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More than any other contemporary American legal scholar, Professor Merryman has drawn attention to the moral rights claims of artists. Anything written in the field in the United States since 1976 owes inspiration to The Refrigerator of Bernard Buffet ("The Refrigerator") Professor Merryman's seminal article in the 1976 Hastings Law Journal. I feel this particularly acutely since I became interested in the issue as a law student, in 1978. It looked like a hopeful time, for Professor Merryman had shown the way, and the Second Circuit, in the then-recently decided Monty Python case, seemed to be paying heed. The 1976 Copyright Act had just become effective, and seemed to offer authors the prospect of protecting integrity rights through the derivative works right, which authors would retain, thanks to the new statutory recognition of divisible copyright. Things seemed to be looking up in U.S. moral rights doctrine, but it didn't take long for expectations to deflate,largely for the legal cultural objections foreseen in Professor Merryman's article.

In titling this Essay "Have Moral Rights Come of (Digital) Age in the United States?" I am suggesting that another watershed looms. What statutes and case law have not yet achieved, perhaps digital media (and supporting legislation) will. Before addressing how digital media, with the help of the Digital Millennium Copyright Act ("DMCA"), may secure the rights of integrity and of attribution, I propose to review a few moments (or non-moments) in the positive law of U.S. moral rights, between The Refrigerator and the DMCA. Finally, I will consider whether alternative solutions, made possible by digital networks, in fact do, or should, substitute for protecting the work against unauthorized alterations.


Entertainment, Arts, and Sports Law | Intellectual Property Law | Law