Moral Rights of the Artist (when Present): an Updated US Perspective

This article is an extract from The Art Law Review, Edition 3. Click here for the full guide.

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Morality and all the incidents of morality are essential;as justice to the citizens, and personal liberty.²

From New York to California, from conventional and digital native artwork to that generated by artificial intelligence (AI), moral rights of creators (and who they are) have remained at the avant-garde of art law disputes and considerations, rivalled only by Russia's immoral invasion of Ukraine, which is devastating to life, culture and heritage.³ While the promise of solving the resale royalty concerns of US artists and artists' rights advocates promised by the rise of non-fungible token (NFT)⁴ marketplaces remained little more than a possibility (see below), the new leitmotiv⁵ was the presence or absence of legal rights in computer-generated works (i.e., art created by AI).⁶

On 14 February 2022, the US Copyright Office Review Board issued second and final rulings refusing to register copyright in a work entitled A Recent Entrance to Paradise because the application claimed that the work was made by 'creative machine' and not the machine-maker, Steven Thaler. (Thaler stated on the application that the work 'was autonomously created by a computer algorithm running on a machine'.)⁷ In brief: no human authorship, no copyright registration, [therefore] no infringement of [Thaler's] rights.⁸ This clear (if rather disappointing for computers everywhere) reasoning followed the 2021 Copyright Office opinion on works that lack human authorship and the Copyright Office's refusal to register 'works produced by nature, animals, or plants' for copyright law protection.⁹

Notably, the curiosity or innovation offered by AI image generators such as the DALL-E, Disco Diffusion and Stable Diffusion models have come under criticism from artists, including digital artists such as Greg Rutkowski, for using existing art to train data sets to create new works.¹⁰

In the United States, artists' rights, historically synonymous with economic rights, were typically protected under copyright law. Increasingly, moral rights of artists, those of 'a spiritual, non-economic and personal nature that exist independently of an artist's copyright in' their work have been coming to the fore, both on the federal and state level.¹¹ This chapter provides a review of cases arguing that moral rights 'spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work' should be protected.¹²

I Defining and codifying moral rights

Moral rights, or droit moral (having originated in France), describe rights of creators in their artistic work that are not necessarily pecuniary, yet still integral to and arise from the idea that an artist's very being is included in the work that they create. Recognition and evolution of visual artists' rights in the United States have been slow to develop, and the scope of moral rights enacted in the United States is limited.

Typically, moral rights are neither alienable or waivable; they last for the duration of an artist's lifetime and can survive for the benefit and discretion of an artist's estate even after the original work is finished or changes ownership through the stream of public commerce.¹³ The basic moral rights are as follows:

1. right of attribution or authorship, which entitles the artist to:
   • be recognised by name for their work or permit the work to be published anonymously;
   • prevent a wrong person being named as the author of their work;
   • prevent having their name be associated with a work that they did not create;
   • decline having their name be associated with a work that has been modified or distorted in such a way as having the authorship remain with the work is prejudicial to the artist; and
   • remove their name from the work in cases of mutilation or the artist's belief that the work is no longer true to its original creation;
2. right of integrity, which prevents tampering or modifying the artwork without the artist's consent even after ownership in the artwork transfers;
3. right of disclosure, which concerns the artist's reputation and provides that the artist has discretion to decide when and how their work can be made public; and
4. resale royalty rights, which is a semi-economic right assuring that an artist may continue to benefit financially from commercial appreciation of their work in the secondary market by receiving a percentage of the sale proceeds.

These rights are enumerated in the Berne Convention for the Protection of Literary and Artistic Works (the Convention) under Articles 6 bis¹⁴ and 14 ter.¹⁵ While the US is a signatory to the Convention,¹⁶ according to the US Berne Convention Implementation Act of 1988, the Convention's acts and protocols are not self-executing under the US Constitution, and they must be implemented through US legislation.

In 1990, parts of Article 6 bis were implemented in the US when Congress amended the Copyright Law and enacted the Visual Artists Rights Act (VARA).¹⁷ VARA recognises some of the moral rights, namely the right of attribution,¹⁸ the right of integrity¹⁹ and, in the case of works of visual art of 'recognized stature',²⁰ the right to prevent destruction.²¹ Some recent decisions have ranged from a California ruling denying protection of a mural on a wall of a bar²² to a victory for artists in New York seeking protection of art on the walls in a jail.²³

Limitations of VARA

VARA differs from Article 6 bis of the Convention by offering a limited coverage that expires on the year of the artist's death.²⁴ Additionally, while artists' rights cannot be transferred under VARA, they may be waived through a written form signed by the author.²⁵ Further, VARA does not offer economic benefits suggested under Article 14 ter of the Convention concerning resale royalty rights for fine artists when their works are sold in the secondary market.²⁶ Under VARA, moral rights protection, if any, only applies to 'works of visual art', such as 'a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author'.²⁷ Books, photographs and other copyrightable content are not included in the working definition of 'a work of visual art'.²⁸

II VARA as applied through case law

The following selection of notable cases surveys the treatment of artists' rights in the US legal system and demonstrates courts' hesitance to find in favour of artists whose works were under threat. Too frequently courts have ruled that VARA did not protect site-specific works,²⁹ thus favouring the interest of real estate owners,³⁰ municipal administrations³¹ and other commercial interests.³² Inherent throughout the sequence is the tension between the rights VARA creates and the 'conventional notions of property rights'.³³

Recently, arguments have been made that where VARA fails to protect site-specific works, state law may be available to protect moral rights of artists whose works are subject to demolition or mutilation.³⁴

i Ushering in VARA with Serra v. US General Services Administration

In 1986, renowned US sculptor Richard Serra sought legal protection to prevent his artwork, Tilted Arc (1981), a large public sculpture that was owned by the US General Services Administration (GSA), from removal and relocation from the Federal Plaza in Manhattan, New York.³⁵ Serra created the sculpture on commission and sold it to GSA. Subsequently, GSA received hundreds of complaints from members of the general public, who claimed that the sculpture was an eyesore, hindered pedestrian traffic and was susceptible to vandalism.³⁶

In 1988, just two years before VARA was enacted, the Second Circuit ruled against Serra's arguments for preservation of his site-specific art on the basis that he:

relinquished his own speech rights in the sculpture when he voluntarily sold it to GSA; if he wished to retain some degree of control as to the duration and location of the display of his work, he had the opportunity to bargain for such rights in making the contract for sale of his work.³⁷

In deciding against the artist, the court concluded that the artist was seeking a new rule from the judiciary, something reserved for Congress to regulate. The court opined:

We recognize that Courts considering . . . challenges by artists to governmental decisions to remove purchased works of art must proceed with some caution, lest a removal ostensibly based on unsuitable physical characteristics of the work or an unfavorable assessment of its aesthetic appeal camouflage an impermissible condemnation of political viewpoint . . . Government can be a significant patron of the arts. Its incentive to fulfill that role must not be dampened by unwarranted restrictions on its freedom to decide what to do with art it has purchased.³⁸

Arriving in the wake of the Serra decision and in response to advocacy efforts for extending artists' rights, Congress created the very rule Serra would have needed to keep Tilted Arc in place: it added VARA as an amendment to the Copyright Act.³⁹

ii Surveying VARA application in Carter v. Helmsley-Spear, Inc

The first important case to test how VARA could protect artists was brought by three professional sculptors: John Carter, John Swing and John Veronis (collectively, 'Jx3'),⁴⁰ who, as plaintiffs, claimed that the defendants (and later, appellees and cross appellants) tried to assert their rights of integrity against a real estate owner and managing agent (the 'defendants') of a commercial building in Queens, New York. Here, the artwork in question was commissioned by the former tenants of the building but it was not sold and all agreed that Jx3 retained copyright in their works. However, when the defendants resumed control of the premises, they forbade the artists from creating further artwork on the premises and informed Jx3 of plans to remove all existing art from the building. At trial, Jx3 obtained a permanent injunction preventing the defendants from removing, modifying or destroying a work of visual art from the building. However, the decision was reversed on appeal.

Despite quoting US poet Ralph Waldo Emerson's praise of indigenous arts in its 1995 opinion ('a country is not truly civilized where the arts, such as they have, are all imported, having no indigenous life'), the court sided with the defendants and allowed for Jx3's 'indigenous art' to be removed. This was either because VARA was 'relatively new'⁴¹ or because it 'did not mandate the preservation of art at all costs and without due regards for the rights of others',⁴² but the Carter court concluded that the piece commissioned from Jx3 was 'made for hire' and thus exempt from protections offered under VARA.⁴³

iii Training ground for VARA in Massachusetts Museum of Contemporary Art Foundation v. Büchel

The bitter dispute between Christoph Büchel, a Swiss visual artist, and the Massachusetts Museum of Contemporary Art (Mass MoCA or the Museum)⁴⁴ offered a new test and an expanded application of VARA.⁴⁵ Characterised by the Boston Globe as 'the ultimate how-not-to guide in the complicated world of installation art',⁴⁶ it concerned an immense installation, with the working title Training Ground for Democracy, which would display a cinema, a jail, voting booths, a shooting range and other true-to-scale references to visual markers of democracy in everyday life.⁴⁷ The project was not memorialised in writing and, following budgetary and creative disputes, abandoned.⁴⁸ Mass MoCA's continued use of the artist's name in association with the modified work and the treatment and display of the unfinished installation were categorised as infringing on Büchel's moral rights; two court rulings followed.

The lower court sided with the museum and found that as a matter of law, Büchel's moral rights in an unfinished work and his exclusive rights to display it were not violated. On appeal, the First Circuit found that even though the artist did not complete the work, an unfinished installation nevertheless classified as a 'work of art' and the author had the right to integrity in his work.⁴⁹ Hence, the Museum potentially infringed on the artist's rights.

In this decision, the court also addressed damages available to artists whose works were destroyed or whose reputations may have been injured as a result of a VARA violation. The Büchel court ultimately determined that a financial remedy did not arise automatically from the right to prevent offensive conduct. The artists would need to obtain adequate relief for the harms of false attribution by resorting to the damages contemplated under the Copyright Act and other traditional claims.⁵⁰ Büchel's moral rights arguments regarding distortion of his work were rejected because '[a] separate moral right of disclosure (also known as the right of divulgation) . . . is not covered under VARA'.⁵¹ However, the exclusive right to publicly display his copyright-protected work under Section 106 of the Copyright Act survived. The case was remanded and then settled.⁵²

iv Observing the Noland effect

Marc Jancou Fine Art Ltd v. Sotheby's, Inc

Moral rights codified by VARA could serve as a weapon (whether intentionally or not) to jeopardise the economic value of art by a living artist who decides to disavow authorship in their work. Artist Cady Noland, for example, withdrew her authorship from her art on multiple occasions. In 2013, the First Circuit affirmed a holding that an auction house (which had accepted a work on consignment from the defendant-collector) could lawfully withdraw an aluminium print attributed to Noland, Cowboys Milking (1990), with a high estimated value of US$300,000 from its auction after the artist disclaimed authorship in the work and demanded the lot be withdrawn. Noland believed the conservation work done to Cowboys Milking constituted detrimental changes that prejudiced her honour and reputation as an artist; she sought to assert 'her right to prevent the use of her name as its author'.⁵³ Sotheby's consignment agreement with the defendant-collector allowed the auction house to unilaterally withdraw lots from sale, and, when faced with possible VARA claims, Sotheby's exercised its discretion to withdraw the lot.

The collector appealed the court's summary judgment ruling in favour of co-defendants Sotheby's and the artist. On appeal, the court affirmed the lower court's holding, explaining:

[i]n light of Noland's assertion and a report showing that the work had been damaged and restoration had been performed on it, Sotheby's did not breach the contract or its fiduciary duty to the plaintiff by withdrawing the work from auction.⁵⁴

Noland v. Janssen

Ten years later, Noland commenced a moral rights case against a collector and his art dealers, trying to distance herself from yet another refurbished artwork.⁵⁵ The case concerned a wooden sculpture, Log Cabin Façade (1990), which one of the defendants, a German art collector, purchased directly from the artist. In 1995, the collector received the artist's permission to weatherproof the sculpture, to display it outdoors. The sculpture, having been displayed outdoors on the bare ground, began to rot in some areas and the collector replaced the deteriorated portions in 2010.

In June 2020, district judge Paul Oetken ruled that, even after Noland filed a third amended complaint, her allegations that conservation work on Log Cabin Façade violated her moral rights were unconvincing. Noland conceded that her express authorisation to stain the sculpture created a derivative work that fell under the umbrella of VARA. The court found that the artist's permission shifted copyright from the artist to the collector, thus empowering the collector to create the derivative that later underwent conservation.

As Judge Oetken explained, Noland's mere displeasure with the collector's conservation efforts did not afford her protection under VARA:

Noland does not contest that the sculpture did not initially qualify for protection under VARA. Rather, she argues that she authored a derivative work when she permitted Schürmann to stain the sculpture sometime after the effective date of the statute, and that derivative work is entitled to VARA protection. (Dkt. No. 96 at 16-20.) Even if the Court were to make many of the leaps required by Noland's line of reasoning – that the staining created a copyrightable derivative work, that the derivative work qualifies for protection under VARA, and that the marketing of the refurbished stained work violated those rights – Noland still would not prevail on her claim. That is because the author of the derivative work – and therefore the holder of any VARA rights vis-à-vis the staining – would be Schürmann, not Noland.⁵⁶

v Missing resale royalty in Estate of Graham v. Sotheby's Inc

Unlike dozens of other nations, the United States does not recognise the right of visual artists to receive a royalty when their original, tangible works of art are resold. The dissimilar nature of copyright-protected materials (published books, music and visual arts) has created a disparity in the benefits afforded to authors of literary and audio works and visual artists. Whereas writers and musicians are able to capitalise on the volume of copies of their works sold, visual artists typically depend on the sale of the unique work of art at the primary market stage. A copy, or a derivative work, from the original work of art is valued significantly below the value of the original, which can only be legally sold once. Listed as Article 14 bis in the Berne Convention, a version of the model clause concerning resale rights has been incorporated into the legislation of over 70 countries worldwide, thus allowing their visual artists to collect a percentage from each subsequent sale of their work.

Despite multiple efforts to promulgate a national resale royalty right in the United States, the US Congress stopped short of including resale rights in the VARA amendment. The history of efforts to codify a federal resale royalty scheme in the United States is well documented.⁵⁷ The lack of a federal resale royalty scheme effectively excludes US artists and their estates from participating in the financial appreciation of the artist's creative work that has been alienated through sales.⁵⁸

Only one of the US states, California, has successfully passed a law allowing visual artists to partake in the economic appreciation of their works. However, in 2012, the Ninth Circuit found that the California Resale Royalties Act (CRRA)⁵⁹ was unconstitutional, as it violated the dormant Commerce Clause of the US Constitution,⁶⁰ conflicted with and thus violated the first sale doctrine of the Copyright Law⁶¹ and, where any protections survived for California-based transactions, the entire law was pre-empted by Section 301(a) of the later adapted 1976 Copyright Act.⁶²

The underlying consolidated case, Estate of Graham v. Sotheby's,⁶³ was initiated by artists and estates who brought a class action complaint against the leading auctioneers (including eBay, Christie's and Sotheby's) for failure to comply with CRRA, with regard to their own rights and the rights of similarly situated artists, including New York-based artist Chuck Close (born 1940); LA-based artist Laddie John Dill (born 1943); the California-based artist-endowed charitable foundation, the Sam Francis Foundation (established 1995); and the estate⁶⁴ of the US-born Mexican sculptor Robert Graham (1938–2008). Typically severe competitors, the defendants objected vehemently to the validity and constitutionality of CRRA, arguing that it was pre-empted by the first-sale doctrine.⁶⁵ Ironically, the two auction houses that have been the most vocal critics of US efforts to impose a resale royalty scheme⁶⁶ have successfully modified their business practices in the United Kingdom, following the passing of the EU Directive requesting all EU Member States, including the UK (which was an EU Member State at the time), to collect artist resale royalty following public auctions. It is important to note that the concerns over potential market losses by US dealers who feared or predicted that UK art sales would drop following its adoption of the royalty scheme were ultimately unfounded.⁶⁷

In light of the fact that the US does not have a resale royalty right scheme, there is no reciprocity, and US artists are not eligible to collect royalties even in the jurisdictions where this practice is a norm, such as France and the UK, where both Sotheby's and Christie's have auction rooms and conduct sales. Artists and estates of deceased artists who qualify to collect resale royalties include nationals of any European Economic Area countries, such as Belgium. Even during 2020, comparable sales of artworks by the famous Belgian artist Rene Magritte (1898–1967), which took place in quick succession, one in London⁶⁸ and one in the US,⁶⁹ both generated substantial interest and sold in excess of their low estimates, with the main difference being the US sale collected no resale royalty, while the London sale, subject to artist resale rights provisions, had to account for and deliver funds to the Magritte Estate in Belgium.⁷⁰

vi Opportunity for private law

Lack of a federal resale royalty right in the US should not necessarily prevent artists from asking for and negotiating resale royalty provisions in their sales contracts before 'first sale doctrine' takes root. As early as 1971, US-based artist Seth Siegelaub and attorney Robert Projansky put together a model agreement entitled 'Artist's Reserved Rights Transfer and Sale Agreement', designed to empower artists to negotiate their resale rights individually. More recently, in summer 2020, a non-profit organisation called Kadist made public its own model agreement to encourage artists and collectors to agree on setting aside some of the proceeds from the resale of art to be donated to charitable causes. Whether using a model agreement or negotiating independently, US artists may be incorporating resale royalty requirements into the private contracts they enter into with collectors to retain some economic interest in their creations.⁷¹

vii Moral rights recorded in NFTs

On 11 March 2021, a two-week online auction held by Christie's New York, featuring a single lot, an NFT,⁷² created by the digital artist Mike Winkelmann, better known as Beeple,⁷³ closed, ushering in a new era in art trading and collecting.⁷⁴ Not only was the lot consigned directly by the artist, but it set a staggering record price for a digital artwork, which opened at US$100 and closed at US$69,346,250, and introduced new terminology and new possibilities, a fertile land for mining by contemporary artists and collectors. Minted on 16 February 2021 and entitled Everydays: The First 5000 Days, the lot was made up of digital sketches created between 2007 and 2021, most commenting on current events; more importantly, it popularised NFT as a household term. Christie's notified the winning bidders that they could make payments in ether, a specific type of cryptocurrency, with payment accepted from a handful of digital wallets maintained by specific service providers.⁷⁵ Everydays was sold subject to jurisdictionally applicable artists' resale royalties.⁷⁶

The Christie's auction both lent its impressive institutional gravitas to the burgeoning trade in NFTs and simply capitalised on the emerging trend. Earlier, in February 2021, another NFT created by Beeple, this one entitled Crossroads and owned by Pablo Rodriguez-Fraile, a Columbia University MBA and self-proclaimed digital art patron, sold in a secondary market for US$6.6 million at Nifty Gateway.⁷⁷ The new owner of Crossroads is one Delphina Leucas but their exact identity is unknown.⁷⁸ Reportedly, Beeple, a South Carolina-based artist with 1.8 million followers on Instagram (as at February 2021), received 10 per cent from the buyer who accepted conditions of sale set up under Nifty Gateway's terms of services.

It was the Christie's sale that made most headlines and it was swiftly followed by other high-yielding public sales (Sotheby's⁷⁹ and Bonhams),⁸⁰ and encouraged growing interest in NFTs as well as a proliferation of competing online markets (OpenSea, Rarible, SuperRare, Foundation, Myth Market, KnownOrigin, etc.) inviting artists to create and trade in NFTs. Getting a handle on NFTs could assuage economic concerns and protect rights of artists and their heirs, as well as dealers and collectors.

III Moral rights outside of VARA: Made in Heaven

A survey of the limited moral rights of visual artists in the United States shows that artists have endured an uphill battle to protect the integrity of their work. Prior to the passing of VARA, artists had to rely on limited state regulations, private contracts, the unfair competition doctrine, public interest and general copyright protections to preserve the integrity of their work.⁸¹ Even now, New York and other state laws offer additional protections to artists and art collectors.⁸²

Co-authorship of art has been one of the hottest contested topics, where famous artists such as Andy Warhol and Dale Chihuli, and artists who are of more modest fame, such as Friedel Dzubas,⁸³ have hired other artists, collaborated with other artists or used art by others to create their own artwork. In a case decided in 2021, a studio hand was denied authorship or 'joint work' status in pieces created by the glass artist Chihuli.⁸⁴ In 2022, the Supreme Court agreed to hear a copyright infringement dispute about works created by the king of pop art, Andy Warhol. The ongoing dispute over the use of a Prince photograph created by Lynn Goldsmith and used by Andy Warhol for his series of Prince portraits is pending decision, with an expected outcome of narrowing the meaning of the term 'transformative'.⁸⁵

Typically, claims of violations of artists' rights are examined in the context of copyright law and its exceptions. However, notes of moral rights echo in many textbook disputes, even when VARA is not at issue. For example, in the case concerning the US artist Richard Prince's blatant appropriation of artistic photographs created by the French artist Patrick Cariou, the district court found copyright infringement and ordered that the defendants:

shall within ten days of the date of this Order deliver up for impounding, destruction, or other disposition, as plaintiff determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, film negatives, discs, and other articles for making such infringing copies.⁸⁶

On appeal, the decision was reversed and no artwork was destroyed (an act that itself could have triggered a VARA discussion). Still, the lower court's temporary holding with its draconian disposition was reminiscent of the European traditions of destroying infringing and offensive works, such as those deemed forgeries of works protected by moral rights.⁸⁷

In 2022, Jeff Koons was sued by a creator of stage props for using one of his works in a 1988 explicit photo shoot entitled Made in Heaven.⁸⁸ Koons's motion to dismiss the seemingly stale claim was denied but damages for the use of the plaintiff's works were limited to a three-year period prior to litigation.

It is not easy to force an artist to create a work of art or 'deliver on the contract', even when avid collectors are armed with a consignment agreement and are paying to have the works created and delivered on time. Unlike a case decided in the Netherlands, where a court ordered specific performance and threatened a US$10,000/day penalty for an artist's non-performance under a contract with a collector,⁸⁹ courts in the US are reluctant to force artists' creation. Consider, for example, the circumstances when collectors Joel Silver and Steven Tananbaum sued Jeff Koons and the Gagosian Gallery after Koons and the Gallery failed to produce sculptures in accordance with the parties' contract. After the court did not readily grant damages or order specific performance, the Tananbaum claim was settled in 2020⁹⁰ and Silver's claim was discontinued in 2019.⁹¹

Eyeing the implications of VARA

Whereas most VARA claims have been resolved on grounds unrelated to moral rights (Carter) and settled prior to a final disposition on the facts (Büchel ), the 5Pointz case resulted in a clear deference to protecting moral rights.⁹² The most impressive part of this case for this author was the breadth of historical art material submitted to support the plaintiffs' position that aerosol art merited recognition and protection.⁹³ During the trial, artist after artist took the stand to discuss their training and technique, professional trajectory, exhibition history and commercial success.

On 12 February 2018, in a 100-page decision, Judge Block awarded US$150,000 for each mural, collage and installation that was wrongfully and wilfully destroyed because the real estate developer's actions were the 'epitome of wilfulness' and he acted out of 'pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art'.⁹⁴ Forty-nine pages in the decision were its Appendix, almost an exhibition catalogue of street art, listing each plaintiff by name and reproducing at least one of their works of art from the former 'repository of the largest collection of exterior aerosol art . . . in the United States'.⁹⁵

On 5 October 2020, the United States Supreme Court declined to review a landmark decision from the Second Circuit, awarding US$6.75 million, maximum statutory damages, to street artists whose artworks were mutilated and destroyed at an abandoned industrial complex in Long Island, New York, better known as 5Pointz or the Graffiti Mecca.⁹⁶ The dispute over 5Pointz was first heard by the Eastern District of New York on a temporary restraining order (TRO) application, when almost two dozen street artists tried to protect their legal graffiti site from demolition. After the TRO was lifted, frustrated by the 5Pointz artists' failed attempt to enjoin demolition of their Graffiti Mecca and his property, the real estate owner, Gerald Wolkoff, hired a painting crew to whitewash the buildings, destroying dozens of installations and murals, and triggering allegations of violating artists' moral rights to the integrity of their works. On appeal, the Second Circuit agreed that art at 5Pointz gained recognised stature and that the actions of the real estate developer were in violation of VARA.⁹⁷ In the US, moral rights of visual artists are usually narrowly enforced, especially in the context of disputes concerning real estate. However, the rule that whitewashing ephemeral aerosol art on the walls of a derelict factory slated for demolition constitutes a violation of federal law is res judicata.⁹⁸

The 5Pointz outcome, a staggering award for the wilful destruction of 45 works of art in violation of moral rights, is a rare win for the members of the creative community.⁹⁹ It certainly serves as a cautionary tale to other real property owners to think carefully before allowing artists to create on their walls without clearly defined parameters of engagement. Similarly, museum administrators, art collectors and conservators who engage with artists in arm's-length dealings for exhibitions, commissions or collecting purposes need to recognise the possible conflicts of interest and the legal mechanisms that exist to protect artists and their creations.

Looking at the 5Pointz ruling in isolation, US street artists and fine artists alike might feel empowered. Over the course of 2020 and into 2021, courts in different states have seen an increase in cases brought by artists alleging violation of their moral rights pursuant to VARA. Some have been dismissed on federal law grounds but remain pending pursuant to determination of whether and if state laws are able to protect moral rights independently.¹⁰⁰ However, owners or real estate operators are treading carefully when dealing with artists, and they are likely to insist on artists' waiving their VARA rights before ever allowing them to install their works. The conflict between protection of artists' rights and property rights is ongoing.¹⁰¹

The new frontier offered by the emergence of NFT sales and new markets is poised to address the subject of resale royalty if not other moral rights, such as attributions. The unique nature of smart contracts recorded on blockchains seems particularly amenable to reverting a portion of sale to the original creator, as each sale and the ultimate beneficial owner is documented with each new transaction. The percentage due as resale royalty is set by each platform independently and ranges from 1 per cent to 10 per cent. However, there has been little actual evidence reported showing that artists do collect resale royalties during resale (if there is any) of their works on a blockchain. Creation of new NFT marketplaces is keeping the promise of shared economic benefits for artists alive.

Statutorily, moral rights of artists in the United States are poorly protected and narrowly enforced; some seemingly substantive claims are dismissed on procedure failure to state a claim,¹⁰² as res judicata¹⁰³ or on industrial design grounds.¹⁰⁴ As soon as US artists die, the moral rights evaporate altogether. The cavalier rather than chivalrous attitude towards the vision and the will of the artist persists as tastes and emphasis change. Consider, for example, museums deaccessioning art that was once donated directly by an artist.¹⁰⁵ Similarly, consider the trend of covering up or removing the New Deal-Era murals from schools and court houses,¹⁰⁶ which is evocative of the problem posed by Serra's Tilted Arc in the 1980s. Until the US Supreme Court reviews a VARA case, or Congress amends the Copyright Law to include a resale royalty provision, artists and their advocates remain limited by the available moral rights protections, and they have to be creative in using public and private law to protect artists' rights. For digital artists, the ability to enforce some of their moral rights is becoming easier, at least on the screen.

As protest art and street art become mainstream, and AI-generated art attracts more fans, in real life and in the metaverse,¹⁰⁷ moral rights of artists in the United States are still protected by a patchwork of case law, contracts and state and federal regulations. During the 'Some Like it Digital: Meet Me in the Metaverse' webinars hosted by the Center for Art Law in 2022,¹⁰⁸ a guest speaker mentioned that the constitutional law for the metaverse is, or will be, the Copyright Law, for better or worse.