Artist Moral Rights and Works Attached to Buildings
American moral rights are narrower than the phrase suggests. They attach only to a defined class of visual works, they belong to the artist personally, and the sharpest disputes arise when a building owner wants a wall back.
The rule in short
Section 106A gives the author of a work of visual art the right to claim authorship, to prevent the use of the author's name on a distorted version, to prevent intentional distortion or mutilation prejudicial to honor or reputation, and to prevent the destruction of a work of recognized stature. The rights belong to the author regardless of who owns the object, cannot be transferred, and may be waived only by a signed writing identifying the work and the uses to which the waiver applies.
The United States came to moral rights late and took a narrow version. The statute protects a defined class of visual works, gives the author two rights that do not depend on owning the object, and then withdraws them in a series of exceptions that decide most disputes before the merits are reached.
Which works qualify
The rights attach only to a work of visual art, and the definition is restrictive. A painting, drawing, print or sculpture qualifies if it exists in a single copy or in a limited edition of two hundred or fewer, signed and consecutively numbered by the author. A photograph qualifies only if it was produced for exhibition purposes and meets the same edition limits.
The exclusions do more work than the inclusions. Posters, maps, charts, technical drawings, models, applied art, motion pictures, books and periodicals, merchandising and packaging material, and anything made for hire are all outside the definition. So is any work not otherwise subject to copyright protection. A great deal of commissioned and commercial art therefore never reaches the question of what the rights would have protected.
Attribution and integrity
The attribution right permits an author to claim authorship of a work, to prevent the use of the author's name as the author of a work not created by that author, and to prevent the use of the author's name on a work that has been distorted, mutilated or modified in a way prejudicial to honor or reputation.
The integrity right permits the author to prevent an intentional distortion, mutilation or other modification that would be prejudicial to honor or reputation, and to prevent the destruction of a work of recognized stature where the destruction is intentional or grossly negligent. Both rights belong to the author personally and persist after the physical object has been sold, which is the feature owners most often fail to anticipate.
Modification resulting from the passage of time or the inherent nature of the materials is not a distortion. Neither is modification caused by conservation, or by the manner of public presentation such as lighting and placement, unless the harm was caused by gross negligence. An artist whose materials were chosen for impermanence has little recourse when they behave as chosen.
The undefined phrase at the center of destruction claims
Only works of recognized stature are protected against destruction, and the statute does not say what that means. Courts have generally required two showings: that the work has merit or stature, and that the stature is recognized by art experts, other members of the artistic community, or a cross-section of society. Evidence tends to be expert testimony, exhibition and publication history, critical attention and public reception.
Because the test is evidentiary rather than definitional, results vary with the record put before the court. Awards, museum acquisitions and scholarly treatment carry weight; so, in some cases, does sustained popular attention. A finding of willful destruction also opens the door to statutory damages, which is why these cases can produce awards far above the market value of the destroyed work. The evidentiary problem resembles the one described in authentication disputes and why experts became reluctant to opine: the law asks a question that only a contested professional consensus can answer.
Art incorporated into a building
Where a work has been installed in a building, the statute balances the artist's rights against the owner's control of the structure, and the answer turns first on whether the work can be removed without destroying it.
| Situation | What the building owner must do | Effect on the artist's rights |
|---|---|---|
| Work cannot be removed without destruction, and the artist signed a written acknowledgment | Nothing further | The integrity and destruction rights do not apply |
| Work cannot be removed without destruction, and no acknowledgment exists | Preserve the work or face a claim | The rights apply in full |
| Work can be removed safely; owner makes a diligent good faith attempt to notify without success | Document the attempt | The rights do not apply to the removal |
| Work can be removed safely; notice reaches the artist | Allow the stated period to remove or pay removal costs | Rights apply if the owner proceeds early |
| Work can be removed safely; artist removes it within the period | Permit removal | Title to the copy passes to the artist |
The notice mechanism depends on records. An artist who wants to be reachable years after installation registers an identity and address with the Copyright Office, and a building owner establishing a diligent good faith attempt will point to a search of that register. Neither party can rely on the other remembering.
Waiver, duration and what a claim is worth
The rights may not be transferred, so a bill of sale conveying the object conveys nothing of them. They may be waived, but only by a written instrument signed by the author that specifically identifies the work and the uses to which the waiver applies. A blanket waiver covering unspecified future works does not meet the standard, and a waiver by one joint author binds the others.
For works created after the statute took effect the rights endure for the life of the author. Remedies are the ordinary copyright remedies, including injunctions, actual damages and, where the work was registered as the statute requires for that election, statutory damages. Because the rights are personal, they sit awkwardly beside the market arrangements artists actually use, such as the consignment terms that govern a gallery relationship and the contractual resale provisions discussed in resale royalties and why the United States has none. Institutions holding covered works also weigh them when disposing of collection objects, alongside the constraints set out in the rules on deaccessioning.
Points to carry away
- The rights attach only to a work of visual art as defined by statute, which excludes works made for hire, applied art and most reproductions.
- Attribution and integrity rights stay with the author even after the physical object is sold.
- The right against destruction protects only works of recognized stature, a phrase the statute does not define.
- Rights cannot be transferred but can be waived by a written instrument signed by the author that identifies the work and the uses covered.
- Where a work is incorporated into a building and can be removed safely, the owner must attempt notice and allow the artist an opportunity to remove it.
- Modification caused by the passage of time, the inherent nature of the materials, or ordinary conservation is not a violation.
Questions readers ask
Do these rights survive the artist?
For works created after the statute took effect, the rights last for the life of the author and end at death; in a joint work they run until the death of the last surviving author. That is shorter than the copyright term, and it means an estate generally cannot bring a claim about a work altered after the artist has died. Works created earlier, where title had not been transferred by the operative date, follow a different rule tied to the copyright term, which is why the creation and transfer history of an older work has to be established first.
Does the owner of a painting commit a violation by putting it in storage?
No. The statute reaches distortion, mutilation, modification and, for works of recognized stature, destruction. It does not require an owner to display a work, to display it in any particular way, or to keep it accessible. Choices about lighting, placement and public presentation are expressly outside the integrity right unless the resulting harm is caused by gross negligence. An artist who wants control over exhibition has to obtain it by contract at the time of sale.
Can a commissioning agreement eliminate these rights in advance?
Two routes exist and they work differently. If the work is made for hire, it falls outside the statutory definition altogether and no rights arise. If it is not made for hire, the rights arise and can be waived only by a written instrument signed by the author that specifically identifies the work and the uses to which the waiver applies; a general waiver of all future works is ineffective. Commissioning parties who care about later alteration address both points in the agreement.
Sources
- Cornell Legal Information Institute — 17 U.S.C. 106A, Rights of Certain Authors to Attribution and IntegrityThe operative grant of attribution and integrity rights, its exclusions, duration and waiver rule.
- Cornell Legal Information Institute — 17 U.S.C. 101, DefinitionsDefines work of visual art, including the edition limits and the categories excluded.
- Cornell Legal Information Institute — 17 U.S.C. 113, Scope of Exclusive Rights in Pictorial, Graphic and Sculptural WorksSubsection (d) governs works incorporated into buildings and the notice and removal procedure.
- U.S. Copyright Office — Title 17, Chapter 1The agency's own text of the chapter containing sections 101, 106A and 113.
- U.S. Copyright Office — Authors, Attribution, and Integrity: Examining Moral Rights in the United StatesThe Office's study of how moral rights operate under existing American law.
- eCFR — 37 CFR 201.25, Visual Arts RegistryThe register on which artists and building owners record identity and address for removal notices.
- Cornell Legal Information Institute — 17 U.S.C. 504, Remedies for InfringementThe damages provisions applied to violations of section 106A, including statutory damages.
Justice Partners Journal is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
