The term “moral rights” has its origins in the civil law and is a translation of the French le droit moral, which is meant to capture those rights of a spiritual, non-economic and personal nature. The rights spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality, as well as the integrity of the work, should therefore be protected and preserved. See Ralph E. Lerner & Judith Bresler, Art Law 417 (1989) (Art Law). Because they are personal to the artist, moral rights exist independently of an artist’s copyright in his or her work. See, e.g., 2 Nimmer on Copyright 8D-4 & n. 2 (1994) (Nimmer).
While the rubric of moral rights encompasses many varieties of rights, two are protected in nearly every jurisdiction recognizing their existence: attribution and integrity. See Art Law at 420. The right of attribution generally consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the author’s work from being attributed to someone else, and to prevent the use of the author’s name on works created by others, including distorted editions of the author’s original work. See, e.g., id. at 419-20; Nimmer at 8D-5. The right of integrity allows the author to prevent any deforming or mutilating changes to his work, even after title in the work has been transferred. See, e.g., Art Law at 420.
In some jurisdictions the integrity right also protects artwork from destruction. Whether or not a work of art is protected from destruction represents a fundamentally different perception of the purpose of moral rights. If integrity is meant to stress the public interest in preserving a nation’s culture, destruction is prohibited; if the right is meant to emphasize the author’s personality, destruction is seen as less harmful than the 82*82 continued display of deformed or mutilated work that misrepresents the artist and destruction may proceed. See Art Law at 421; see also 2 William F. Patry, Copyright Law and Practice 1044 n. 128 (1994) (Copyright Law) (noting the different models but suggesting that “destruction of a work shows the utmost contempt for the artist’s honor or reputation”).
Although moral rights are well established in the civil law, they are of recent vintage in American jurisprudence. Federal and state courts typically recognized the existence of such rights in other nations, but rejected artists’ attempts to inject them into U.S. law. See, e.g., Vargas v. Esquire, Inc., 164 F.2d 522, 526 (7th Cir.1947); Crimi v. Rutgers Presbyterian Church, 194 Misc. 570, 573-76 (N.Y.Sup.Ct.1949). Nonetheless, American courts have in varying degrees acknowledged the idea of moral rights, cloaking the concept in the guise of other legal theories, such as copyright, unfair competition, invasion of privacy, defamation, and breach of contract. See Nimmer at 8D-10; Art Law at 423.
In the landmark case of Gilliam v. American Broadcasting Companies, Inc., 538 F.2d 14 (2d Cir.1976), we relied on copyright law and unfair competition principles to safeguard the integrity rights of the “Monty Python” group, noting that although the law “seeks to vindicate the economic, rather than the personal rights of authors … the economic incentive for artistic … creation … cannot be reconciled with the inability of artists to obtain relief for mutilation or misrepresentation of their work to the public on which the artists are financially dependent.” Id. at 24. Because decisions protecting artists rights are often “clothed in terms of proprietary right in one’s creation,” we continued, “they also properly vindicate the author’s personal right to prevent the presentation of his work to the public in a distorted form.” Id.
Artists fared better in state legislatures than they generally had in courts. California was the first to take up the task of protecting artists with the passage in 1979 of the California Art Preservation Act, Cal.Civ.Code § 987 et seq. (West 1982 & Supp.1995), followed in 1983 by New York’s enactment of the Artist’s Authorship Rights Act, N.Y.Arts & Cult. Aff. Law § 14.03 (McKinney Supp. 1995). Nine other states have also passed moral rights statutes, generally following either the California or New York models. See generally Art Law at 430-35; id. at 301-09 (Supp.1992) (describing the different states’ laws).
Although bills protecting artists’ moral rights had first been introduced in Congress in 1979, they had drawn little support. See Copyright Law at 1018 n. 1. The issue of federal protection of moral rights was a prominent hurdle in the debate over whether the United States should join the Berne Convention, the international agreement protecting literary and artistic works. Article 6bis of the Berne Convention protects attribution and integrity, stating in relevant part:
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.
Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S.Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986).
The Berne Convention’s protection of moral rights posed a significant difficulty for U.S. adherence. See Copyright Law at 1022 (“The obligation of the United States to provide droit moral … was the single most contentious issue surrounding Berne adherence.”); Nimmer at 8D-15 (“During the debate over [the Berne Convention Implementation Act], Congress faced an avalanche of opposition to moral rights, including denunciations of moral rights by some of the bill’s most vociferous advocates.”); H.R.Rep. No. 514, 101st Cong., 2d Sess. 7 (1990), reprinted in 1990 U.S.C.C.A.N. 6915, 6917 (“After almost 100 years of debate, the United States joined the Berne Convention…. [C]onsensus over United States adherence was slow to develop in large part because of debate over the requirements of Article 6bis.“).
83*83 Congress passed the Berne Convention Implementation Act of 1988, Pub.L. No. 100-568, 102 Stat. 2853 (1988), and side-stepped the difficult question of protecting moral rights. It declared that the Berne Convention is not self-executing, existing law satisfied the United States’ obligations in adhering to the Convention, its provisions are not enforceable through any action brought pursuant to the Convention itself, and neither adherence to the Convention nor the implementing legislation expands or reduces any rights under federal, state, or common law to claim authorship of a work or to object to any distortion, mutilation, or other modification of a work. See id. §§ 2, 3; see also S.Rep. No. 352, 100th Cong., 2d Sess. 9-10 (1988), reprinted in 1988 U.S.C.C.A.N. 3706, 3714-15.
Two years later Congress enacted the Visual Artists Rights Act of 1990 (VARA or Act), Pub.L. No. 101-650 (tit. VI), 104 Stat. 5089, 5128-33 (1990). Construing this Act constitutes the subject of the present appeal. The Act
protects both the reputations of certain visual artists and the works of art they create. It provides these artists with the rights of “attribution” and “integrity.” …
These rights are analogous to those protected by Article 6bis of the Berne Convention, which are commonly known as “moral rights.” The theory of moral rights is that they result in a climate of artistic worth and honor that encourages the author in the arduous act of creation.
H.R.Rep. No. 514 at 5 (internal quote omitted). The Act brings to fruition Emerson’s insightful observation.
Its principal provisions afford protection only to authors of works of visual art — a narrow class of art defined to include paintings, drawings, prints, sculptures, or photographs produced for exhibition purposes, existing in a single copy or limited edition of 200 copies or fewer. 17 U.S.C. § 101 (Supp. III 1991). With numerous exceptions, VARA grants three rights: the right of attribution, the right of integrity and, in the case of works of visual art of “recognized stature,” the right to prevent destruction. 17 U.S.C. § 106A (Supp. III 1991). For works created on or after June 1, 1991 — the effective date of the Act — the rights provided for endure for the life of the author or, in the case of a joint work, the life of the last surviving author. The rights cannot be transferred, but may be waived by a writing signed by the author. Copyright registration is not required to bring an action for infringement of the rights granted under VARA, or to secure statutory damages and attorney’s fees. 17 U.S.C. §§ 411, 412 (1988 & Supp. III 1991). All remedies available under copyright law, other than criminal remedies, are available in an action for infringement of moral rights. 17 U.S.C. § 506 (1988 & Supp. III 1991). With this historical background in hand, we pass to the merits of the present litigation.