Abstract

The three chapters of this dissertation work together and build on each other to make an argument for stronger uniform artists’ moral rights protections in the United States legal system. The current system provides inconsistent protection in a narrow subset of instances and fails to adequately protect moral rights. Many artists lack protections either due to the type of work they produce or due to lack of stature and bargaining power. I argue that by adopting an intimacy-based motivation for protecting moral rights the US legal system could develop laws that sufficiently protect moral rights more broadly and more fairly. This system would guarantee a minimum level of protection for all artists who satisfy the requirements of the intimacy account and provide artists in the United States the same level of protections enjoyed by artists in other countries. This work fills current gaps in the philosophical and legal literature, as well as offering new insights into areas that have been previously discussed. There are two main philosophers currently working in and around the area of artists’ moral rights and copyright law: K.E. Gover and Darren Hudson Hick. Gover focuses on moral rights while not suggesting how these rights should be legally protected and Hick discusses legal protections without discussing moral rights. My work engages with both and provides a bridge, both discussing moral rights and legal application. In Chapter One, I offer a novel justification for the protection of artists’ moral rights based explicitly in the intimate relationship that connects artists to their work. The intimacy account of artists’ moral right rights builds from two more general intimacy accounts. Charles Fried’s intimacy account justifies protection for acts of sharing information which was previously private and which a person has no duty to share. Julie Inness’s intimacy account justifies protection through appeal to the emotional context that accompanies the relationship between an agent and the act/item/information. This emotional context involves having a loving, caring, or valuing relationship. The intimacy account of artists’ moral rights draws from both to create a justification for protecting moral rights based on the idea that artist reveal information and ideas that could have been kept private and do so with the proper accompanying emotional context. In Chapter Two, I identify the type and scope of artists’ moral rights protected by the intimacy account. I apply the intimacy account developed in Chapter One to the traditional rights covered under the umbrella of artists’ moral rights: the right of disclosure, the right of attribution, the right of withdrawal, and the right of integrity. I provide examples and arguments to demonstrate the connections between intimacy and all four traditional moral rights. The Chapter concludes with an extended case study of destruction of graffiti artworks at the well-known site 5 Pointz and a brief discussion of a case involving the posthumous retitling of a work by artist Emily Carr. In Chapter Three, I explore the current state of moral rights protections in the US legal context, offer a critique of the current state of these rights, and offer an initial proposal for what I believe is an improved approach to protecting artists’ moral rights. The chapter serves as an initial scholarly response to 2019 Copyright Office Report on the state of moral rights protections. The chapter moves through the current patchwork of protections for moral rights. In doing so, I identify some central themes: for instance, the fact that laws tend to extend to moral rights protections unintentionally and as a result fail to offer protection when tensions occur between moral rights and the stated intent of the law. I conclude by presenting a guide towards stronger moral rights protections. The explicit adoption of a federal statute aimed at protecting artists’ moral rights, with acknowledgement of the intimacy-based justifications for these protections, could guide courts towards more accurately enforcing the protection of rights.