Monday, April 11, 2011

Zadkine case in Paris raises question of transferability of droit moral after an artist's death

Artist Ossip Zadkine's illegitimate son, Nicolas Hasle, continues to be embroiled in litigation to claim moral and economic rights to his late father's estate. The court of appeal of Paris recently ruled that the City of Paris (named the beneficiary of the estate by Valentine Prax, the wife of Zadkine who inherited the estate after the artist's death) had to outline its claim to Zadkine's estate. However, more interesting than the legal confrontation between Hasle and the City Council over the economic rights to the estate (which is basically a question of applicable inheritance law) is the concept and transferability of Zadkine's moral rights.

Moral rights refer to an author's right to control the work he/she has created. Such rights (a translation from the French term "droit moral"), protect the personal and reputational, rather than the purely monetary, value of a work to its creator. The scope of moral rights is unclear and differs from jurisdiction to jurisdiction, largely as a result of divergent cultural conceptions of authorship and ownership. In the US, moral rights are protected under various statutory instruments including the Visual Artists Rights Act of 1990 ("VARA"). VARA was the first federal copyright legislation to grant protection to moral rights but certain requirements have to met for a work to fall within the ambit of the statute's protection (e.g., it covers the visual arts only and works must have been produced for exhibition and exist in single copies or in limited editions of 200 or fewer, signed and numbered by the artist). In Europe and elsewhere, moral rights are more broadly protected by ordinary copyright law.

Under VARA, moral rights automatically vest in the author of a protected work but such rights are not transferable and terminate with the death of the artist. In stark contrast, under French law, moral rights are perpetual and they pass to the author's heirs or executor on the author's death although they may not otherwise be transferred or sold by either the author himself during his lifetime or by his heirs. Since moral rights include the right of attribution, this means that in practise the heirs of an artist can to some extent control the market for the late artist even though they may lack the technical qualifications to determine the provenance of works attributed to such artist. In Hasle's case, it's unclear whether he's even been exposed to the works of Ossip Zadkine. Posthumous moral rights raise many issues and it'll be interesting to see how the court in Paris deals with such rights in the context of the particular facts of this case (not just because Hasle is Zadkine's illegitimate child (I think it's highly unlikely that French law distinguishes between illegitimate and legitimate children) but because it's unclear whether Valentine Prax could lawfully have transferred the moral rights passed to her (I understand that under French law, while liberal, moral rights do terminate with the author's heirs)).

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