How We Lost Our Moral Rights and the Door Closed on Non-Economic Values in Copyright

When Congress passed the Visual Artists Rights Act ( VARA ) in 1990, it introduced into our federal law concepts that had been shut out of Anglo-American intellectual property law for over 200 years. VARA gives visual artists the right of attribution, i.e., the right to have their work properly attributed to them, and the right of integrity, i.e., the right to not have their work altered or destroyed without their permission. While others have studied the history of Anglo-American copyright from the advent of the printing press, they make few references to the type of rights granted by VARA. To fill that gap, this article retraces the history of Anglo-American intellectual property law, analyzing how VARA rights fit into it. In particular, while analyzing the key Eighteenth Century English statutes and cases, this article pinpoints the moment in the evolution of Anglo-American law when the English judges effectively lopped off the branch of intellectual property law that soon after bloomed in France into the droit moral or moral rights. The timing of this legal development (and concurrent political developments) ensured that the intellectual property laws of the new United States would contain the English emphasis on economic protection and ignore the protection for the creative process that developed soon after in France. Understanding the twists and turns of this history may help us be more vigilant to protect moral rights development as our intellectual property law evolves to once again accommodate new technologies