Another case, Wojnarowicz v. American Family Association, involved a group that protested an artist’s work by reproducing 14 fragments in a pamphlet. The U.S. District Court for the Southern District of New York found for the artist under the New York Artists' Authorship Rights Act, but dismissed claims under the Copyright and Lanham Acts.
A few decisions have been rendered since enactment of VARA, although none has yet focused on waiver. M ost notable of recent cases is Carter v. H
elmsley-Spear, Inc. A large art installation by three sculptors was commissioned for a Queens warehouse, but the landlord, demanding the artists vacate the premises, indicated plans to remove the work. T he artists sued in the district Court under VARA and prevailed. T he trial court determined that the work was covered by VARA; it was a single work of art, was not a work of applied art, and was not a work-for-hire.
T he fact that the artists retained their copyright tipped the balance in favor of their independent contractor, rather than employee, status. T he district court found that intentional alteration of the installation would injure the artists' reputation. S uggesting a two-tired approach, that court found the work qualified as one of «recognized stature» in that it has «stature,» i.e., is viewed as meritorious, and this stature is «recognized» by art experts, the art community, or some cross-section of society. Rejecting various constitutional attacks on VARA, the district court granted an injunction but said VARA conveyed no right to complete a work and did not justify damages in this case.
On appeal, the Second Circuit analyzed the facts of employment and concluded that the sculpture in question was a work made for hire and therefor was outside the scope of VARA’s protection. It reversed the lower court’s award of injunctive relief and nullified the only case that had awarded relief to an artist under VARA.
The terms «gallery,» «dealer» and «agent» are often used interchangeably in art contracts, but galleries, in their function as exclusive artists representatives, are more likely than dealers and agents to be involved in waiver of moral rights.
Visual Artists and Galleries Association Executive Director Robert Panzer stated that waivers will most often be initiated by purchasers, who may insist that a sale include a written contract waiving moral rights.
The contracts submitted included a variety of waiver provisions. A Campbell’s Soup Art Contest demanded of entrants that they waive all moral rights as well as copyright. A Seattle Transit Project contract permitted the metro system to remove a work without the artist’s approval if a designated arts committee so recommends and if the artist has the right of first refusal to purchase the work. A Massachusetts Bay Transportation Authority contract provided that state moral rights in a work that cannot be removed without substantial damage are «automatically waived» unless they are expressly reserved in a recorded instrument.
Conclusion
M odern moral theories, the most representative of which are utilitarianism and Kantian moral theory, do not concern themselves directly with virtue and character. I nstead, they are primarily concerned to describe morally correct action. T heories of morally correct action generally aspire to develop criteria by which to categorize actions as morally obligatory, morally permissible, or morally impermissible. S
ome theories of morally correct action also introduce the category of the supererogatory: an action is supererogatory if and only if it is morally praiseworthy, but not obligatory. T he two theories of primary concern to Williams are utilitarianism and Kantian moral theory, and both of these are usually interpreted as eschewing the category of the supererogatory. Williams maintains that both utilitarianism and Kantian moral theory are deeply implausible because of their integrity undermining effects.
When we grant integrity to a person we need not approve of his or her principles or commitments, but we must at least recognize them as ones a reasonable person might take to be of great importance and ones that a reasonable person might be tempted to sacrifice to some lesser yet still recognizable goods. It may not be possible to spell out these conditions without circularity, but that this is what underlies our judgments of integrity seems clear enough. Integrity is a personal virtue granted with social strings attached. By definition, it precludes βexpediency, artificiality, or shallowness of any kind.' The pleasure seeker is guilty of shallowness, the approval seeker of artificiality, and the profit seeker of expedience of the worst sort.
The self-integration and identity views of integrity see it as primarily a personal virtue: a quality defined by a person’s care of the self. The social character of integrity is a matter of a person’s proper regard for their own best judgement. Persons of integrity do not just act consistently with their endorsements, they stand for something: they stand up for their best judgment within a community of people trying to discover what in life is worth doing.
Nations that provide their authors and artists with protection in the nature of moral rights protection do so using various approaches. Some use statutory law to balance the interests of artists and their creations with the interests of copyright owners and other users of works. The statutes may be categorized as laws of copyright, design rights, passing-off, unfair competition, tort, or contract. In other countries, the personal rights of attribution, paternity, and integrity have been defined and shaped by the courts.
Nations that are members of the Berne Convention for the Protection of Literary and Artistic Works are required to meet a minimum level of protection, as set forth in the Berne Convention’s Article 6bis. The multilateral treaty does not address waiver of moral rights; waiver is neither sanctioned nor prohibited, and individual member nations may implement the Berne Convention in their own ways.
However, since the inception of the Berne Convention, member nations have had intense interest in supporting not only authors' rights to exploit their works for profit, but also in preserving authors' personal relationships with their works. The Copyright Office traces the history of Article 6b in Chapter II of this Report, examining its evolution to its present day form.
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