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<em>Droit moral</em> – the legal doctrine that grants artists a moral right to dictate certain treatment of their artwork even after sale – has a firm foundation in European law and elsewhere, but has never found much support in U.S. jurisprudence.  Certain moral rights are recognized under the Visual Artists Rights Act of 1990, 17 U.S.C. 106A, (VARA) and some state laws, but these are generally less robust than their international counterparts.  American observers often agree that the doctrine not only can undermine basic free market principles, but also may ultimately harm artists by muddying the value of their artwork to potential buyers.  However, the lack of an ongoing moral right in artwork may have produced a new uncertainty in the art market: forgeries.

According to a recent report in the New York Times, the proliferation of quality forgeries is a growing problem in the art world.  The problem is exacerbated by the failure of the U.S. legal system to effectively mark or destroy works identified as fakes, or otherwise remove them from the market.  Instead, the bogus art often slips back into the marketplace, and onto the walls of even high-end collectors.  The venerable Knoedler Gallery and its president were recently accused of selling forged art by Jackson Pollack, Willem de Kooning, Mark Rothko and Robert Motherwell.  Knoedler shut the doors on its 165-year history last year, but it is still litigating the cases, just recently settling one of them last month.  Some experts believe that if <em>droit moral</em> were recognized in the United States, artists and the foundations that protect their works could more easily force these forgeries out of the market for good.  Moral rights often include rights of attribution, integrity, and reputation.  In particular, the right of attribution may be used by an artist to prevent others from using that artist’s name in connection with work, which directly neutralizes the major characteristic of forgeries.  Moral rights, unlike copyright and other rights, are generally not time-limited or alienable.

But do we really want courts and law enforcement making decisions about what ends up in the dustbin, or worse, the shredder?  Sometimes an established forgery is later revisited and declared a genuine and valuable work.  Sometimes a piece of art walks the line between forgery and homage, and can be a worthwhile piece in its own right.  Sure, no one wants the aesthetic and monetary value of a real Pollack or Liechtenstein to decline because of a glut of forgeries.  But once a court orders the sheriff to burn that canvas, there is no going back on that decision.  For these reasons, one of the few moral rights enumerated by VARA is the right to prevent mutilation of certain artwork.

Fifty Shades of Gray Market Artwork