprehensive look at the implications of digital resurrection, see Joseph J.

Beard, Casting Call at Forest Lawn: The Digital Resurrection of Deceased Entertainers - A

21st Century Challenge for Intellectual Property Law, 8 HIGH TECH. L.J. iox, passim (1993).


23 Ralph Oman, Reflections on Digital Technology: "The Shape of Things to Come," in WIPO

DIGITAL SYMPOSIUM, supra note 3, at 21, 22.

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who can now make quality products with affordable digital equipment.

The decentralization of creators, users, and distributors makes

the prospect of informal arrangements between those parties formidable,

and practitioners worry that present contract and licensing systems

cannot accommodate these more fluid relationships.




A. Moral Rights: An Artist-Centered Regime

The moral right, or "right of personality," is a civil law concept

based on the view that an artist's creation is an extension of his

personality. 24 These rights are separate from the proprietary, or economic,

rights of copyright, which are also available to artists in civil

law countries. Sometimes described in terms of natural law, 25 some

or all of the moral rights are inalienable in many countries. 26 Thus,

24 See Russell J. DaSilva, Droit Moral and the Amoral Copyright: A Comparison of Artists'

Rights in France and the United States, 28 BULL. COPYRIGHT Soc'v 1, 11-14 (1980); see also

Zechariah Chafee, Jr., Reflections on the Law of Copyright (1), 45 COLUM. L. REV. 503, 5o6-

07 ('945) ("[]ntellectual property is, after all, the only absolute possession in the world ....

The man who brings out of nothingness some child of his thought has rights therein which

cannot belong to any other sort of property." (quoting Thorvald Solberg, Copyright Reform, i4

NOTRE DAME LAw. 343, 358 (1939) (quoting Harvard geologist Nathanial S. Shaler (1878)))).

There are four main types of moral rights: the droit de divulgation, which allows the author

to decide whether and when to publish his work; the droit de retrait ou de repentir, which

gives the author the right to withdraw his work from publication or modify his published work;

the droit d la paternitg (paternity or attribution right), which gives the author the right to be

credited with his work; and the droit au respect de l'oeuvre (integrity right), which prevents

third persons from altering, mutilating, or destroying the author's work and even gives artists

in France the right to prevent excessive criticism of their works. See DaSilva, supra, at 3-4,

17-37. This Note uses the French system as a model because "France is considered to be in

the vanguard of protection of the artist's rights of personality." Id. at 2. However, because the

Berne Convention mandates only the paternity right and the integrity right, see infra note 50,

the remainder of this Note focuses on those two sticks in the bundle of moral rights.

Although some of the continental moral rights jurisprudence does not seem to regard artists'

rights as coinciding with the interests of the public, see, e.g., Martin A. Roeder, The Doctrine

of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 HARv. L. REv. 554,

557 (1940), moral rights do have a public-interest element, see id. at 577. In addition to

stimulating creative work, moral rights preserve a society's cultural heritage by protecting

creators against the mutilation or destruction of their works. The public interest element of the

moral rights regime, however, is different in emphasis from that of the Anglo-American system,

which is discussed at pp. 1982-84 below.

2S See, e.g., DaSilva, supra note 24, at ii.

Although it is tempting to think of moral rights as "moral" in the philosophical sense, and

although some aspects of the moral right are explained in terms of a natural right to one's

creations, the manifestations of the moral right do not necessarily derive from a Lockean or

other natural-law property notion of intellectual property, such as the one developed by Professor

Wendy Gordon. See Wendy J. Gordon, A Property Right in Self-Expression: Equality and

Individualism in the Natural Law of Intellectual Property, 102 YALE L.J. i533, 154o-83 (I993).

26 See DaSilva, supra note 24, at 16-17.

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[Vol. 107:1977

under a moral rights regime, enforcement and ownership need not go

hand in hand - the artist can sue the current owner of the work or

of the copyright for moral rights violations.

Moral rights are thought to encourage artistic creation by giving

artists the protection they desire - recognition for their works and

protection of their reputations - over and above the economic incentives

of copyright. In this way, the moral right is partially an economic

interest: the reputational interest is valuable in large part because

the artist stands to lose patronage if his art is misrepresented. 27

Nevertheless, moral rights regimes use more personal language than

do the Anglo-American courts to describe the artist, 28 and Continental-European

scholars have generally been more averse to according

rights to nontraditional (that is, computer-generated) art work. 29 The

paradigmatic civil law artist who would desire moral rights protection

is more likely to be an individual artist than a computer or a corporation

producing works for large-scale distribution.

B. Anglo-American Copyright: An Incentive-Based Regime

Modern American intellectual property law grows out of a single

clause in the Constitution that grants Congress the power "To promote

the Progress of Science and useful Arts, by securing for limited Times

to Authors and Inventors the exclusive Right to their respective Writings

and Discoveries." 30 The well-documented view of the Copyright

Clause and the Copyright Act is that they reflect an effort to strike a

utilitarian compromise between the encouragement of creative effort

and the assurance that new creations will reach the public and thus

be available for use in other endeavors. 31 In this balance, the author's

27 See Gilliam v. American Broadcasting Cos., 538 F.2d 14, 24 (2d Cir. 1976) ("[T]he

economic incentive for artistic and intellectual creation that serves as the foundation for American

copyright law . . . cannot be reconciled with the inability of artists to obtain relief for

mutilation or misrepresentation of their work to the public on which the artists are financially

dependent." (citations omitted)).

28 See, e.g., DaSilva, supra note 24, at 12 (describing one commentator's characterization of

the artist protected by moral rights as "profoundly romantic. .. , perhaps conjuring up visions

of poets in garrets, burning their lyric masterpieces for heat in the icy Parisian winter"); ef.

Roeder, supra note 24, at 557 ("When an artist creates, . . . he projects into the world part of

his personality and subjects it to the ravages of public use.").

29 The bias against corporate authors is reflected in the fact that most European countries

do not have a "work for hire" doctrine - in other words, they do not give corporations the

copyrights in their employees' creations. See Anne Moebes, Negotiating International Copyright

Protection: The United States and European Community Positions, 14 Loy. L.A. INT'L &

CoMp. L.J. 301, 320 (1992). Similarly, although the Berne Convention "seems neutral on the

possibility of nonhuman authorship," historically the civil law countries have not recognized

nonhuman authors. Miller, supra note 9, at 1o5o.

30 U.S. CONST. art. I, § 8, cl. 8.

31 See, e.g., Mazer v. Stein, 347 U.S. 201, 219 (1954). But see Chafee, supra note 24, at

5o6-07 (arguing that the primary purpose of copyright is to benefit the author).

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interests are generally considered secondary to the public interest,

sometimes even termed a "means to [an] end." 3 2 For example, the

courts at common law developed concepts such as fair use to prevent

the copyright monopoly from defeating its purpose of ensuring that

the public can make use of others' creations. 33

Some states have statutes or common law that confer moral rights

or quasi-moral rights to certain types of artists, 34 and occasionally

courts attempt to use unfair competition, 35 copyright law, 36 defamation

law, 3 7 contract law, 38 or publicity rights 3 9 -to accomplish the same

result as would European moral rights. 40 Yet American courts have

not warmly received attempts to embrace moral rights. 41 Instead, the

32 Elliott M. Abramson, How Much Copying Under Copyright Contradictions, Paradoxes,

Inconsistencies, 6i TEMP. L. REv. 133, 169 (1988); see also Feist Publications, Inc. v. Rural

Tel. Serv. Co., 499 U.S. 340, 349 (ig9) ("The primary objective of copyright is not to reward

the labor of authors, but '[to promote the Progress of Science and Useful Arts.'" (quoting U.S.

CONST. art. I, § 8, cl. 8)).

33 Congress codified fair use, which was initially a common law doctrine, in the 1976 Act.

See 17 U.S.C. § 107 (1988 & Supp. IV 1992). A a result of fair use and other such doctrines,

United States copyright "has never accorded the copyright owner complete control over all

possible uses of his work." Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,

432 (1984).

34 See, e.g., CAL. CIV. CODE §§ 980-990 (West 1988 & Supp. 1994); N.Y. ARTS & CULT.

AFF. LAW 9§ ii.oi-i6.oi (Consol. 1991). Although quasi-moral rights statutes provide some

degree of protection to artists, they may be partially or completely preempted by VARA, see 17

U.S.C. § 301 (1988 & Supp. IV 1992), and they also tend to be limited to certain types of art

work. See, e.g., MAss. GEN. LAWS ANN. ch. 231 § 85s (West Supp. 1993).

35 Lanham Act section 43(a), 15 U.S.C. § 1125(a) (1988), protects artists against misrepresentation

or "passing off" of their work. See, e.g., Allen v. National Video, Inc., 61o F. Supp.

612, 625 (S.D.N.Y. 1985). State unfair competition law also indirectly protects the attribution

right. See, e.g., Granz v. Harris, 198 F.2d 585, 588 (2d Cir. 1952).

36 The right of a copyright holder "to prepare derivative works based upon the copyrighted

work," 17 U.S.C. § 1O6(2) (1988), and "to distribute copies . . . of the copyrighted work to the

public," id. § 1o6(3), occasionally substitutes for certain moral rights. See, e.g., Gilliam v.

American Broadcasting Cos., 538 F.2d 14, 23-24 (2d Cir. 1976).

37 Because artists are often public figures only for a "limited purpose" under defamation law,

however, they may be unsuccessful if they cannot prove actual malice. See, e.g. Wojnarowicz

v. American Family Assoc., 745 F. Supp. 130, 146 (S.D.N.Y. 199o).

38 See, e.g., Gilliam, 538 F.2d at 24.

39 See, e.g., White v: Samsung Elecs. Am., 971 F.2d 1395, 1399 (9th Cir. 1992), cert. denied,

113 S. Ct. 2443 (993).

40 But see Roberta R. Kwail, Copyright and the Moral Right: Is An American Marriage

Possible, 38 VAND. L. REv. I, 23-27 (1985) (noting that, because the artist must fit his claim

into the doctrinal requirements of these causes of action, they are not exact substitutes for moral


41 See, e.g., Vargas v. Esquire, 164 F.2d 522, 526 ( 7 th Cir. 1947) (holding that Vargas had

no right to be credited when his photographs appeared in Esquire); Crimi v. Rutgers Presbyterian

Church, 89 N.Y.S.2d 813, 816-19 (Sup. Ct. 1949) (holding that an artist had no right to prevent

a church from painting over his mural); Shostakovich v. Twentieth Century-Fox Film Corp.,

80 N.Y.S.2d 575, 578-79 (Sup. Ct. 1948) (displaying hostility toward the claims of Russian

composers that their moral rights were violated when their music was played in an anti-Soviet

film and wondering whether the standard for violations of moral rights is "to be good taste,

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[Vol. 107:1977

Copyright Act grants authors a series of exclusive rights - the reproduction

right, the derivative work right, the distribution right, the

public performance right, and the display right 4 2 - that are limited

in duration and restricted by other copyright doctrines. 43

The American copyright system assumes that artists will produce

creative works only if given the incentive of a limited monopoly. Such

a system, in theory, does not distinguish between "fine art" and other

forms of creation, and it may even seem less applicable to the former

than the latter. 44 Congress has protected "maps and charts" since the

original 1790 Copyright Act, and despite some initial opposition, 45

computer programs now receive protection under the same statute as

fine art. Regardless of whether, in practice, courts treat all creations

as equal, in theory the threshold of originality is low enough and the

definition of authorship is flexible enough to include any type of work

by any type of author. 46 Thus, works wholly created in digital format

are quite easily protected under copyright. 47



In 1988, the United States finally 48 joined the century-old Berne

Convention for the Protection of Literary and Artistic Works

artistic worth, political beliefs, moral concepts or what is it to be"), aff'd, 87 N.Y.S.2d 430

(App. Div. 1949).

Indeed, not until California's 1979 Art Preservation Act, CAL. CiV. CODE § 987 (West 1982),

did a state confer moral rights on artists by statute. See DaSilva, supra note 24, at 2.

42 See 17 U.S.C. § io6 (1988).

43 See id. §§ 107-112.

44 Whether the paradigmatic artist needs the economic incentive of the copyright to create

is certainly open to debate. Cf. Stephen Breyer, The Uneasy Case for Copyright: A Study of

Copyright in Books, Photocopies, and Computer Programs, 84 HARV. L. REv. 281, 282 (1970)

("Authors in ancient times, as well as monks and scholars in the middle ages, wrote and were

paid for their writings without copyright protection.").

45 See Miller, supra note 9, at 1053 n.358 (discussing novelist John Hersey's stance during

the CONTU hearings, during which Hersey opposed copyright protection for computer programs).

46 See, e.g., id. at io59-66. For a work to be copyrightable, it must be an "original

work[ ] of authorship fixed in any tangible medium of expression." 17 U.S.C. § 102 (1988).

Originality for purposes of copyright means little more than originating with the author; thus,

copyright does not contain an artistic-merit test, and "Congress has been hostile to contentbased

restrictions on copyrightability." Mitchell Bros. Film Group v. Cinema Adult Theater,

604 F.2d 852, 855 (Sth Cir. 1979), cert. denied, 445 U.S. 917 (1980). Instead, any tangible form

of expression that originates with an author will be protected. See i PAUL GOLDSTEIN, COPY-

RIGHT § 2.2, at 62-73 (1989). However, a relatively recent case, in which the Supreme Court

held that assembling the white pages of a phone book "does not possess the minimal creative

spark required by the Copyright Act and the Constitution," Feist Publications, Inc. v. Rural

Tel. Serv. Co., iii S. Ct. 1282, 1296-97 (199i), casts doubt on whether the originality threshold

is as low as was previously assumed.

47 See Miller, supra note 9, at 1042-72.

48 As early as 1945, and perhaps earlier, "[a]gitation to revise our copyright law so as to

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(Berne). 49 The approximately eighty members of Berne are required

to provide a certain level of substantive protection - including certain

types of moral rights - to literary, artistic, scientific, and other creative

works. 50 Not surprisingly, the requirement that members recognize

the moral rights of attribution and integrity significantly slowed

the Congressional hearings leading to the decision to join Berne. 5 '

Ultimately, Congress took a minimalist approach to compliance and

concluded that existing indirect federal and state protection is adequate

to protect moral rights in all but visual art. 5 2

To achieve compliance in the area of visual art, Congress amended

the Copyright Act by passing VARA, which applies to the original

and signed, consecutively numbered limited editions of 200 or fewer

copies of the following copyrightable works: paintings, drawings,

prints, sculptures, and photographs "created for exhibition purposes."

53 VARA does not protect such creations if they appear within

another visual art work. 5 4 Moreover, works for hire are excluded

from VARA's protections. 55 In order to "avoid[ ] any tension between

the public's ability to exploit the work under copyright law and the

rights granted under [VARA]," 56 Congress also made fair use an explicit

limitation on VARA rights. 5 7 Finally, although the VARA rights

cannot be assigned or transferred, they can be waived under certain


One area of great uncertainty involving VARA is whose rights will

take priority if an artist transfers the copyright in a painting or other

make the United States eligible for membership" was already "constant and powerful." Roeder,

supra note 24, at 557.

49 See Berne Convention Implementation Act of 1988, Pub. L. No. lOO-568, § 2, 102 Stat.

2853 (Oct. 31, 1988). For the legislative history of the United States's decision to join the Berne

Convention, see H.R. Rep. No. 6og, iooth Cong., 2d Sess. (1988); S. Rep. No. 352, iooth

Cong., 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 3706.

5o The Berne Convention provides that:

Independently of the author's economic rights, and even after the transfer of said rights,

the author shall have the right to claim authorship of the work and to object to any

distortion, mutilation or other modification of, or other derogatory action in relation to,

the said work, which would be prejudicial to his honour or reputation.

Berne Convention art. 6 bis, reprinted in 4 DAVID NIMMER & MELVILLE B. NIMMER, NIMMER

ON COPYRIGHT 27-6 app. (1993).

51 See H.R. Rep. No. 6o9, iooth Cong., 2d Sess. (x988); S. Rep. No. 352, iooth Cong., 2d

Sess. (1988), reprinted in i988 U.S.C.C.A.N. 3706.

52 See Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention,

io COLUM.-VLA J.L. & ARTS 513, 547-57 (1986).

53 VARA § 602, 17 U.S.C. § 1oI (Supp. IV 1992).

S4 See 17 U.S.C. § io6A(c)(3) (Supp. IV 1992).

55 See VARA § 602, 17 U.S.C. § 1o (Supp. IV 1992).

56 H.R. Rep. No. 514, ioist Cong., 2d Sess. i4 (199o), reprinted in 199o U.S.C.C.A.N.

6915, 6924.

57 See 17 U.S.C. § io6A(a).

59 See id. § xo6A(e).

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IVol. 107:1977

visual art work to another party who then exercises his derivativework

right in a way that the artist feels violates his integrity right. 5 9

In such a situation, it is likely that the owner of the copyright will

prevail; as Professors L. Ray Patterson and Stanley Lindberg note,

"property is a favored child of the common law, personal rights a

stepchild. When there is a conflict between the two, the property

rights almost invariably prevail." 60 Thus, even formal moral rights

protection has built-in limitations in the United States, although

VARA does purport to protect the rights of visual artists as required

by the Berne Convention.

VARA gives the visual artist two types of integrity rights. First,

the artist has the right

to prevent any intentional distortion, mutilation, or other modification

of [his or her] work which would be prejudicial to his or her honor

or reputation, and any intentional distortion, mutilation, or modification

of that work is a violation of that right. 61

The legislative history of VARA indicates that, in construing whether

a particular action is harmful to an artist's honor or reputation, the

focus should be "on the artistic or professional honor or reputation of

the individual as embodied in the work that is protected," and not

the more general character test used in defamation cases. 62 Second,

the visual artist may "prevent ... any intentional or grossly negligent

destruction" of works of "recognized stature." 63

Explicit and implicit limitations on the VARA integrity right render

it unequal to its civil law origins regardless of the effect of digital

technology. 64 First, the visual artist whose work is not of recognized

stature cannot prevent the distortion of his work unless the distortion

is intentional. This limitation creates a dichotomy between wellknown

and other works that is not present in the civil law system.

Second, prejudice to the artist's honor or reputation is unlikely to be

presumed by American courts and is difficult to prove; 65 by contrast,

many of the European countries presume prejudice if any modification



USERS' RIGHTS 166 (iggi).

61 17 U.S.C. § io6A(a)(3)(A).

62 See H.R. Rep. No. 101-514, zoist Cong., 2d Sess. I5 (iggo), reprinted in 1990

U.S.C.C.A.N. 6915, 6925.

63 17 U.S.C. § io6A(a)(3)(B).

64 For observations specific to digital technology, see below at pp. r987-9I.

65 For example, American courts have not been particularly sensitive to directors' or others'

claims that their works have been impermissibly altered by editing for commercials, reduction

in size for television, or any number of other digital alterations. See U.S. COPYRIGHT OFFICE,



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is involved. 66 Third, section 113(d) of the Act limits the rights of an

artist whose visual art work is removed from a building. Such an

artist has a cause of action only if the work can be removed from the

building without harming the work or if the artist did not consent to

its installation prior to VARA's effective date.67 Finally, because

reproductions are exempted from VARA's coverage, the visual artist

has no cause of action against "discolored or badly cropped

reproductions" 68 unless they violate the derivative work right or another

informal type of protection. 69

VARA also gives visual artists two attribution rights. First, the

artist has the right to "claim authorship" of his work of visual art and

"to prevent the use of his or her name as the author of any work of

visual art which he or she did not create." 70 Second, the artist can

"prevent the use of his or her name as the author of the work of

visual art in the event of a distortion, mutilation, or other modification

of the work which would be prejudicial to his or her honor or reputation."

71 These rights are substantially similar to the traditional

attribution right in the civil law countries, although they are subject

to fair use and other limitations. 72



With the passage of VARA, Congress expressed the general view

that "[a]rtists' rights are consistent with the purpose behind the copyright

laws and the Constitutional provision they implement." 73 Yet

the two-tiered system that Congress created, under which explicit

moral rights are restricted to creators of limited-edition visual art

works 74 and all others must rely on state and informal federal protection,

is inconsistent with the traditional interpretation of the Copyright

Clause, which does not contemplate distinctions based on artistic merit

or artistic form. Digital technology forces us to examine whether it

will be possible to use VARA to filter out the illegitimate uses of

digital technology in order to protect traditional artists who may fall

victim to unauthorized digital uses of their works, without at the same

66 See infra p. I989.

67 See x7 U.S.C. § 113(d).

68 GORMAN, supra note 59, at 87-88.

69 See supra pp. 1983-84.

70 17 U.S.C. § io6A(a)(i).

71 Id. § io6A(a)(2).

72 See infra pp. 1988-91.

73 H. Rep. No. 5'4, ioist Cong., 2d Sess. 5 (iggo), reprinted in 199o U.S.C.C.A.N. 6915,


74 See 17 U.S.C. § io6A (Supp. IV 1992).

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(VOL. IoTV977

time discouraging the aspects of digital technology that fulfill the

mandate of the Copyright Clause.

A. Encouraging the Legitimate Use of Digital Technology

Because the most common art forms that use digital technology

are not covered by VARA, moral rights cannot affirmatively encourage

artists to create digital works. 75 Most digital works will not meet the

definition of visual art in VARA because they will not be signed

limited editions. As indicated above, works made for hire and the

most common mass-marketed art forms, such as films, are expressly

excluded from VARA's definition of visual art. More important than

active encouragement, however, is the question whether the moral

rights that are available to visual artists, in combination with the rest

of the Copyright Act, will impede full legitimate exploitation of digital

technology. This inquiry is a critical one because in many ways digital

technology itself promises to fulfill the goals of access and dissemination.

Although many predicted that incorporating moral rights into the

American system would disrupt the balance between encouraging creativity

and ensuring access to new creations, digital technology itself

makes it desirable to adjust that balance. Certain moral rights do,

however, have the potential to impede the access and development

that is the constitutionally mandated purpose of copyright. For example,

international commentators recognize that the author's moral

right to withdraw his work, which is not mandated by the Berne

Convention, may need to be restricted in a digital age. 76

The VARA rights available to traditional artists may impede the

development of digital art work. Because VARA is limited to certain

types of entertainment products, it creates "artificial distinctions" between

traditional and nontraditional works that may not be "operational

in facing the growing diversity of technological possibilities." 77

Digitally based works will most likely suffer under such a system.

Whereas the copyright system has a low originality threshold, VARA

is applicable only if an artist's reputation or honor is harmed, which

generally requires some mutilation of a "work of recognized stature." 78

75 For example, multimedia works are unlikely to be affected by VARA, except perhaps in

the area of overseas distribution. See William A. Tanenbaum & William K. Wells, Jr., Multimedia

Works Require Broad Protection, NAT'L L.J., Nov. I, 1993, at Six, S12.

76 See, e.g., Ashok Bhojwani, Digital Recording Technologies and Intellectual Property:

Promises and Pitfalls for Development, in WIPO DIGITAL SYMPOSIUM, supra note 3, at 79, 85.

77 Andr6 Lange, The Impact of Digital Technologies on the Author's Right and Neighboring

Rights, in WIPO DIGITAL SYMPOsIuM, supra note 3, at 227, 234.

78 17 U.S.C. § io6A(a)(3)(B) (Supp. IV 1992). This is not, however, intended to be a hard

and fast rule. Although the two concepts are related, "honor or reputation" is distinguished

from "works of recognized stature" in the legislative history of VARA. See H. Rep. No. 514,

ioist Cong., 2d Sess. xS, reprinted in 19go U.S.C.C.A.N. 6915, 6925-26.

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Because most digital works appropriate existing materials and manipulate

them as part of the artistic statement, unauthorized digital works

will often violate the rights of an artist who has created a work of

"recognized stature." A system in which the creative use of existing

materials is a common target for successful litigation, is unlikely to

encourage new digitally based works. 7 9

As compared with VARA, however, a true moral rights regime

would be even more inflexible when faced with technological manipulation

of works, and international distributors of entertainment products

should be aware of the possibility of such treatment in other

countries. In one Italian case, for example, filmmaker Pietro Germi's

son successfully sued a television company for interrupting Germi's

movie "Serafino" for commercial breaks. 80 The court held that "even

a single commercial break in a film constitutes an alteration of the


work's integrity and therefore violates the director's moral rights."'

In addition to setting "a precedent that could have longrange effects

• . . in every country that adheres to the Berne Convention, '8 2 this

ruling demonstrates that traditional moral rights give a significant

advantage to the party who wishes to prevent digital alteration of a


B. Discouraging the Illegitimate Use of Digital Technology

Because widespread infringement of copyrighted material discourages

creation of all kinds, the copyright regime should seek to thwart

digital technology's facilitation of unauthorized manipulation and reproduction

of copyrighted works. For example, the declining profitability

of traditional media in the face of easy copying and easy access

could chill creativity as traditional copyright's protection against unauthorized

use becomes more and more ineffectual. 8 3 Yet VARA

79 A more fundamental problem is identifying who should get the moral right in a digital

work. Copyright has not viewed a publisher or end user as an author, although with digital

technology each performs many creative functions. See Jon A. Baumgarten, Digital Use of

Scientific and Technical Information, in WIPO DIGITAL SYMPOSIUM, supra note 3, at 63, 64.

Fearing that the integrity right would impair the full exploitation of digital technology by

preventing alteration and limiting the use of preexisting works as building blocks for other

works, broadcasters and others are vehemently opposed to moral rights. See Cathy Seidner &

Kimon P. Timon, Preserving Intangible Rights in Films Shown on Television, N.Y.L.J., May

25, 199o, at 5. However, VARA exempts such uses.

80 See Jennifer Clark, Italo Court: TV Ad Breaks Violate Moral Rights of Pic's Helmer,

VARIETY, Oct. 18-24, 1989, at 6, 6.

81 Id. (quoting the court).

82 Id.

3 See supra pp. 1979-8o. One British lawyer warns that "emerging multimedia technology

which allows seamless and virtually indetectable copying - 'makes a nonsense of moral

rights.'" Victoria Slind-Flor, International Bar Group Meets but Finding a Consensus Proves

Elusive, NAT'L L.J., Sept. 20, 1993, at 12 (quoting Jack Black of London's Radliffe's & Co.).

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[Vol. 107:1977

appears ill-equipped to deal with the challenges of protecting copyrighted

material in the age of digital technology. In particular, three

qualifications built into VARA are likely to pose problems for artists

seeking to protect their works from digital alteration: the narrow

exclusion of films and other audiovisual works from coverage, 8 4 the

exclusion of works of visual art that are embodied in other works, 8 5

and the applicability of the fair use provision. 86

First, although films and other audiovisual works are among the

most common victims of unauthorized digital alteration, VARA explicitly

excludes them from the definition of a protected work of visual

art. 8 7 The legislative history of VARA suggests that Congress drafted

this exclusion based on perceived differences, both factual and legal,

in the creation and dissemination of visual arts and audiovisual

works.88 For example, the House Report states that, unlike visual

arts, "audiovisual works are generally works-made-for-hire;" thus, to

grant moral rights to "those who participate in a collaborative effort,

such as an audiovisual work," Congress noted, "might conflict with

the distribution and marketing of these works." 8 9 The report also

noted that, unlike works that can potentially be produced in unlimited

quantities, original works of visual art are irreplaceable. 90 By focusing

too heavily on current marketing practices and on whether a work

could be replaced if it were destroyed, Congress overlooked the critical

analysis of the interests of the artist and whether an artist is more

likely to have his work incorporated into such a "collaboration" with

or without his permission. VARA's exclusion of audiovisual work

ignores the fact that colorization and other alteration of films can be

as much, if not more, of an affront to an artist-director's reputation

as any alteration of a painting. 91 A significant segment of the enter-

84 See 17 U.S.C. § 1o (Supp. IV 1992).

85 See id. § ioi.

86 See id. §§ io6A(a), 107.

87 See id. § 1o.

88 See H. Rep. No. 514, ioist Cong., 2d Sess. 9 (iggo), reprinted in 199o U.S.C.C.A.N.

6915, 6919.

89 Id.

90 See id.

91 See, e.g., Report of the Register of Copyrights, United States Copyright Office, Washington,

D.C. (Mar. x989), reprinted in Report, Technological Alterations to Motion Pictures and

Other Audiovisual Works: Implications for Creators, Copyright Owners, and Consumers, ro Loy.

ENT. L.J. i, io3 (iggo) [hereinafter Register's Report on Technological Alteration]; see also

Seidner & Timon, supra note 79, at 6 ("The only time I lose my integrity as a filmmaker...

is when my films go on TV.. . ." (quoting Steven Spielberg)). Today, the basic agreement of

the Directors Guild of America requires that the director be notified and consulted about such

editing, but that the director does not get the "final cut." Certain recent bills reflect the directors'

concerns. See, e.g., 139 CONG. REC. S8351, S8353-54 (daily ed. June 30, 1993) (statement of

Sen. Simpson) (introducing the Film Disclosure Act of 1993, S. 1181, I03d Cong., ist Sess.,

which would amend Lanham Act § 43(a) to require that materially altered films include labels

disclosing the nature of the alteration and any objections on the part of the artistic authors).

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tainment industry is still lobbying for legislative responses to its greatest

concerns about digital technology.

Second, VARA does not protect visual art that appears in audiovisual

works or other creations that are not protected by VARA. 92 In

other words, VARA does not protect visual artists from the most

common digital uses of their works. 93 Yet the legislative history of

VARA states that "a new and independent work created from snippets

of [excluded] materials, such as a collage, is of course not excluded"

from coverage. 94 Thus, certain types of appropriation art might gain

incidental moral rights protection if they are found to be independent

works of recognized stature that fit one of the categories of protected

art. But the statute does not contemplate that the reverse could be

true; covered works that are incorporated into new works are not

given a cause of action other than intentional or negligent mutilation.

Digital applications that would not require mutilation or destruction

of an art work - scanning of a painting for inclusion in a multimedia

work, for example - can seemingly take place without violating

VARA. 95 The availability of moral rights to traditional artists in such

situations might have made these artists more likely to agree to the

use of their works in digital creations. Instead, the VARA exemptions

provide incidental protection only to appropriationists while simultaneously

depriving visual artists of a cause of action against them.

Third, subjecting the VARA rights to the fair use provision of the

Copyright Act places American visual artists at a distinct disadvantage

as compared with artists in countries that do not recognize a fair use

defense to violations of moral rights. 96 If appropriation art is considered

a form of critical commentary, 97 fair use will seriously undermine

artists' potential to challenge unauthorized digital works. Thus, although

traditional copyright doctrines usually give artists sufficient

incentives to create, if creators feel aggrieved by digital alteration that

is not explicitly forbidden by our copyright law, a myopic focus on

traditional Anglo-American rights in creative products may compromise

the incentive to create. 98

92 See H. Rep. No. 514, zoist Cong., 2d Sess. i (199o), reprinted in 199o U.S.C.C.A.N.

6915, 6927.

93 Significantly, however, the implications of digital technology are not explicitly addressed

in the legislative history of VARA.

94 H. Rep. No. 514, ioist Cong., 2d Sess. 14, reprinted in 19go U.S.C.C.A.N. 6915, 6924.

9S But such activities might violate the derivative work right or the distribution right. See

17 U.S.C. § io6 (1988 & Supp. IV 1992).

96 See Moebes, supra note 29, at 320.

97 Cf. Campbell v. Acuff-Rose Music, Inc., 114 S. Ct. 1164, 1173 (1994) (stating that a rap

song's parody "reasonably could be perceived as commenting on the original or criticizing it, to

some degree").

9 See, e.g., H. Rep. No. 514, ioist Cong., 2d Sess. 6 (199o), reprinted in 199o

U.S.C.C.A.N. 6915, 6916.

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[3/oi. 107:1977

C. Policy Advantages to the VARA Rights

Although VARA has the potential to stifle digital technology in a

manner contrary to the constitutional mandate, it is also defensible

on the basis of various important policy objectives. Just as fair use

is justified as a way to ensure that the copyright monopoly does not

extend too far, so too might moral rights, which also limit the copyright

monopoly, be a justified impediment to one form of creation in

order to avoid stifling other art forms. 99 In addition, federal moral

rights could help to unify the various state regimes that currently

provide only nebulous moral rights protection.100 Such unification

would be beneficial because "patchwork measures rarely approximate

the degree of protection afforded by a cohesive legal theory." 10 1 Likewise,

explicit recognition of moral rights could increase business certainty

in an age of global entertainment markets. When entertainment

products are created with a view toward international markets, it is

sensible to treat international consistency in the protection of these

products as an independently valuable objective. 102

Digital technology does, however, make it exceedingly difficult to police the unauthorized

use of a copyrighted work. See Lange, supra note 77, at 230-31. Because end users can alter

digitized works almost effortlessly, the transaction costs would be prohibitive for an artist who

wanted to approve or disapprove even the most trivial "transformative" use of his art work.

Cf. Pierre N. Leval, Toward a Fair Use Standard, 103 HARv. L. REv. ixos, Xiii (iggo)

(proposing that fair use turn on whether a given use is "transformative," defined as a use that

is "productive" and employs the original work "in a different manner and for a different purpose

from the original").

99 Indeed, Professors Patterson and Lindberg argue that:

The vice of the copyright monopoly unlimited by the moral-rights doctrine (and barely

limited by the fair-use doctrine) is that copyright ceases to be merely a monopoly for

protection against competitors; it becomes a monopoly also against both authors and

users. Thus, authors are severely restricted, not only in the right to protect their own

products but also in the use they may make of the works of other authors to create new

works . . . . And the monopoly against users inevitably inhibits the fulfillment of the

constitutional purpose of copyright, the promotion of learning.

PATTERSON & LINDBERG, supra note 6o, at 172.

100 See supra p. 1983.

101 Kwall, supra note 40, at 18; see also Roeder, supra note 24, at 575 ("The application of

so many different doctrines to a subject matter which is intrinsically homogeneous produces

confusion; choice of theory becomes dependent on a fortuitous combination of factors, rather

than on the basic needs of the problem." (footnote omitted)).

102 See The Visual Artists Rights Act of 1989, Hearings on H.R. 2690 Before the Subcomm.

on Courts, Intellectual Property, and the Administration of Justice of the House Comm. on the

Judiciary, iolst Cong., ist Sess. 37 (1989) (statement of Ralph Oman, Register of Copyrights).

Former Congressman Robert Kastenmeier notes that

popular culture and information have become export commodities of immense economic

value. That value is badly eroded by low international copyright standards. Berne

standards, by contrast, are appropriately high and are widely accepted by the international

copyright community. By lending our prestige and power to those standards, we

have improved domestic copyright law and bolstered our own credibility in the international

legal system.

Robert W. Kastenmeier, The zg89 -Horace S. Manges Lecture - Copyright in an Era of

Technological Change: A Political Perspective, 14 CoLum.-VLA J.L. & ARTS 1, 12 (x989),

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The advantages of moral rights in a digital age are not limited to

artists or other creators. Explicit recognition of moral rights might

fill the gap left by the new informality of our copyright regime 0 3 in

ways that would benefit the public interest.' 0 4 For example, the filmpreservation

movement argues that great fims should be preserved in

their original form in order to preserve our cultural heritage.' 0 5 Indeed,

VARA's limitation of its negligence cause of action to works of

"recognized stature"' 0 6 reflects a concern for the public's interest rather

than exclusively that of the artist.' 0 7


Part of the difficulty in deciding whether moral rights are beneficial

in a digital age is that the technological trends seem to pull in opposing

directions. On the one hand, advances in technology that make it

possible to alter works in ways that were never before imagined

counsel for giving artists more control over their creations. On the

other hand, technology puts pressure on artist-centered regimes, because

technologically assisted works do not fit the paradigmatic view

of art. Moreover, the inter-industry conflicts generated by digital

technology make it unclear what result will "promote the progress of

science and the useful arts." Yet to the extent that moral rights are

limited to "traditional" creators, a significant number of new works

remain protected by the traditional copyright doctrines.

Thus, although VARA may impede full exploitation of digital

technology, it has the advantage of harmonizing international intellec-

Recognition of moral rights in the United States imposes little additional cost when entertainment

products are vulnerable to attack on moral rights grounds in other countries that are major

markets for these products. See Tanenbaum & Wells, supra note 75, at S12.

103 Membership in Berne required the United States to eliminate or modify many of the

formal requirements for a valid copyright - notice, deposit, and registration - that had

characterized the igog Copyright Act. See Jane C. Ginsburg & John M. Kernochan, One

Hundred and Two Years Later: The U.S. Joins the Berne Convention, 13 CoLuM.-VLA J.L. &

ARTS I, 12-16 (1988).

104 Cf. David Streitfeld, Copyright Controversy: Artists, Library at Odds Over Registration,

WASH. POST, Mar. 5, 1993, at C2 ("[M]any important unpublished works have come to the

[L]ibrary [of Congress] under copyright deposit, including a first edition of a Dvorak opera and

choreography by Agnes de Mille." (referring to the testimony of Librarian of Congress James

Billington before the House Subcomm. on Patents, Copyrights and Trademarks, Mar. 4, 1993)).

10S Any attempt to characterize such rights in terms of the public interest, though probably

the easiest way to assimilate them into the American system, will have its own problems: moral

rights justified in terms of the public interest would be limited by the Takings Clause, with the

public interest in art preservation weighed against the burden on the individual who seeks to

use his property in a way contrary to that interest. See Craig A. Wagner, Note, Motion Picture

Colorization, Authenticity, and the Elusive Moral Right, 64 N.Y.U. L. REv. 628, 722-24 (1989).

106 17 U.S.C. § io6A(3)(B) (Supp. IV 1992).

107 Indeed, this goal is reflected in the legislative history of VARA. See H. Rep. No. 514,

ioist Cong., 2d Sess. 6 (iggo), reprinted in i99o U.S.C.C.A.N. 6915, 696 (statement of Rep.

Edward J. Markey).

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1994 HARVARD LAW REVIEW [Vol. 107:1977

tual property law at a time when international transactions involving

entertainment products are commonplace. Although moving toward

a system that will impede technological advances may seem unwise,

the VARA rights will ultimately be consonant with the rationale of

intellectual property protection if they encourage creation in a digital


HeinOnline -- 107 Harv. L. Rev. 1994 1993-1994

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