Against Moral Rights

This Article attacks the foundations of moral rights scholarship, law, and theory. The author focuses on the moral right of “integrity,” called “the heart of the moral rights doctrine,” which allows an artist to prevent modification, and in some cases, destruction of his art work. Her argument is that moral rights actually endanger art in the name of protecting it. Indeed, the argument challenges the key assumptions of virtually all moral rights scholarship: that moral rights are crucial for the flourishing of art and that, if anything, we need a more robust moral rights doctrine. But moral rights scholars have overlooked a dramatic problem: The conception of “art” embedded in moral rights law has become obsolete. The author attempts to show that moral rights are premised on the precise conception of “art” that artists have been rebelling against for the last forty years. Moral rights law thus purports to protect art, but does so by enshrining a vision of art that is directly at odds with contemporary artistic practice. As a result, the law is on a collision course with the very art it seeks to defend.