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Digital imagery leaves artists without legal protection

Mark Reutter, Business & Law Editor
217-333-0568; mreutter@uiuc.edu

8/15/2006

CHAMPAIGN, Ill. — The move from physical objects to digital technology in the art world has created a thorny set of legal questions centered on how artists can protect their work from unauthorized use, manipulation or even destruction.

In the 1980s, some artists began to use computer-generated drawings and paintings as a statement against the traditional art market, “presuming that their art would become obsolete as the technology that supported it changed,"” Kristina Mucinskas writes in the current issue of the UI Journal of Law, Technology and Policy. 

But the growing mainstream popularity of art that uses digital imagery and Internet delivery systems does not “fall easily within traditional sale or display models or legal protections," she wrote.

Mucinskas, an editor at the journal, reviews the main legal protection for artists, the Visual Artists Rights Act of 1990 (VARA). These rights are known as moral rights and are relatively new to American law, although they have been part of a long tradition in Europe. Starting with California in 1979, several states enacted legislation that gave artists certain protections against destruction or damage to their art.

The 1990 law includes the right of visual artists to prevent the distortion or misrepresentation of their work and the right to withdraw the work from publication. The artist retains these rights throughout his lifetime, even after the work of art has been sold.

"Digital art generally does not fit neatly within the definition of a work of visual art established by VARA," according to Mucinskas, who argues that Congress should update and clarify the law in response to rapidly changing forms of visual technology.

VARA currently limits legal protection to either a single work of art, such as a sculpture, or a limited edition of fewer than 200 signed copies, such as a painting or still photography.

Visual works published in books and magazines or mass-produced as posters, maps, and charts are not protected by the law, though artists have limited protections under copyright law.

The exclusions of the 1990 law create barriers for the legal protection of digital art, especially the destruction or alteration of such art. So far, the courts have not ruled on how far the moral rights provisions of VARA can be extended to digital art.

To receive protection under current laws, Mucinskas recommended that artists limit public access to works they display on Web sites or distribute through CD-ROM or DVD sales. This can be done through password protection or software encryption.

The Digital Millennium Copyright Act of 1998 makes it a crime to circumvent codes built into software in order to copy, sell or remove material. Additionally, digital artists need to excise all non-visual elements in their creations, such as sound, film and video, to receive VARA protection.

More broadly, "digital artists must acquiesce to a traditional conception of the art object as unique and enduring,” or else accept the fact that their art can be freely borrowed, modified or incorporated into other works. “Moral rights can have a role in protecting digital art, but artists must choose to claim them,” Mucinskas noted.

Her article is titled, “Moral Rights and Digital Art: Revitalizing the Visual Artists Rights Act?"” The journal is published by the College of Law, National Center for Supercomputing Applications and the Institute of Government and Public Affairs.