On 10/7/98, Sheldon W. Halpern <shalpern[_at_]pop.service.ohio-state.edu> wrote:
>
> Section 106A(d) specifically limits the rights to the life of the
> author, with respect to works created on or after the effective date, so
> that the rights are not descendible; for works created before that date,
> whose title had not been transferred, the term generally is coextensive
> with that of copyrights (i.,e., generally, life of author plus 50 years)
> so that as to these latter works, the rights would appear to descend to
> the heirs of a deceased artist. The rights are not transferable (Sec.
> 106A(e).
It appears that the majority in this case (I was the lone dissenter, speculating that the statute didn't mean what it said, or that at least there were some linguistic conflicts) is probably correct.
A law review article provided some help in explaining the connection between the Visual Artists Rights Act (VARA) and the 1986 Berne Convention for the Protection of Literary and Artistic Works. Article 6bis of the Berne Convention addressed some of the issues emnbodied in VARA. Here is what the law review article has to say (this is a big chunk, but the footnotes were really interesting):
"A major departure from article 6bis is the Act's limitation of the term of moral rights protection to the life of the author. n121 Paragraph two of article 6bis provides that moral rights should last after the author's death at least until the expiration of the economic rights. n122 In general, the term of copyright in the United States Copyright Act is the life of the author plus fifty years. n123 Although paragraph two of article 6bis contains an "escape clause" that permits countries to provide that certain moral rights expire at the death of the author n124 if the country's legislation at the time of the country's accession does not provide that all moral rights protection continues after the death of the author, this clause does not justify post-Berne Convention accession legislation for a shorter term. According to the official comment, this clause was intended to allow countries in the Anglo-American legal tradition to continue to depend upon common law doctrines, such as defamation, to protect moral rights even though they ordinarily expire at death. n125 The Act, by contrast, is a post-accession legislative enactment to conform United States law to the requirements of article 6bis of the Berne Convention. The Kennedy and Kastenmeier bills provided the copyright term for moral rights, but this was changed at the suggestion of one of the members of the Senate Judiciary Committee.
n121. Visual Artists Rights Act of 1990, Pub. L. No. 101-650, sec. 603(a), sec. 106A(d)(1) (Dec. 1, 1990) (to be codified at 17 U.S.C. sec. 106A(d)(1)). The term of moral rights is the same as the copyright term for works created before the effective date of the Act, if the works have not been transferred from the author. Id. sec. 603(a), sec. 106A(d)(2) (to be codified at 17 U.S.C. sec. 106A(d)(2)). In the case of joint authors, the moral rights last for the life of the last surviving author. Id. sec. 603(a), sec. 106A(d)(3) (to be codified at 17 U.S.C. sec. 106A(d)(3)). All moral rights terms run to the end of the calendar year. Id. sec. 603(a), sec. 106A(d)(4) (to be codified at 17 U.S.C. sec. 106A(d)(4)).
n122. "The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed." Berne Convention, supra note 1, art. 6bis, para. 2, at 43.
n123. 17 U.S.C. sec. 302(a) (1988). There are special terms for anonymous works, pseudonymous works, and works for hire. Id. sec. 302(c).
n124. This "escape clause" provides:
However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
Berne Convention, supra note 1, art. 6bis, para. 2, at 43.
n125. The official position is reflected in comment 6bis. 10 which states:
This provision takes account of the practice of member countries with an Anglo-Saxon legal tradition, according to which the protection of the moral right is mainly a matter for the common law, and, in particular the law of defamation. This does not normally permit the bringing of an action after the death of the person defamed.
Berne Convention, supra note 1, art. 6bis, para. 1, comment 6bis. 10, at 44.
n126. Telephone interview with Kathleen Kruse, Legislative Assistant to Sen. Edward Kennedy (Jan. 22, 1991)."
Edward J. Damich, The Visual Artists Rights Act Of 1990: Toward A Federal System Of Moral Rights Protection For Visual Art, 39 Cath. U.L. Rev. 945, 969-970 (1990).
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