ESSAY


THE RIGHT OF AUTHORSHIP  

The French 1978 decree defines the competence of the Musée Rodin in article 1, as quoted already in Part I: 

Original editions in bronze. These are executed from models in terra cotta or plaster realized by Rodin and under the direct control of the Museum, acting as the holder of the artist´s right of authorship. 

Now what does this mean: "acting as the holder of the artist´s right of authorship. ". Judging from my experience as an artist an text author, authorship is a quality bound to a person and can not be transferred or inherited at all – unlike copyright.  

This notion is confirmed, for example, by the 1957 Copyright Act of India, Chapter XII, Article 57, on the author´s special right:  

(1) Independently of the author´s copyright, and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right— a) to claim the authorship of the work (..)

(2) The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representatives of the author. 

[From: www.naukri.com/lls/copyright/section12.htm

This means, the legal representatives of the author may obtain the copyright, but can not claim authorship. 

The following example illustrates what happens when "authorship" and "copyright" are mixed up, like they were in the USA : 

In 1989, the U.S. signed the Berne Treaty. Through this action, the U.S. guaranteed the highest level of protection for its copyrighted works in the world market. While copyright-holders now reap the benefits of adherence to the Berne Treaty, American film artists are still unable to do so.

Under present U.S.law, the owner of copyright is considered to be the author, even though the owner may be a financing or a corporate entity and not an artistic author. The failure of the law to distinguish between "authorship" and "ownership" has resulted in the legal elevation of economic principles over personal rights and has set a stage whereon property (economic) considerations completely outweigh artistic considerations (the reputation of the artist and the work itself). 

By virtue of this interchangeability between "authorship" and "ownership", "authorship" can be sold along with copyright. Therefore, the accredited authors of a work can change every time a work's copyright is sold, thus throwing into doubt its authenticity. 

Against this backdrop, film artists are vigorously challenging the notion that moral rights are embedded in U.S. law in adherence to Berne, because there is no protection in U.S. law for individual true authors who "work for hire." 

In 1990, Congress partially recognized a deficiency in U.S. adherence to Berne by passing the Visual Artists Rights Act, which grants moral rights to painters, sculptors and certain still photographers -- but excludes from its definition of "visual works" those works made for hire. By this device, motion pictures are excluded from the Act's definition of "visual works." 

[From: Artist´s Right Foundation Website http://artistsrights.org/legal/legalmain.htm]

We see the 1990 VARA partly repaired this deficiency in American law and now guarantees painters and sculptors the exclusive right of attribution, that means of signing their works and presenting themselves as the author, to be distinguished from the copyright: 

If the rights of attribution and integrity apply to a work, they are given exclusively to the artist who created the work. Only the artist can assert moral rights, not collectors, gallery owners, dealers, or museums. (…) 

The right of attribution gives an artist the right: 
(1) to claim or disclaim authorship of a created work; 
(2) to prevent the use of his or her name in association with a work that he or she did not create; and 
(3) to prevent the use of his or her name as the artist of a work that has been modified in such a manner that would be prejudicial to the artist's honor or reputation. (…) 

The right of integrity gives artists the right: 
(1) to prevent intentional distortion, mutilation, or other modification of their work that is pre-judicial to their honor and reputation; and 
(2) to prevent any intentional or grossly negligent destruction of a work of recognized stature.

[From: http://aic.stanford.edu/jaic/articles/jaic36-02-006_4.html]

 

 

 

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