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Journal of Intellectual Property Law

Abstract

Creative destruction uses destruction to create new meaning in a work. This process is best explained as a Phoenix, rising from the ashes of destruction. The term “Art” encompasses infinite meanings and in this Note, I argue that destruction constitutes one of them. Resulting from this connection, I argue that destruction, specifically Creative Destruction, must not be hampered by law. In 1990, Congress promulgated the Visual Artist Rights Act, 17 U.S.C.A. 106A. This legislation formally introduced the moral rights of attribution and integrity into United States legal doctrine. Specifically, the right of integrity grants an artist the right to prevent the mutilation or destruction of their work that proves harmful to their reputation.

I argue that the doctrine of moral rights is unique to Europe and not readily supplanted into United States legal doctrine, and that integrity has no foundation in United States legal doctrine. Most importantly, I bring forth Constitutional challenges to the viability of integrity. This first consists of the statute’s usurpation of due process. The statute fails to require registration as a condition of action. When applied to Creative Destruction, this can produce the violation of the subsequent owner’s due process right to notice under the 5th amendment.

A second challenge is whether Congress exceeded their scope of power under the Copyright Clause in enacting VARA. The text of the Clause specifically grants Congress the power to “promote the progress of science and usable arts.” This is generally understood as limiting Congress’ legislative power to not burden creativity. As a result, in recognizing Creative Destruction as a protected instance of creativity, the text explicitly burdens such creative ability through the right of integrity. In promulgating a right of integrity, Congress has not promoted creativity at all but instead has prohibited it.

A final challenge is to the statute’s sustainability under the First Amendment. Similar to my scope argument, in protecting Creative Destruction the right of integrity unduly burdens an artist’s freedom of expression. This discussion undertakes an interest balancing analysis that concludes Congress failed to adequately balance the respective interests at play here. The subsequent owner-artist has an interest in the absolute ownership of their work. Further, they have an interest in their freedom of expression. Given the language of the statute, it is fair to say that Congress did not take into account these interests.

I conclude by proposing a Creative Destruction exception to VARA. Destruction is a valid part of the creative cycle and should not be outweighed by an artist’s personal feelings. The moral right of integrity places an artist above everyone else, especially the consumer. This practice is opposite to the United States’ interest in consumer protection and creates an off-balance power dynamic between an artist and the purchaser of such work. Further, at its core creativity must be subjected to a minimal amount of restriction. Integrity constitutes a total prohibition on destruction. As a result, an artist who wishes to deconstruct and reimagine a work of art has the potential for legal liability and thus the hampering of expression.

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