Cite as 635 F.3d 290 (7th Cir. 2011)
VARA was enacted as a consequence of the United States’ accession to the Berne Convention for the Protection of Literary and Artistic Works. After many years of resistance, the Senate ratified the treaty in 1988, bringing the United States into the Berne Union effective the following year. See 4 Nimmer § 17.01[C][2] (2010); 5 Patry §§ 16:1, 16:3. The Berne Convention dates to 1886, when seven European nations (plus Haiti and Tunisia) joined together to extend copyright protection across their borders. See 4 Nimmer § 17.01[B][1] nn. 10 & 17 (2002). During the course of the next century, many other nations joined, and the treaty underwent periodic revisions, most notably for our purposes in 1928 when Article 6bis was added, incorporating the concept of moral rights. See 3 id. § 8D.01[B] (2004); 5 Patry §§ 16:1, 16:3. Article 6bis provides:
(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
….
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, Sept. 9, 1886, as revised at Paris on July 24, 1971, S. Treaty Doc. No. 99-27 (1986).
When the United States joined the Berne Union in 1989, the concept of moral rights was largely unknown in American law. See Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir.1997) (“[I]t was accepted wisdom [before VARA] that the United States did not enforce any claim of moral rights.”); see also Weinstein v. Univ. of Ill., 811 F.2d 1091, 1095 n. 3 (7th Cir.1987) (The Continental principle of le droit moral is a doctrine that “no American jurisdiction follows as a general matter.”); Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. at 1035–36 (“The moral right of the artist, and in particular that component called the right of integrity of the work of art, simply does not exist in our law.”). Article 6bis was a major obstacle to Berne ratification. See Martin v. City of Indianapolis, 192 F.3d 608, 611 (7th Cir.1999) (The treaty’s moral-rights concept “was controversial in this country” and was embraced post-Berne only “in a very limited way.”); Carter, 71 F.3d at 82–83 (“The issue of federal protection of moral rights was a prominent hurdle in the debate over whether the United States should join the Berne Convention….”); see also 3 Nimmer § 8D.02[A]–[D] (2004); 5 Patry §§ 16:1, 16:3; Roberta Rosenthal Kwall, How Fine Art Fares Post VARA, 1 Marq. Intell. Prop. L.Rev. 1, 1–4 (1997).
American unease with European moral-rights doctrine—more particularly, the obligations imposed by Article 6bis—persisted beyond Berne ratification. Indeed, Congress initially took the position that domestic law already captured the concept in existing copyright and common-law doctrines and in the statutory law of some states. See Berne Convention Implementation Act of 1988, Pub.L. No. 100-568, §§ 2(2), (3), 102 Stat. 2853; 3 Nimmer § 8D.02[D][1] (2009); 5 Patry § 16:3. This was seen as an implausible claim. See 3 Nimmer § 8D.02[D][1] (“Th[e] Congressional finding flies in the
270–93 (2003); Henry Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. Legal Stud. 95 (1997); and Thomas F. Cotter, Pragmatism, Economics, and the Droit Moral, 76 N.C. L.Rev. 1 (1997).
