Pragmatism, Economics, and the Droit Moral

Abstract

Under the continental doctrine of droit moral, or moral right, the creator of a work of authorship (such as a literary work, a painting, or a film) is viewed as having an inalienable right to prevent others from, among other things, modifying, distorting, or otherwise interfering with the integrity of that work-even after the creator alienates both the physical object in which the work is embodied and its copyright.Over the past two decades, a somewhat weaker version of the doctrine has begun to make inroads into American law as well, culminating in the passage of the Visual Artists Rights Act of 1990.In this Article, Professor Cotter examines the doctrine of moral right through the lens of philosophical and legal pragmatism.Applying first the insights of pragmatic aesthetic theorists, he considers the implications of the droit moral on "art as experience."Second, he applies economic analysis in an effort to predict the likely consequences of moral rights upon the well-being of artists, patrons, and audiences.He concludes that the weak version of the doctrine adopted in the United States has much to recommend it from both a philosophical and economic perspective, but that the more robust version adopted in France and Germany imposes too substantial a risk of stifling artistic innovation and experimentation.I.

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