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1994] VISUAL ARTISTS' RIGHTS 1979 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. I. DIGITAL TECHNOLOGY AND THE CHANGING FACE OF ART 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- 3 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. HeinOnline -- 107 Harv. L. Rev. 1979 1993-1994
i98o HARVARD LAW REVIEW [Vol. Io7:I977 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). 22 See BRENDA LAUREL, COMPUTERS AS THEATRE 213 (1993). 23 Ralph Oman, Reflections on Digital Technology: "The Shape of Things to Come," in WIPO DIGITAL SYMPOSIUM, supra note 3, at 21, 22. HeinOnline -- 107 Harv. L. Rev. 1980 1993-1994
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