"Naming opportunities" is the August 2015 JIPLP guest editorial by Molly Stech. This is what she writes:
The term “moral rights” has never squarely captured the important work those rights are meant to secure for authors and artists (collectively “authors”). Moreover, the term casts an uninviting pall on the rights' forthright function. This piece addresses only one of the two moral rights prongs of the Berne Convention's Article 6bis, the right of attribution, and only in an American context. To be sure, the U.S. Visual Artists Rights Act 1990 (VARA) provided both the rights of attribution and integrity to a certain narrow class of artists and artworks, but my goal is to consider the expansion of the right of attribution to authors of all types of copyright works. As Professor Jane Ginsburg recently suggested, “all authors … should enjoy enforceable rights of attribution.” The reasons are many: attribution is economically significant for authors (Hansmann and Santilli); it is substantively separate from authors’ economic rights (2003 WIPO Guide to the Copyright and Related Rights Treaties); and it affects information seekers’ ability to judge the quality of available information (Wilkinson).
As a keen observer of art world goings-on, I've read many arguments for and against art foundations performing authentication functions. Of interest to me is the absent parallel between this debate and the copyright-oriented right of attribution. There are many reasons – not the least of which is the effect on the market value of an authentic Basquiat, for example – why the owner of an artwork and the public should know whether Basquiat painted a certain piece or not. Artworks move among private collections, auction houses, galleries, and museums, and each entity has common and unique reasons for wanting to know exactly who painted a painting. Congress discussed the many unique characteristics of the fine art market when it held hearings before enacting VARA. But so, too, do the art scholar, the restaurant owner, and the graphic designer want to know the author who created works that do not qualify under VARA's short reach. They may want to know, for example, who took a particular photograph of the Cannes red carpet, whether to cite in a dissertation, to hang on a wall or include in a commercial travel brochure (as an aside: I've often wondered how many fair uses cases are litigated largely because an author was denied credit for an underlying work).
Some art collectors base their purchases on the current renown of a particular artist, making artistic brand obsession “no different from consumers’ attitudes to luxury cars and Louis Vuitton handbags”. This line of thinking ushers trade mark law into the fray, about which see Xiyin Tang's excellent article summarizing the trade mark “strain” of moral rights. But as creative works of all kinds (novellas, websites, videos, songs, doodles, blog posts, digital photographs) are stored and shared online, we as a society will be best served by ensuring that the most important piece of metadata about the works – who authored it? – is baked into the work in some safe, retrievable way. As debates about orphan works have blossomed in the past few years, photographers have requested a complementary closer look at the moral right of attribution. The U.S. Copyright Act, since the 1998 Digital Millennium Copyright Act, includes a provision that prohibits the removal or alteration of “copyright management information,” which includes the name of the author of a work. A right of attribution would help in ensuring the author's name attaches to the work in the first place. We are all familiar with conducting online image searches and being served up a dishevelled menu of images, many of which have no obvious provenance (and, even upon research, often do not benefit from a clearly-labelled source). U.S. courts (perhaps especially before VARA's adoption and the 2003 Supreme Court Dastar case) crafted 6bis-oriented decisions using legal theories from unfair competition law, trade mark law, and other bodies of jurisprudence.
During the Register's testimony in April, a congressman signalled his interest in the U.S. Copyright Office undertaking a fresh study on moral rights. Being fortunate enough to have worked there, I know it will do so impartially, intelligently, and openly. As technology morphs and as the world's repertoire of creative works grows, acknowledging creators can only make more and more sense. It benefits authors by dignifying them as the works’ creators; and it benefits the public by helping to provide the essential point of information that one needs to intelligently curate, share, and commercialize creative works: the name of the author.