Reconciling Artist’s Moral Rights with Economic Principles and the Problem of Parody: Some Modest Proposals
Back in 2005 I wrote an article for the Journal of Law & Communications, a scholarly publication partnered by the University of Poitiers and the University of Central Lancashire law schools. Due to a long chain of mysterious circumstances, the entire Journal of Law & Communications simply vanished one day – including my article. That is the hazard of publishing only online.
Over the last few years people have asked about the article and it has been referenced a number of times in other articles, but no one could find it after the Journal disappeared. I, of course, didn’t save a copy. But I just found it using the Internet Archive and am republishing it here.
Unless you are into arcane legal theory, I do not recommend reading it. It is rather dry despite my attempt to make it interesting. I won’t be offended if you pass it by.
Here is a PDF of the article as it originally appeared:
And here is the complete text so that databased searches can find it:
Journal of Law and Communications
Revue du Droit de la Communication
Reconciling Artist’s Moral Rights with Economic
Principles and the Problem of Parody: Some Modest
Paul Nicholas Boylan
The effect of globalization is hotly debated throughout the world. But regardless of the debate, globalization seems an unstoppable force transforming the earth by attempting to create a de facto uniform body of rules and regulations for international business relations. In the mid-19th century, a group of nations attempted to create a uniform method for applying copyright law.
The result of this effort was the Berne Convention for the Protection of Literary and Artistic Works. Tucked inside the Berne Convention Treaty was the recognition that artists have special rights, beyond economic interest, to control and protect their art. This early effort to spread a uniform concept of artists’ moral rights is threatened, however, by modern efforts to globalize the rules and procedures relating to intellectual property transactions.
This essay brieﬂy describes the developmental history of the concept of droit moral and then explores (i), the conﬂict between the artist’s “droit moral” or “moral rights” to the integrity of his art and his economic interest in proﬁting from his work by selling these rights; and (ii), the conﬂict between moral rights principles and the American concept of “fair use,” and in particular, the notion of parody, which, by its very nature, borrows substantially from the targeted work and risks violating an artist’s moral rights by altering the subject art and offending the dignity and reputation of the artist.
This essay will suggest ways of harmonizing these competing interests. In the spirit of the new on-line journal where this essay will appear, footnotes will provide references to materials available on the Internet whenever possible. Much of the analysis within this essay will be based on the author’s experience as a practitioner with a working familiarity with the various legal systems and principles discussed. The observations made in this short piece are best seen as practical reﬂections on issues, processes and problem familiar to attorneys whose practices include litigation, negotiation and the representation of artists.
L’effet de la mondialisation est partout dans le monde un sujet très controversé. Si nous laissons de côté ce débat, la mondialisation se révèle être une force irréversible dans la mesure où elle change le monde en essayant de créer de facto un ensemble de lois et règlements dans le but de régir les relations commerciales internationales. Au milieu du XIXème siècle, un groupe de nations a tenté d’inventer une méthode universelle aﬁn de mettre en place le Droit d’Auteur.
Le résultat de cet effort a été concrétisé par la Convention de Berne pour la Protection des Oeuvres Littéraires et Artistiques. Au cœur même du traité de la Convention de Berne, il est stipulé que les artistes ont des droits particuliers, au-delà de leurs intérêts économiques, qui leur permettent de contrôler et de protéger leurs oeuvres. Ce premier effort pour étendre un concept uniforme des droits moraux de l’artiste est cependant menacé par les tentatives actuelles de mondialisation des règles et procédures régissant les transactions en propriété intellectuelle.
Cet article va d’abord décrire brièvement le développement historique du concept du droit moral. Puis, en un premier temps, nous allons explorer le conﬂit entre le « droit moral » ou « droits moraux » de l’artiste de sauvegarder l’intégrité de son art ainsi que l’intérêt économique dont il peut tirer parti en vendant ses droits. En un deuxième temps, nous analyserons le conﬂit entre les principes des droits moraux et le concept américain de « fair use » en particulier dans le cas d’une parodie qui par sa nature même emprunte de façon substantielle à l’œuvre visée et risque donc de violer les droits moraux de l’artiste en détournant le sujet et en dénaturant sa réputation et sa dignité.
Cet article va suggérer différentes façons d’harmoniser ces intérêts divergents. Dans l’esprit de la revue électronique dans laquelle cet article est publié, des notes de bas de page apporteront, dans la mesure du possible, les références des matériaux disponibles sur Internet. La plus grande partie des analyses de cet article sera basée sur l’expérience de l’auteur en tant que praticien, familier des différents systèmes et principes de droit discutés. Les observations faites dans ce court article sont plutôt des réﬂexions pratiques sur les points, processus et problèmes que rencontrent les avocats dont la pratique inclut litiges, négociations et représentation des artistes.
In the mid 19th century, a group of nations attempted to create a uniform method for applying copyright law. The result of those efforts was the Berne Convention for the Protection of Literary and Artistic Works. Tucked inside the Berne Convention Treaty was the recognition that artists have special rights, beyond their economic interests, to control and protect their art. But this early effort to spread a uniform concept of an artist’s moral rights is threatened by modern efforts to globalize the rules and procedures for intellectual property transactions.
The purpose of this discussion is to offer some reﬂection upon possible strategies aimed at resolving issues of artist’s interests in economic and moral control of their art. For our present purposes “art” will be deﬁned broadly to include virtually anything that is the product of the creative process. “Artist” will be expansively deﬁned to include writers, actors and inventors in addition to visual artists.
In what follows I want to explore two particular aspects of the problem. First, I will discuss the conﬂict between an artist’s “droit moral” or “moral rights” in the integrity of their art and an artist’s economic interest in being able to proﬁt from their work by selling these rights. Secondly, I will examine the conﬂict between the principles underpinning Moral Rights and the
American concept of “fair use”. In particular, I will look at the issue of parody, which, by its very nature, borrows substantially from the targeted work and automatically runs the risk of violating an artist’s moral rights by altering the subject art and offending the dignity and reputation of the artist.
Moral Rights Deﬁned
The concept of moral rights – separate from interests that the artist can sell or transfer – is a world-wide legal doctrine created by French judges in the 19 th Century.  Moral rights conceptualize the relationship between an artist and the art he or she creates as that of a parent and child: art is the “spiritual child” of the artist and is born from his or her soul. Moral rights are designed to protect more than the physical manifestation of any particular piece of art; moral rights protect the artist’s reputation as well. In France, moral rights can neither be sold nor waived and endure so long as the work survives in human memory.
The French legal system identiﬁes four different types of moral rights – all exclusively held by the artist as creator: (1) the right of disclosure – i.e., the right to decide when a work of art will be revealed to the public; (2) the right of attribution – i.e., the right of the artist to be identiﬁed with his or her work; (3) the right of integrity – i.e., the right to prevent alteration of the work; and (4) the right of retraction – i.e., the right to remove the work from public scrutiny. There is a ﬁfth right known as droit de suite that is closely connected to moral rights. Droit de suite recognizes artists’ continuing right to the increased economic value of art even after it is old. According to this doctrine, an artist is owed an automatic royalty each time the art is sold at a higher value than the time before.  The theory behind this concept holds that the increased value of a work of art is latent within the art and is based on the artist’s continuing reputation and additional works; the artist, therefore, is entitled to a royalty that reﬂects what should have been paid when the artist originally sold the artwork.
In most jurisdictions that recognize droit de suite (primarily European Civil Law jurisdictions) the right of the artist to an automatic royalty/percentage of the increased resale value of his art is unalienable and non-waivable. In the United States (a common law jurisdiction) a form of moral rights is acknowledged, but droit de suite, in the sense we have deﬁned it here, is not recognized. 
Evolution of Moral Rights as an International Concept
An attempt to recognize and spread the moral rights concept is embodied in the Berne Convention Treaty. The original Berne Convention for the Protection of Literary and Artistic Works took place in 1886 at the instigation of French novelist Victor Hugo, and its purpose was to create a system whereby copyrights would be recognized between sovereign nations. Prior to the Berne Convention Treaty, nations chose not to recognize foreign copyright laws, resulting in situations where authors could publish books in one country, where they are protected under the copyright rules of that country, but those same books could then be published in another country by another person as a new, original work. The true author had no remedy, and as a result intellectual property piracy was encouraged, because the original copyright protection did not extend to, and was not recognized by, other countries.
The Berne Convention Treaty solved that problem. Nations that sign the Berne agreement enjoy the copyright protections of all other signatory nations.  In other words, since both France and the United States are signatories to the Berne Convention Treaty, a French citizen whose French copyright is violated in the United States can seek the protection of United States copyright law, and vice versa.
The Berne Convention Treaty creates basic standards for the international recognition of copyrights, and in this regard has fostered an ever-expanding international understanding with respect to creating and protecting intellectual property. However, it is the Convention’s expressed recognition of artist’s moral rights that is most noteworthy and which has caused the most disagreement among signatories to the Treaty.  Article 6bis of the Berne Convention Treaty recognizes the moral rights of attribution and integrity. 
The Berne Convention is silent on whether these moral rights can be waived or otherwise sold.  In 1989, the United States took a big step toward joining the family of nations when it became a signator to the Berne Convention Treaty.  In 1990, in an attempt to comply with the Berne Convention, the United States adopted the Visual Arts Rights Act (VARA).  However, VARA only recognizes moral rights associated with limited editions of 200 or fewer signed and numbered works.  More importantly, VARA, Subsection (c)(4)(e), allows the artist to “waive” his or her moral rights. 
As illustrated above, there currently exist two different international viewpoints pertaining to moral rights. The ﬁrst is the French view that moral rights cannot be waived or otherwise alienated and the second is the economically driven American view that allows moral rights to be waived. All other jurisdictions fall somewhere within the continuum embodied by the French view on one side of the conceptual spectrum and the American view on the other. 
Moral Rights vs Economic Interests
Beyond recognition of the existence of the concept of moral rights, there is little international agreement on its application. This fragmentation is the result of the conﬂict between moral values and economic values. The ultimate reasoning behind the French creation and recognition of an artist’s moral rights is the belief that art is unique and that the protection of an artist’s rights is the moral thing to do. The ultimate reasoning behind the economic viewpoint is that art is a product that can and should be bought or sold no differently than any other property.
A growing number of jurisdictions are allowing artists to waive their moral rights.  This essentially permits artists to sell their moral rights. In the United States, for example, and undoubtedly in other common law jurisdictions, waiver clauses are becoming part of any contract that implicates the transfer or use of intellectual property. The fact that so many jurisdictions allow artists to waive their moral rights is proof that economic concerns are and should be an integral part of the moral rights debate. The rationale allowing waivers argues that waivers do not alienate any moral rights, but rather make those rights unenforceable. 
When artists are allowed to waive their moral rights, two results are possible: either the system that allows waivers acts to increase the price for art, thereby theoretically putting more money into the artist’s pocket, or, far more likely, moral rights end up meaning nothing at all because artists lack the negotiating strength necessary to a higher price. Therefore, permitting waivers of an artist’s moral rights champions a disingenuous legal ﬁction that pays lip service to inalienable rights whilst disenfranchising the artist from the same rights that the rationale pretends to recognize. Like a watchdog that cannot bark, a right without a remedy is useless.
Even worse, when artists waive their moral rights, they can no longer act as the guardians of their art’s integrity, thereby undermining the original impetus for droit moral in the ﬁrst place. The purpose underlying the Berne Convention was and is to foster mutual understanding and international consensus.  This essay is presented in that same spirit, and presumes that an international consensus on moral rights is worth achieving because the moral rights of the artist are worth preserving.
In order to achieve this, it is necessary to recognize what appears to be an unbreakable impasse between the moral view and the economic view. In order to resolve this impasse, it is important to accept that, ultimately, in the battle between what is right and what makes money, money will ultimately push morality out of the way. Dostoyevsky said that hunger knows no morality.  After the Berlin Wall fell, humorist and philosopher A. Witney Brown asked, “Who would have believed that the fatal ﬂaw of communism [a political theory based on moral principles of fairness and equality] is that there is no money in it?” 
Head to head, moral rights cannot prevail against economic interests. Recent developments in international trade law illustrate a trend in an international direction away from moral rights and toward economic interests. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) has superseded the Berne Convention in importance, but has adopted articles 1 through 21 of the Berne Convention –with one important exclusion: Part II, Section 1, Article 9.1 of TRIPS states that “[m]embers shall not have rights or obligations under this
Agreement in respect of the rights conferred under Article 6bis [moral rights] of… [the Berne] Convention or of the rights derived therefrom.”  In other words, TRIPs expressly excludes moral rights from international trade consideration.
This is a serious blow to the moral rights movement. The TRIPs exclusion marginalizes moral rights as an international issue. Even worse, the exclusion of moral rights from TRIPs cuts moral rights issues out of the comprehensive conﬂict resolution mechanisms within TRIPs. 
If the concept of droit moral is going to survive in an increasingly amoral, economically driven world, a compromise between the two paradigms is necessary. And, if the traditional viewpoint of moral rights is to make inroads into economically driven jurisdictions, an economic rationale must be applied to protect moral rights because, in those jurisdictions, morality is a luxury rather than a foundational necessity.
The artist’s economic interests in his or her art are a good place to start. The droit de suite aspect of the moral rights theory recognizes the artist’s economic rights as a quasi-moral right by requiring automatic royalties if and when a piece of art is resold at a higher value. Underlying the droit de suite concept is an implicit understanding that artists often do not have sufﬁcient bargaining strength to negotiate a fair price for their art.
In my own experience, this lack of negotiating strength is painfully apparent. Very few artists have the economic resources or the experience and skill to negotiate a fair contract.  Most are poor and inexperienced. Those purchasing either art or the services of an artist (including writers and performers) often occupy superior bargaining positions, resulting in “take-it-or- leave-it” contracts that often give the artist very little monetary reward for their art and virtually no practical remedy to rescind an unconscionable contract.
The sad reality is that the majority of artists may never have the ability to negotiate ‘at arms length’ (i.e. fairly and equally) with purchasers of art. What can be done to help artists further their economic interests in their art? Droit de suite is an example of a legal mechanism designed to protect the artist’s economic interests independent of the artist’s ability to negotiate a fair price. Droit de suite “levels the playing ﬁeld” by requiring automatic royalty payments to the artist which automatically takes into consideration that the original price will be low, thereby assuring that the resale price will be higher and the artist will ultimately be paid. 
Moreover, if droit de suite is to be an effective means of protecting an artist’s economic interests, then waivers of this right should be prohibited.
More can and should be done to protect artists’ interests without offending either moral or economic viewpoints. In order to offset an artist’s inevitable bargaining disadvantage, I propose shifting the burden of an unfair bargain to the purchaser. Burden shifting for public policy reasons is common. For example, in England, to further the public policy of avoiding frivolous lawsuits, a plaintiff that is unsuccessful must pay the defendant’s attorneys’ fees.  This shifts the burden of being wrong to the plaintiff, who, consequently, must weigh the merits of his claim very carefully before initiating a lawsuit. 
Likewise, the burden of purchasing art for a fair price should shift to art buyers. A burden- shifting law would provide that the purchase price for art shall reﬂect the “fair market value” for that art;  the artist has a cause of action to obtain fair market value if a piece of their art is sold for less than fair market value; and the prevailing plaintiff shall be awarded attorneys’ fees and court costs. Under a “fair market value” standard, purchasers must make efforts to provide a fair price in order to avoid litigation, thereby shifting the burden of being unfair from the artist, who lacks the resources to negotiate, to the purchaser, who has the resources necessary to determine fair market value.
Moral rights could remain inalienable and non-waivable if conﬂicts between moral and economic rights were reconciled through the application of basic contract law. Artists would be permitted to “lease” their moral rights to prospective purchaser/lessees for a negotiable fee, allowing the artists to retain their moral rights and exercise them at any time, subject to contractual damages.
For example, an artist – whom we will call Noirin – sells her painting “The Mona Lisa Marie Presley” to a purchaser – whom we will call Colm – for $10,000. This sale also automatically embodies a revocable “lease” of Noirin’s moral rights relating to her painting. For the agreed upon price, Noirin allows Colm to remove Noirin’s signature from the work and to put an image of the painting on T-shirts and bath towels. However, Noirin later changes her mind and demands that no more T-shirts be made and that all prints be withdrawn from public view. It
would be Noirin’s right to change her mind for any or no reason. Colm would do as Noirin demands, but then would sue Noirin for damages, including but not limited to retrieving the $10,000 purchase price and consequential damages for the purchase of materials intended for T-shirts that now will never be made or sold. 
Just like any contract involving the sale or purchase of intellectual property, the proposed leases would determine the rights of the parties. For example, the result might be different if
Colm decided to utilize the image in a way that was not expressly authorized by the lease agreement. Under this scenario, Noirin would retain the right to disallow the use she did not expressly agree to because she had not leased it out in the ﬁrst place. The moral rights lease concept balances moral principles with economic interests, maintaining the artist’s moral rights while requiring the artist who exercises his or her rights after leasing them out to make whole a purchaser who relied in good faith upon the artist’s consent.
The fair market value burden shifting solution also solves the problems inherent in droit de suite – i.e., the problems of depreciation and anticipation. It is arguable that the vast majority of art depreciates and that, as a result, few artists would beneﬁt from the automatic royalty. A study conducted by the Art Dealers Association found that 90 percent of American art depreciates in value.  Similarly, some economists argue that application of the droit de suite automatic royalty actually disadvantages artists by lowering the price of art, the theory being that since it is presumed that each purchase agreement will anticipate a higher resale value in the future, the artist will be offered a lower price. 
Imposing the burden of paying fair market value eliminates the risk of losing the droit de suite royalty due to depreciation and eliminates lower prices due to anticipation of droit de suite royalty payments. Combining a non-waivable droit de suite, the ability to lease droit moral (with conﬂicts resolved through contract law) and the imposition of a fair market value standard upon art purchasers would reconcile the moral viewpoint with the economic viewpoint.
Moral Rights v. Parody as a Fair Use
Although the moral rights of integrity and attribution are now recognized to a limited extent in the United States, these rights are expressly limited by American “fair use” doctrine.  Fair use is primarily a defense against copyright infringement. In the mid-1980’s, American courts adopted and expanded upon English “fair dealing” principles, and this judge-made law was codiﬁed in 1976 and made part of the US Copyright Act. 
The American fair use doctrine exempts certain uses from copyright protection. Criticism, reporting, comment, news, teaching, scholarship and research are all fair uses of copyrighted materials require no prior permission from the copyright holder.  American law recognizes parody as a fair use, exempt from copyright protection.  A parody is a work that ridicules another usually well-known work by imitating it in a comic way.  Unlike other forms of fair use, a fairly extensive use of the original work is permitted in parody in order to “conjure up” the original.  Judges understand that, by its nature, parody demands some taking from the original work being parodied.  The parodist “transforms the original by holding it up to ridicule.” 
Parody as a protected form of artistic expression is less recognized outside the United States.  However, parody, in one form or another is recognized in a surprising number of jurisdictions. English law recognizes “fair dealing” which, as the conceptual basis for the American fair use doctrine, recognizes exceptions to copyright protection for criticism. 
The same is true for all other Commonwealth Countries, e.g., Canada and Australia.  The German “free utilization” doctrine allows parody that is clearly recognizable as making fun of the protected work.  Even French law – the originator and most stalwart protector of droit moral – exempts “parodies, pastiches, and caricatures” from intellectual property protection so long as a “comic intent” is the reason for the unauthorized copying.  Dadaism – an artistic movement that arose between the two world wars – has its origins in parody and satire. 
There is no clear explanation of why parody is recognized and afforded protection around the world. Some authorities opine that, in the United States, the protection of parody is an extension of the American tradition for the protection of free speech as embodied in the United States Constitution and repeated in the constitutions of every individual state of the United States.  However, this American preference does not explain why parody is afforded protection in jurisdictions that do not have a similar constitutional tradition.
When examined within a broader historical framework, the answer becomes apparent. Parody is an ancient form of artistic expression deeply rooted in the artistic and political tradition of western civilization. The ﬁrst parodies were ancient Greek poems that imitated and mocked another poem or poet’s style.  From there, parody developed into an art form that used ridicule to foster social and political discourse: from Aristophanes to Dante Alegeri to William Shakespeare to Voltaire to Jonathan Swift to Punch and Mad magazines, parody has served as a method for criticizing public ﬁgures, other artists and other art. 
The problem, in relation to moral rights, however, is that parody – an older and better established concept than the comparatively newer concept of artist’s moral rights directly violates the artist’s right to protect his or her reputation by preventing the alteration of his or her art. Parody depends on copying a work of art and altering that art in order to poke fun at the art and/or artist, thereby casting ridicule upon the art and/or artist.  When this happens, parody invariably takes precedent over the artist’s moral rights. For example, our hypothetical artist, Noirin, discovers that a comedian – let’s call him Shecky – has painted a curly moustache on her painting, “the Mona Lisa Marie Presley,” and placed the altered painting in a humorous magazine edited by Shecky. American copyright law expressly subordinates Noirin’s moral rights to the fair use defense which, under American law, includes parody. Noirin cannot, therefore, claim her moral rights in the United States.  Neither will the have a remedy in France – the single jurisdiction where her moral rights are best protected – unless she can prove that Shecky altered her art for malicious, as opposed to comedic, reasons. 
We are presented with the same sort of problem currently apparent in the conﬂict between moral rights and economic interests, i.e., an either/or choice with moral rights at a disadvantage. There are legal mechanisms that might potentially balance the competing interests. However, to understand the efﬁcacy of such mechanisms, it is necessary to determine when parody is effective and why.
When anyone – layperson or academic – examines parody, one single truth becomes apparent: parody is effective only if the viewer/reader knows the work that is the source of the satirist’s ridicule. It is in that recognition where parody becomes a form of comment that is worthy of protection. Parody is meaningless without the viewer/reader’s recognition, intimate knowledge and understanding of the work being parodied or satirized. The key, then, is asking how well known is the art or artist being parodied? The less they are known, the less valuable the parody and the less it should be protected. The better known the art or artist, the more valuable the parody and, therefore, the more protection it should be afforded.
Is there an area of American jurisprudence that successfully makes these distinctions and lends guidance to establishing a new legal paradigm that balances an artist’s moral rights with society’s interests in parody? Possibly. A comparison can be made between an artist’s interests in moral rights and a person’s interests in privacy. In the United States, every citizen has right of privacy and right to a good reputation.  However, an individual citizen’s rights to privacy become weaker the more they thrust themselves into the vortex of public opinion.  In other words, a person’s privacy and rights to protect their reputation weaken the more the more famous they become.
The impact of this approach is best illustrated by showing how private ﬁgures are treated differently from public ﬁgures when it comes to defamation. Let us say that Colm is an automobile mechanic who has never run for public ofﬁce and has never published a novel or sold a painting. Shecky, a person in his community, begins to spread rumours that Colm is a drunken child molester. In the United States, Colm can sue Shecky for defamation, for ruining his reputation in the community even if Shecky believed, in good faith, that Colm was a drunk.
Now, let us imagine that Colm is a movie star or the town mayor and Shecky publishes and distributes a newsletter accusing Colm of being a drunken child molester. Since Colm is a public ﬁgure, if he sues Shecky for defamation, he will be required to prove that Shecky made these defamatory statements with actual malice – that is to say, Colm would have the burden of proving that Shecky made those statements actually knowing they were not true and with the intent to injure Colm. 
This is a heavy burden to meet. There are different levels of being a public ﬁgure under American law. An “all purpose public ﬁgure” is someone with widespread fame, notoriety or special prominence in society; a “limited public ﬁgure” is someone who has thrust his or her self into a speciﬁc public issue.  Private ﬁgures have the strongest rights to privacy; limited public ﬁgures have rights to privacy equal to private ﬁgures, but only as to those matters that the limited public ﬁgure has not “thrust” into the public eye; public ﬁgures have very limited privacy rights. 
Similar standards can be applied to artists. The less known an artist and his or her art, the more protection he or she should receive from parody. Alternatively, the more an artist and his or her art are known, the less protection from parody he or she should receive. This standard protects the artists’ reputations when they need it most, namely, when they are in the process of gaining their reputation at the start of their artistic careers. A protected reputation also protects the commercial viability of their art at the point in their career when they need a good reputation most.
Admittedly, application of the suggested standard will depend on the extent of the publication, and this is analogous to the American distinction between general public ﬁgures, limited public ﬁgures and private ﬁgures. For example, let us say that a parody of a little-known artist is published widely to the mass market. That artist should be afforded protection from the parody because the intended audience doesn’t know whom he or she is, and therefore the value of the parody is diminished. However, the result changes if the publication is made in a small periodical that is distributed to art dealers. Even though the artist might be relatively unknown to the general public, the artist is well enough known within the target audience for the parody to be protected under the proposed new standard.
Workability Argument Pre-emption
The previous paragraph illustrates that the methods suggested in this essay for harmonizing moral rights with economic interest and parody/satire would be promulgated through statute, but the statutory scheme would necessarily be vague and therefore necessarily interpreted on a case-by-case basis similar to the way statutory provisions are interpreted and reﬁned in common law jurisdictions. This process seems contrary to the legal traditions within civil law jurisdictions that prefer speciﬁc statutory legal structures. However, French judges created droit moral in the ﬁrst place within a strong civil law jurisdiction. In essence, these innovative French jurists performed a function that is familiar to the common law: identifying rules of equity when they are needed. In common law jurisdictions such as the United States, judges have an integral role in reﬁning statutory schemes and clarifying ambiguous statutory language. Regional appellate courts decide disagreements between trial attorneys and trial judges concerning the scope of statutes. Disagreements between appellate courts are resolved by state and federal supreme courts, which set future standards in statutory interpretation and implementation. This is a function that judges in civil law jurisdictions can perform. Since judges created droit moral, it is appropriate that judges would reﬁne any necessarily vague statutory mechanism that advances the concept.
If moral rights for artists are a concept with value, then those rights are worth preserving and expanding through an internationally uniform approach. Currently, the concept is fragmented and non-uniformly applied. In many jurisdictions, waivers are permitted, rendering the concept and actuality of droit moral meaningless. Trends in globalisation of intellectual property treaties are diminishing the prospect that any emerging approach will include moral rights.
This essay has demonstrated that, in order to advance the interests of preserving and expanding moral rights internationally, it is necessary to reconcile the moral viewpoint with the economic viewpoint, and to do so, it is necessary to discover strategies that satisfy economic interests. A balance between moral rights interests and economic interests can be reached by strengthening droit de suite, imposing a fair market value standard on art sales and allowing moral rights to be leased, with lease revocations being resolved by applying contract law. In addition, through an application of a quasi “public ﬁgure” standard, it is possible to reconcile artists’ moral rights in protecting the integrity of their art and their reputations with society’s interest in acknowledging the cultural and critical value of parody.
 Ciolino, Rethinking the Compatibility of Moral Rights and Fair Use , 54 Wash & Lee L. Rev. 33 (1997). http://www.loyno.edu/~dciolino/Publications/Rethinking%20the%20Compatibility%20of%20Moral%20Rights%20and%20Fair%20Use.pdf
 Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886 – 1986, at 456 (1987).
 National Information Infrastructure (1995) http://www.ladas.com/NII/CopyrightInternational.html [search term “dishonor”]. The concept of using moral rights to protect the artist’s reputation is included in the Berne Convention Treaty. http://www.law.cornell.edu/treaties/Bernee/6bis.html [search term: “reputation.”]
[search term “ France”].
 Id., note 1.
 Rushton, The Law and Economics of Artists’ Inalienable Rights (2001) http://www.econ.uregina.ca/research/papers/095.pdf (search term “nonwaivable“)
 Although U.S. federal law does not recognize the droit de suite automatic royalty, many states, such as California, have adopted the concept. California Civil Code, section 986, subsection (a); http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=00001-01000&ﬁle=980-989 [search term: “right of the artist”]. Civil Code section 986 allows droit de suite royalties to be waived, but only on the condition that the artist is paid more than the statutory 5 percent minimum. In other respects, however, California’s version of droit de suite falls short of the European model. The remaining subsections of Civil Code section 986 signiﬁcantly reduce the scope of droit de suite, including limiting application only to works of art valued at $1,000 or more.
For other aspects of California’s attempt to legislate moral rights for Californian artists, see Code of Civil Procedure sections 987 (preservation of ﬁne art), 1738 (deﬁnitions), 1738.5 (delivery to art dealer), the text of which can be found at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=00001-01000&ﬁle=980-989.
 Wikipedia, Berne Convention for the Protection of Literary and Artistic Works, http://en.wikipedia.org/wiki/Bernee_Convention_for_the_Protection_of_Literary_and_Artistic_Works
 Id. It is interesting to note that at least one commentator opines that it was American copyright piracy of European works that prompted the call for a more uniform international application of copyright protection. Rajan, Moral Rights and Copyright Harmonisation: Prospects for an “International Moral Right”?, http://www.bileta.ac.uk/02papers/sundarajan.html [search term “ironically”].
 The Columbia Encyclopedia, Sixth Edition (2001); http://www.bartleby.com/65/co/copyrigh.html [search term: “signatory country”]
 The moral right doctrine was incorporated into the Berne Convention during its third revision in 1928. Kwall, Copyright and the Moral Right: is an American Marriage Possible? , 38 Vand. L. Rev. 1, note 38 (1985) The Berne Convention’s recognition of moral rights was initially the barrier to the United States becoming a signator to the Berne Convention Treaty. Nimmer, Implications of the Prospective Revisions of the Berne Convention and the United States Copyright Law, 19 STAN. L. REV. 499, 518 (1967)
 Article 6bis of the Berne Convention provides:
(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modiﬁcation of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratiﬁcation of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed http://www.law.cornell.edu/treaties/Bernee/6bis.html
 American publishers take advantage of this ambiguity by habitually including “moral rights clauses” in contracts requiring artists to waive and/or assign their moral rights and otherwise contractually agree that the Berne Convention will not apply. http://www.writepage.com/writing/moral.htm
 The Columbia Encyclopedia, Sixth Edition (2001); http://www.bartleby.com/65/co/copyrigh.html [search term: “1989”]
 17 USC Sec. 106A (VARA) recognizes the rights to attribution and integrity, but restricts application of these moral rights to visual artists such as painters and sculptors.http://www.megalaw.com/top/copyright/17usc106a.php. Sculptors who’s sculpture is “incorporated or made part of” a building gets additional rights under 17 USC Sec. 113. http://www.megalaw.com/top/copyright/17usc113.php.
 http://www.unm.edu/~ripls/copyinfo/fairuse.htm [search term: “200”].
 http://www.megalaw.com/top/copyright/17usc106a.php [search term: “waiver”].
 For example, Ireland follows an approach that is more extensive than the American view in recognizing moral rights, but, like the Americans, allows these rights to be waived. http://www.irishstatutebook.ie/ZZA28Y2000S116.html. Albanian copyright law recognizes an “author’s” moral rights similar to those recognized in civil law jurisdictions. http://www.aidaa.org/aidaa/tp/lois/al/al03.htm. Albanian moral rights are only transferable to the artist’s heirs. http://www.aidaa.org/aidaa/tp/lois/al/al07.htm. Germany and the Netherlands follow the Berne Convention, but allow an artist’s moral rights to terminate in the manner that a copyright terminates, whereas, in France, an artist’s moral rights are perpetual. Kwall, Copyright and the Moral Right: is an American Marriage Possible?, 38 Vand. L. Rev. 1, 15 (1985). In the United Kingdom, moral rights are expressly non assignable ( Copyright, Designs and Patents Act, s 94 (1988)) but are made waivable by instrument. Copyright, Designs and Patents Act, s 87 ( UK). In the People’s Republic of China – which is becoming a de facto civil law jurisdiction – moral rights cannot be contractually alienated, but can be waived in exceptional circumstances. Zhonglin, Author’s Moral Rights in UK and China (2002); http://www.chinaiprlaw.com/english/forum/forum22.htm [search term: “exceptional”]. An excellent illustration of the vast differences that can, have and do exist between jurisdictions when it comes to recognizing and protecting moral rights can be found in the appendix found at Kwall, supra at 95.
 See infra note 24.
 For example, the Warner Brothers Consumer Products licensing agreement speciﬁes that, if the licensee creates any art for Warner, “…all rights (if any) of “droit moral,” rental rights and similar rights in and to the Artwork (the “Intangible Rights”) ….” ; http://contracts.onecle.com/bam/warner.lic.-ppg.2000.03.08.shtml [search term: “moral”]. In international business agreements, moral rights have gained recognition as merely another item to place in standard contractual waiver clauses. For example, the Visa International Services Association (Visa-Asia) web site access agreement states in part: “[b]y submitting material to Visa-Asia.com, you irrevocably transfer and assign to Visa, and forever waive and agree never to assert, any copyrights, “moral” rights, or other rights that you may have in such material. http://www.visa-asia.com/general/legal.shtml [search term “moral. The same is true for websites that accept submissions. Seehttp://www.koreanstown.com/modules.php?name=Docs&ﬁle=terms [search term: “moral”]; see also,http://www.thesystemwithin.com/Submit_Agreement.html [search term: “waiver”]. Even international hotels care careful to include indemniﬁcation of droit moral claims in their room rental agreements. See http://www.congressplazahotel.com/privacy.htm [search term: “moral”].
 Cholino, Rethinking the Compatability of Moral Rights and Fair Use, 54 Wash. & Lee L. Rev. 33, 42, note 43 (1997)
 Rajan, Moral Rights and Copyright Harmonisation: Prospects for an “International
Moral Right”?, http://www.bileta.ac.uk/02papers/sundarajan.html [search term: “baseline standard”].
 Dostoevsky, The Brothers Karamazov (879) The Grand Inquisitor, http://www.tameri.com/csw/exist/dostgi.html [search term: hunger]
 http://www.chinaiprlaw.com/english/forum/forum22.htm [search term “weak bargaining position”].
 Droit de suite is clearly directed at art dealers who are notorious for purchasing art at a low price and selling it in their art galleries for much more.
 http://www.moss-barnett.com/CM/Articles/Articles66.asp [search term: “english rule”].
 In California – the land of litigation – attorney fees are not always awarded to the prevailing party. California Code of Civil Procedure awards costs – e.g., ﬁling fees – as a matter of right to the prevailing party, but not attorney’s fees – which are awarded if the parties have an agreement providing them. Code of Civil Procedure section 1021.1 does allow attorney’s fees to be awarded, but only in rare circumstances. http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=01001-02000&ﬁle=1021-1038. Consequently, litigants have little to lose by ﬁling a lawsuit.
 Fair market value is a straight forward and commonly applied standard. The Judicial Council Of California Civil Jury Instructions (2004), Instruction No. 2102 states that “ ‘fair market value’ is the highest price that a willing buyer would have paid to a willing seller, assuming: 1. that there is no pressure on either one to buy or sell; and 2. that the buyer and seller know all the uses and purposes for which the [insert item] is reasonably capable of being used.” Under the proposed standard, if there were a conﬂict between an artist and a buyer over the fairness of the purchase price, it would be the buyers burden to prove that the price provided was the highest price that a willing buyer would have paid.
 French law has attempted to implement this solution by promulgating a statutory right to indemnity for the transferee if an author corrects or retracts their work after selling it. See Code de la Propriete Intellectuelle, art. L.121.4, reprinted in Andre Francon, Cours de Propriete Litteraire, Artistique et Industrielle 289-322 (1993).
 Berger, Why Resale Rights for Artists Are a Bad Idea, note. 2 (2001); http://www.law.harvard.edu/faculty/martin/art_law/why_resale_rights_for_artists.htm. It is arguable from a cosmopolitan, global point of view that Berger’s depreciation ﬁgures are less a reﬂection of what art is worth than it is a comment on the American penchant for depreciating everything for tax purposes or, equally likely, a reﬂection on the poor quality – and therefore the poor value – of American art in general. The value of art depends entirely on the values of the society that engenders the artists that create it, which is ultimately at the heart of the conﬂict between moral interests in art, a conﬂict between jurisdictions that view art as having values beyond monetary worth and jurisdictions that see art as merely another commodity to be bought and sold, no different, economically speaking, than real estate or food.
 Rushton, supra note 9; http://www.econ.uregina.ca/research/papers/095.pdf [search term “decrease“].
 § 107. Limitations on exclusive rights: Fair use Notwithstanding the provisions of sections 106 and 106A [VARA], the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means speciﬁed by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonproﬁt educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a ﬁnding of fair use if such ﬁnding is made upon consideration of all the above factors. http://cyber.law.harvard.edu/property/library/copyrightact.html
 Ciolino, supra note 1.
 However, the American fair use defense is applicable on a case-by-case basis, with different judges applying the four factors differently, resulting in conﬂicting rulings. For example, Mad Magazine’s parody of Irving Berlin songs was held to be a fair use (Irving Berlin et al. v. E.C. Publications, Inc. 329 F. 2d 541 (2d Cir. 1964); http://www.ccnmtl.columbia.edu/projects/law/library/cases/case_berlin_ec.html) whereas “The Air Pirates” – an excellent parody of Walt Disney Cartoon characters depicted in unsavory situations using less than pleasant language – was held to infringe Walt Disney’s copyrights (Walt Disney Productions v. Air Pirates, 581 F.2d 751 (C.A.Cal.,1978); http://www.kentlaw.edu/e-Ukraine/copyright/cases/walt_disney_productions_v_air_pirates.htm). Similarly, in Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997), http://www2.tltc.ttu.edu/Cochran /Cases%20&%20Readings/Copyright-UNT/dr-seuss.htm, an author mimicked the distinctive style Dr. Seuss while reciting the facts behind the O.J. Simpson murder trial. The Ninth Circuit Court of Appeals inexplicably held that because the book not poke fun at or ridicule Dr. Seuss, the book was therefore satire, not a parody, and therefore not a fair use of Dr. Seuss’ style.
 Campbell v. Acuff-Rose Music, Inc. (1994) 510 U.S. 569; http://www.bc.edu/bc_org/avp/cas/comm/free_speech/campbell.html.
 In SunTrust Bank v. Houghton Mifﬂin Co ., 252 F. 3d 1165 (11th Cir. 2001);
http://laws.lp.ﬁndlaw.com/11th/0112200opnv2.html; Houghton Mifﬂin – a publishing house – published a parody of the well-known American Civil War novel, Gone with the Wind written by Margaret Mitchel. The parody told the same story as Gone with the Wind with the same characters but from the southern slaves’ point of view, with the intent that the parody would be a critique of Gone With the Wind’s depiction of slavery. The Mitchel Estate owned the copyright to Gone With the Wind and sued Houghton Mifﬂin on the theory that the parody violated their copyright. The trial court agreed, calling the copying of plot and character “unabated piracy” and issued an injunction preventing Houghton Mifﬂin from publishing the parody, but the 11 th Circuit Court of Appeal reversed, holding that the parody was clearly a protected use.
In Elsmere Music, Inc. v. National Broadcasting Co., Inc., 482 F.Supp. 741, 747 (S.D.N.Y.), aff’d, 623 F.2d 252 (2d Cir. 1980); NBC broadcast a parody of an advertising campaign conducted by the City of New York to improve it’s image and increase tourism. That advertising campaign consisted of celebrities singing a jingle “I love New York” over and over again. The parody, however, was shot in the same style as the commercials promoting New York, with the exception that those depicted in the commercial were singing “I love Sodom.” The owner of the copyright on the jingle, sued for copyright infringement. The court disagreed, holding that the infringement was a parody, and therefore a fair use of the copyrighted material.
 http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/ chapter9/9-a.html#2. Whereas parody is permitted to extensively use part or all of the original work in order to make it clear to the audience what work is being ridiculed, the same thing cannot be said for satire. Unlike parody, satire doesn’t necessarily make fun of any particular work of art; instead, satire more often makes fun of something independent of a particular work of art. That is why satire is less likely to be considered a fair use. However, this distinction is another example of a legal ﬁction that essentially serves very little purpose. As Justice Souter noted, “parody often shades into satire when society is lampooned through its creative artifacts, or that a work may contain both parodic and non-parodic elements.” Campbell v. Acuff-Rose Music, Inc., (1994) 510 U.S. 569, 581; http://www.bc.edu/bc_org/avp/cas/comm/free_speech/campbell.html. The parody at issue in Hustler Magazine v.
Falwell, 485 U.S. 46 (1988), http://www.bc.edu/bc_org/avp/cas/comm/free_speech/hustler.html (parody of a famous advertisement combined with social satire) fully validates Justice Souter’s analysis. Duchamp’s drawing of a mustache and goatee on Da Vinci’s Mona Lisa equally illustrates Justice Souter’s point; Duchamp was clearly using the image as both satire and parody. For the purposes of this essay, I consider parody and satire as two sides of the same conceptual coin. The fair use analysis may result in one being afforded more protection than the other due to the amount of the original work needed to make the satirist or parodist’s point, but the reasons why both parody and satire are potentially protected is the same: it is the commentary/critical nature of both parody and satire – their character and purpose – that gives value to those forms of expression and potentially protects them as fair use.
 Campbell v. Acuff-Rose Music, Inc., (1994) 510 U.S. 569, 581; http://www.bc.edu/bc_org/avp/cas/comm/free_speech/campbell.html [search term “claim to use”]
 http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter 9/9-b.html#1
 http://www.cityu.edu.hk/cityutoday/news/category/ideas/roundtable/ n20011113_04.htm [search term: “criticism”]
 Leaffer, The Uncertain Future of Fair Use in a Global Information Marketplace; http://moritzlaw.osu.edu/lawjournal/leaffer.htm [search term “parody”].
 Id. French law presently attempts to balance an artist’s moral rights with the more ancient art of criticism by protecting the artist from criticism that has the sole purpose of abusing or vexing the artist – i.e., lack of comic intent. Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 HARV. L. REV. 554, 572(1940; Strauss, The Moral Right of the Author, 4 AM. J. COMP. L. 506, 513-14(1955). France also attempted to balance these competing interests by legislating an artist’s right to respond to criticism in print. Roeder, supra at 572 note 6.
 Dadaism is a school of artistic expression that originated as a protest against art and against history. http://encyclopedia.thefreedictionary. com/Dadaist. In 1919, Marcel Duchamp – one of the most inﬂuential artists in the early Dada movement – printed and distributed cheap postcards showing the Mona Lisa with a moustache and goatee drawn in pencil with the caption “L.H.O.O.Q”, which is reputed to have been a pun that translates from the colloquial French as “she is hot in the ass.” http://www.studiolo.org/Mona/MONASV12.htm. If Leonardo da Vinci had been alive when Duchamp defaced the Mona Lisa, it is possible that Duchamp’s postcards might not be protected pursuant to the modern French test for parody as a protected form of speech. Art historians believe that the purpose behind the defacement was to protest the “high culture” aspect of art, forcing the viewer to see ordinary, familiar objects in a new light, transforming vulgar vandalism and cheap reproduction into art; Duchamp may have also used his defacement to comment on Leonardo da Vinci’s rumoured homosexuality. http://www.studiolo.org/Mona/MONASV12.htm. And, although no commentator that I am aware of has made the connection, it is also apparent that Duchamp was commenting critically on “naughty French postcards” that were banned by the sanctimonious Victorian English in 1853 (http://www.porn-report.com/202- history-of-pornography.htm [search term:”postcard”) but that proliferated at the turn of the twentieth century. http://www.ﬁndarticles.com /p/articles/mi_g1epc/is_tov/ai_2419100956 [search term: “naughty”]. If all of the foregoing critical analysis is true, then Duchamp’s printing and distribution of the defaced Mona Lisa was a serious artistic undertaking lacking comic intent, and, without that comic intent, Leonardo could have invoked his moral rights under French law to prevent Duchamp from both defacing the Mona Lisa and harming Leonardo’s reputation. But anyone looking at L.H.O.O.Q. – with or without knowing anything about the Dada movement or Duchamp’s supposed purpose in creating, printing and distributing the postcard – is struck with how funny it is. L.H.O.O.Q. is brilliant, elegant and profoundly complex satire and parody. Nevertheless, a paradox is apparent: there is no doubt that, if Leonardo had been alive at the time Duchamp defaced the Mona Lisa, he would conceivably have had grounds under French droit moral principles to prevent Duchamp from creating what is clearly a work of art. This hypothetical example shows that droit moral may protect an individual artist’s art and reputation while simultaneously suppressing other, equally legitimate art. The topic of defacing the Mona Lisa with a moustache is a frequent topic of moral rights commentary. See, Yonover, The “Dissing” of Da. Vinci: The Imaginary Case of Leonardo v. Duchamp: Moral Rights, Parody and Fair Use, 29 Val. U. L. Rev. 935, 937 (1995)
 http://encyclopedia.thefreedictionary.com/fair%20use [search term: “First Amendment”]
 http://encyclopedia.thefreedictionary.com/fair%20use [search term: “ancient”]
 In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the United States Supreme Court upheld a publisher’s parody spooﬁng a series of ads for Campari Liqueur. In the spoof, the Reverend Jerry Falwell – a well-known, right wing, conservative, politically active minister and self-proclaimed leader of the American “silent majority” – was portrayed as having had a drunken sexual encounter with his mother in an outhouse. Reverend Falwell sued in federal court for libel, invasion of privacy and intentional inﬂiction of emotional distress. The trial court held in favor of Hustler. The appellate court and the United States Supreme Court agreed, with the USSC holding that public ﬁgures and public ofﬁcials cannot prevail without showing “actual malice” – i.e., “with knowledge that the statement was false or with reckless disregard as to whether or not it was true.” The Court also recognized parody/satire aided the free ﬂow of ideas despite a possible negative emotional impact on the target of ridicule. http://caselaw.lp.ﬁndlaw.com/scripts/getcase.pl court=us&vol=485&invol=46]
 http://www.megalaw.com/top/copyright/17usc107.php [search term: “notwithstanding].
 See supra note 50.
 Privacy and defamation are commonly part of state law. Florida is typical of the kinds of privacy and reputation protections states provide. See http://188.8.131.52 /search?q=cache:WVOdfhcTf1wJ:www.law.stetson.edu/courses/torts ﬂtorts/powerpoint /InvasionofPrivacy.ppt+%22public+ﬁgure%22+privacy&hl=en&ie=UTF-8
 http://www.pa-newspaper.org/legal/Legal%20Handbook/privacy.htm [search term: “public ﬁgures”].
 New York Times Co. v. Sullivan, 376 US 254 (1964), http://www.bc.edu/bc_org/avp/cas/comm/free_speech/nytvsullivan.html.
 http://jcomm.uoregon.edu/~tgleason/j385/Public_Figure.html [search terms “all purpose” and “limited”].
 Gertz v. Robert Welch, Inc. 418 US 323 (1974), http://www.bc.edu/bc_org/avp/cas/comm/free_speech/gertz.html [search term: “private”]; Armstrong v. Simon and Schuster, Supreme Court of the State of New York, County of New York, Case No. 25863/92; http://www.nycourts.gov/comdiv/Law%20Report%20Files/October%201999/Armstrong.htm [search terms: “general” and “limited”].
© Journal of Law & Communications 2005