Monday, May 29, 2023

How to Read a Copyright Statute

Ok folks, here are two examples of legal writing: a good one and a bad one.

For the first example (the good one), we have Donn Zaretsky’s article for The Art Newspaper, This Copyright Confusion Ought to End, hot off the press. Donn makes what to most would be a commonsensical observation: when wondering what the law states, read the text. Referencing two recent copyright-VARA cases, Philips v. Pembroke and Mass MoCA v. Christoph Büchel, Donn wonders what it is about the Visual Artists Rights Act that has layfolk and federal judges making erroneous interpretations.

[E]ach of these cases involves a departure from the plain language of the statute. The definition of “work” in the Copyright Act—and therefore Vara—clearly includes unfinished works. There is no distinction in the language of the statute between site-specific and non-site-specific works. There is a clear exception under the law for conservation. Art may be mysterious, but Vara is not. Stick to the text.

How can we not agree with Donn? Or George Conway’s similar argument in the Büchel case. Well, there’s always one, right?

Enter the bad example, a law review article by Elizabeth Bock of the University of Michigan Law School. Bock takes a play out of the “what would life be like on Neptune” playbook, otherwise known as the “public policy” argument, and attempts, in a well-worn and tired manner, to convince the reader that the Visual Artists Rights Act should say what she proposes rather than what it actually– and clearly– states. Her thesis:

This Note proposes instead that these [moral rights] statutory protections should vest when an artist determines that his work is complete and presents it to the public. This standard is more consistent with the history of moral rights. Additionally, public access is necessary to justify a treatment of art different from that of other types of property, and it is a more essential component of moral rights than an artist’s feelings of connection to his work. Finally, the legislative intent behind the Visual Artists Rights Act and the reasoning in previous judicial decisions are more accurately reflected by a public disclosure standard. Utilizing “creation” as a vesting point for moral rights is not supported by the history of the Visual Artists Rights Act and will result in uncertainty and inconsistency in future decisions.

So there you have it. What the statute should say, history, and legislative intent should guide our reading of the Visual Artists Rights Act.

You be the judge. Zaretsky’s here. Bock’s here. Play ball!


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