Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of Droit Moral between France and the United States
![handle is hein.journals/cjla22 and id is 371 raw text is: Safeguarding Artistic Creation and the Cultural Heritage: A
Comparison of Droit Moral Between
France and the United States
by Cheryl Swack*
INTRODUCTION
In contrast to United States copyright law, which establishes economic incentives
for artists to create for the benefit of society, French copyright law establishes both
an artist's right to economically benefit from the creation of his works and the non-
economic right to protect his professional reputation. In France, an artist is legally
protected by being permitted to safeguard the works forming his artistic reputation,
which in turn provide his livelihood. This non-economic right is seen as an
emanation or manifestation of his personality, as his 'spiritual child. The interests
protected by this right concern how the artist presents his work to the public, and the
way he preserves his identification with the work. This protectible interest is referred
to as the artist's moral interest, and the specific rights guarding the interest are
called droit moral, or the artist's moral rights.2 As an important consequence, moral
rights maintain for society the opportunity to see the work as the artist intended it,
undistorted and unimproved by the unilateral actions of others.3 The moral right
then safeguards both professional artists who build their future on the integrity and
B.A. Sarah Lawrence College; J.D. 1997 University of Miami School of Law.
This article is dedicated to the memory of my friend and inspiration, Eva Maier.
A person must translate his fieedom into an external sphere in order to exist as Idea. Personality is the first,
still wholly abstract, determination of the absolute and infinite will, and therefore this sphere distinct from
the person, the sphere capable of embodying his freedom, is likewise determined as what is immediately
different and separable from him.
© 1998 Cheryl Swack
1. Robert J. Sherman, International Conference on Comparative Constitutions: Note: The Visual
Artists Rights Act of 1990: American Artists Burned Again, 17 CARDOZO L. REV. 373, 380 n.45 (1995)
(quoting SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF ITERARY AND ARTISTIC
WORKS: 1886-1986 456 (1987)).
2. Id.; see Roberta Rosenthal Kwall, Copyright and the Moral Right: Is an American Marriage
Possible?, 38 VAND. L. REV. 1, 3 n.6 (1985) (Moral right is a literal translation of the French droit
moral. This has caused confusion because the English word moral does not satisfactorily convey the
'intellectual concept' of 'inner meaning' inherent in the French conception of moral. Thus, moral rights
do not refer to our ethical definition of moral, but instead encompass a right that exists in an entity's
ultimate being.); see also 1 STEPHAN P. LADAS, THE INTERNATIONAL PROTECTION OF ARTISTIC AND
LrrERARY PROPERTY § 272 (1938) (suggesting that the German word urheberpersonlichreitsrecht
meaning the right of the author's personality, is a more accurate term than the English moral rights);
Sherman, supra note 1, at 379 (the term author's rights, which describe the [artist's] incorporeal,
personal connection with [his] art, is synonymous with droit moral).
3. Dane S. Ciolino, Moral Rights and Real Obligations: A Property-Law Framework for the
Protection of Author's Moral Rights, 69 TUL. L REv. 935, 958 (1995) (quoting John H. Merryman, The
Refrigerator of Bernard Buffet, 27 HASTINGS LJ. 1023, 1025 n.5 (1976) [hereinafter Merryman 11); id.
at 1041([A]rt is an aspect of our present culture and our history, it helps tell us who we are and where we
came from. To revise, censor, or improve the work of art is to falsify a piece of the culture.).](ViewImageLocal?handle=hein.journals/cjla22&div=24&collection=&method=preview&ext=.png&size=3)
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Safeguarding Artistic Creation and the Cultural Heritage: A Comparison of Droit Moral between France and the United States
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