San Diego Law Review


Steven G. Gey

Document Type



During the last three decades, visual artists and their supporters have convinced several states and the federal government to enact legislation protecting the moral rights of artists. This effort culminated in the federal government’s enactment of the Visual Artists Rights Act of 1990. These statutes protect various aspects of art, including most importantly artistic integrity, which gives artists the right to prevent the intentional distortion, mutilation, or other modification of an artistic work if the modification would damage the artist’s reputation. These statutes have recently come under attack, surprisingly, from within the art community itself. Professor Amy Adler recently published an article in the California Law Review articulating one version of this attack. The argument is that the premise of moral rights statutes; specifically, that art is inherently important and needs to be preserved in its original form; no longer comports with the nature of contemporary art. Professor Adler argues that contemporary art has dispensed with traditional notions of art and the artist on which the protections offered by moral rights statutes are predicated. From this perspective, traditional forms of artistic expression, such as painting, are no longer viable. Instead, contemporary art has moved toward a system in which the destruction of art is the linchpin of modern creativity. In such a system, moral rights statutes are no longer necessary because they are designed to prevent the destruction of art. This perspective draws on the philosophical work of theorists such as Professor Arthur Danto, who has argued that during the last two centuries art has evolved from a visual medium to an expressive medium to, finally, a conceptual medium. Having arrived at the conceptual conclusion of the artistic project, Danto argues that art is essentially dead because it no longer serves any of its traditional functions. Under this perspective, conceptual art gets subsumed into philosophy and no longer operates as a separate discipline-much less a discipline that is worthy of legal protection under something like a moral rights statute. This Article challenges the perspective on the current art world expressed by both Professor Adler and Professor Danto insofar as those perspectives are used to cast doubt on the continuing viability of moral rights statutes. There are several complementary claims being made here: first, that art has not died; second, that conceptual art has not taken over the artistic universe; and third, that the preservation of moral rights statutes does nothing to undercut the production of conceptual and other art; therefore, even if Professor Adler is correct about the nature of contemporary art, she is wrong about moral rights statutes.