Rights And Remedies Provided Under The Berne Convention: Implementation Act And The Visual Artists Rights Act
Under the Berne Convention Implementation Act of 1988, the United States fulfilled its
obligation as a recent signatory to the Berne Convention for the Protection of Literary
and Artistic Works, first signed in Switzerland in 1886. Under this Convention, new
"moral" rights are provided to the author of the work of art. These
"moral" rights (or "rights of attribution and integrity") were
further implemented through the Visual Artists Rights Act of 1990. In the words of the
Berne Convention, these new "moral" rights protect against "mutilation
or other derogatory action in relation to the work that would prejudice the author's honor
or reputation" during his or her lifetime.
Rights of Attribution and Integrity:
As a result of the Visual Artists Rights Act, 106A has recently been added to the
Copyright Act, and includes valuable new rights for the author of a work of visual art.
Under this section, the author, and no one else, has the right:
- to claim authorship of that work, and to prevent the use of his name as the author of
any work of visual art which he did not create;
- to prevent the use of his 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 honor or reputation; and
- to prevent any intentional distortion, mutilation, or other modification of that work
which would be prejudicial to his honor or reputation and to prevent any destruction of a
work of recognized stature.
A significant exception to the right in "(3)" above applies to a work which
is permanently fixed to a building. This exception permits the owner of the building to
destroy the building and any permanently attached works of art which are part of the
building, without having to risk liability to the authors of the attached works.
These rights may be waived, but only by written instrument which specifically
identifies the work for which the right of attribution and integrity is being waived. In
the case of a joint work, a waiver by one author waives the right of attribution and
integrity for all authors.