Honor and Destruction: The Conflicted Object in Moral Rights Law

In 1990, the Copyright Act was amended to name visual artists, alone among protected authors, possessors of moral rights, a set of non-economic intellectual property rights originating in nineteenth-century Europe. Although enhancing authors\u27 rights in a user-oriented system was a novel undertaking, it was rendered further anomalous by the statute\u27s designated class, given copyright\u27s longstanding alliance with text. And although moral rights epitomize the legacy of the Romantic author as a cultural trope embedded in the law, American culture offered little to support or explain the apparent privileging of visual artists over other authors. What, if not a legal or cultural disposition toward visual artists, precipitated the enactment of a moral rights statute like the Visual Artists Rights Act of 1990 (\u27\u27VARA )? This Article demonstrates that the answer is less related to authorship concerns than would reasonably be surmised from a doctrine premised on the theory that a creative work embodies the author\u27s honor, personhood, and even soul

Analogical Reasoning

This chapter from our book Legal Writing in Context aims to demystify analogical reasoning for law students

Ex Post Modernism: How the First Amendment Framed Nonrepresentational Art

In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the Supreme Court asserted that Jackson Pollock’s paintings are “unquestionably shielded” under the First Amendment. Previously, visual art’s main doctrinal residence stood in obscenity law’s backyard, as a vague definitional tautology: art constitutes speech so long as it is not obscene, and speech is not obscene if it is art. The Hurley Court offered no elaboration as to the “drip” painting’s constitutional relevance, but, even as mere illustrative dictum, the declaration received independent attention on two levels. First, the remark reified a longstanding assumption that visual art was “speech,” offering a specific example outside the realm of obscenity law. Second, the reference to Jackson Pollock’s painting did not merely confer robust protection to art, but definitively extended its embrace to apolitical, nonlinguistic imagery