02 November 2012

VARA and Marks

'The Artist as Brand: Toward a Trademark Conception of Moral Rights' by Xiyin Tang in (2012) 122(1) Yale Law Journal comments that
 The Visual Artists Rights Act of 1990 controversially recognized artists’ “moral rights” by protecting their work from alteration or destruction and by preventing the use of an artist’s name on a work he did not create. While moral rights are criticized as antithetical to the traditional economic framework of American intellectual property law, Professors Hansmann and Santilli have suggested that moral rights can be justified economically by vindicating an artist’s economic interests. This Paper, however, argues that VARA also benefits both the purchasing and viewing public, especially in an era of factory-made, assistant-produced, industrially-fabricated “object-like” art works. Specifically, moral rights, like trademark law, can reduce search costs, ensure truthful source identification, and increase efficiency in the art market. This comparison between trademark law and moral rights shows that the interests protected by VARA are neither unique nor unprecedented in American law, and highly economic in character. Thus, this Paper hopes to reframe the dialogue surrounding moral rights, shifting it away from the classic “personhood” or “anti-commodification” arguments that have undergirded the rhetoric up to this day.
Tang concludes -
The economic incentive behind copyright lies in the belief that “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors.” Thus, it is at least arguable that if a modification of copyright does not advance “the Progress of Science,” that modification is unconstitutional.  Likewise, VARA’s legislative history is highly concerned with elucidating the important public benefits that will emerge from according moral rights to artists: 
Artists must sustain a belief in the importance of their work if they are to do their best. If there exists the real possibility that the fruits of this effort will be destroyed after a mere ten to twenty years the incentive to excel is diminished and replaced with a purely profit motivation. The Visual Artists Rights Act mitigates against this and protects our historical legacy. 
This Note, however, has argued that a “pure profit motivation” - in clever branding, advertising, and general celebrity-type antics to which the contemporary art world today is prone - is all that’s left, and the moral rights regime is the inadvertent, inaptly named legal system that protects those economic, trademark-like interests. 
Yet perhaps what is most interesting about the comparisons between moral rights law and trademark law is that both can serve a distinctly public function: rather than incentivize creators, trademark law means to protect consumers, or the buying public, by ensuring accurate source identification and reducing search costs. Further, the viewing public also benefits from accurate source identification, as they must read each work, intact and as the artist intended it, against the whole of an artist’s oeuvre. The benefit to the public, however, is necessarily predicated on the individual viewer’s encounter with the work, rather than a shared sense of community ethos. This Note has thrown into doubt whether we can expect art to serve a broader social function that consists of “common reference points or icons ... widely shared in social communication.” Whether the often obscure contemporary art objects of today will resonate the way Picasso or Rembrandt paintings did in their day is a topic for a different article. I only mean to suggest that the industrial processes through which the contingent art object is made rely on the artist to perform quality control measures, for which “signing off” on the finished product is key. In the event that a poor fabrication is made off an artist’s original plans - as was the case with the reconstruction of Carl Andre’s 1969 piece Fall, in which the bend in the steel curved less dramatically than Andre had intended - VARA would allow the artist to prevent use of his name in connection with the work. 
Lastly, the fact that trademark law has also been acknowledged to incentivize producers by facilitating investment in goodwill may serve a more traditionally socially beneficial artistic function as well. Like copyright law, thinking of art making as brand making may encourage artists to develop a unique, path-making style and garner symbolic value early on in their careers n turn propelling forward the Progress of Science via stylistic innovation. Whether meant as a serious offer or a satirical message, Hirst’s grotesque gesture of the $100 million skull has accurately captured “the essence of [our] culture and record[ed] it for future generations,” resulting in a new form of art for the contemporary era. As it turns out, “it is often through art that we are able to see truths, both beautiful and ugly.” 
Part of the reason that the myth of van Gogh’s ear and of the romantic modernist painter have persisted through the ages is because it is a story we want to believe in, and, subsequently, vicariously experience. Even as recently as the 1950s, Jackson Pollock, that art-world superstar, was still the lone wolf, chugging whiskey and splashing paint wildly about on his floor-laid canvases. We see brazen action painting like Pollock’s as risk-taking: “[W]e rely on [artists] to make up for our own timidity, on their courage to dignify our caution.” And while we may “all make our wagers,” the “artist does more. He bets his life.” 
And so it is. If the stakes of the game have changed since high modernism - if it is now “cool” to be economically successful - so, too, have the times. Warhol may have been the first artist to successfully capitalize on and foreshadow the power of modern media and consumer culture for the artist-as-businessman model, but he is just one of many postmodern artists who now look to the conditions of the market as talisman and guide, rather than creating artworks from the spontaneous, inspired depths of their own tortured souls. In some ways, this may make sense. Isn’t art on some level always reflective of the times we live in? If this is the case, I do not know how the dialogue surrounding moral rights may be justified in the future. In fact, the pendulum may just swing back again at some later date, in which art once again becomes lofty, and moral rights thus become a special subset of rights somehow justifiable of their own accord. For now, I propose that moral rights are probably no more or less than trademark law - that great engine of consumerism, beating ceaselessly on in the name of commerce, capitalism, and yes, even culture.