"Critically evaluate the relevance and application of the moral right of integrity in the entertainment business"

Contents

Introduction
Part 1. Integrity as Self-Integration
Part 2. Integrity as Moral Purpose
Part 3. Integrity and Moral Theory
Part 4. Moral rights in United States case Law
Conclusion
Bibliography

"Critically evaluate the relevance and application of the moral right of integrity in the entertainment business"

Defining the overall integrity of character in terms of moral purpose has the advantage of capturing intuitions of the moral seriousness of questions of integrity. However, the approach appears too narrow. Halfon's identification of integrity and moral integrity appears to leave out important personal aspects of integrity, aspects better captured by the other views of integrity we have examined. Integrity does not seem to be exclusively a matter of how people approach plainly moral concerns. Other matters like love, friendship and personal projects appear highly relevant to judgments of integrity. Imagine a person who sets great store in writing a novel, but who postpones the writing of it for years on one excuse or another and then abandons the idea of novel-writing after one difficult experience with a first chapter. We would think this person's integrity diminished by their failure to make a serious attempt to see the project through, yet the writing of a novel need not be a moral project.
Part 3. Integrity and Moral Theory
Despite the fact that it is somewhat troublesome, the concept of integrity has played an important role in contemporary discussion of moral theory. An important and influential line of argument, first developed by Bernard Williams, seeks to show that certain moral theories do not sufficiently respect the integrity of moral agents. This has become an important avenue of critique of modern moral theory.
Williams's argument against utilitarianism is directed against a particular version of utilitarianism—act-utilitarianism. This is, very roughly, the view that an agent is to regard as morally obligatory all and only actions that maximize general well-being. The act-utilitarian theory that Williams criticizes has an important feature: it aspires to describe the correct form of moral deliberation. It does more than specify what it is for an action to be morally correct, it specifies how an agent should think about moral decisions. Agents should think about which of the actions available to them will maximize general well-being and decide to act accordingly. Notice that this theory is completely impartial and that it makes no room for an agent to give special weight to personal commitments, causes, projects, and the like. Act-utilitarianism recognizes no personal sphere of activity in which moral reflection operates merely as a side-constraint.
Williams's argument is based on the identity theory of integrity, discussed above. Integrity, on this view, requires that persons act out of their own convictions, that is, out of commitments with which they deeply identify. Act-utilitarianism seeks to replace personal motivations of this kind with impartial utilitarian reasoning. Williams's argument appears to make acting with integrity incompatible with acting in accordance with act-utilitarianism.
Another way to try and improve utilitarianism in response to Williams's argument is to advance a less ambitious form of utilitarian moral theory. Recall that Williams criticizes a version of act-utilitarian moral deliberation, so one may respond to it by describing a version of act-utilitarianism that does not dictate the form of moral deliberation. A moral theory, on this view, primarily describes morally correct action and does not automatically entail a theory of correct moral deliberation. Thus one might subscribe to an act-utilitarian account of morally correct action whilst not demanding that someone like George approach life by deliberating in strictly utilitarian ways. There are however, a number of difficulties with separating out theories of morally correct action and correct moral deliberation in this way.
A second possible line of response to the argument is to deny the presupposition of Williams's argument that it is absurd for a moral theory to undermine integrity. It may just be that moral demands upon us really are very stringent, and identity-conferring commitments must sometimes (perhaps often) be sacrificed in the interests of, say, our acting to ameliorate preventable suffering. One might even consider it a virtue of utilitarianism that it demonstrates how genuinely difficult it is to preserve one's integrity when confronting a world of massive and easily preventable suffering.
The third, and most influential, line of response argues directly against the idea that utilitarianism demands that agents act against their convictions. Utilitarianism demands that agents adopt utilitarian ideals; that agents give utilitarian ideals the kind of priority that would have them function as the central identity-conferring commitments of their life. Thus utilitarianism does not demand that one live without identity-conferring commitments at all, but that one live with utilitarian identity-conferring commitments.
The matter is not finally settled, however, for notice that Williams's critique is premised on a version of the identity theory of integrity. As we have seen, there are other plausible candidates for an account of integrity and the critique of utilitarianism may well succeed better in their terms. The key issues are whether utilitarian commitment is compatible with a fully satisfactory account of integrity, and if so, whether integrity is of such value and importance that the clash between integrity and utilitarian commitment undermines the plausibility of utilitarian moral theory. An adequate account of integrity needs to deal with these issues and to capture basic intuitions about the nature of integrity: that persons of integrity may differ about what is right but a moral monster cannot have integrity9.
Part 4. Moral rights in United States case Law
This chapter first summarizes significant federal case law that assessed moral rights prior to enactment of the Visual Artists Rights Act, and then summarizes judicial decisions rendered since enactment of VARA.
Although moral rights were not recognized in U.S. copyright law prior to enactment of VARA, some state legislatures had enacted moral rights laws, and a number of judicial decisions accorded some moral rights protection under theories of copyright, unfair competition, defamation, invasion of privacy, and breach of contract. Such cases have continued relevance, not only for historical interest, but also for precedential value because state and common law moral rights protection was not entirely preempted by VARA. Arguably, state laws of defamation, invasion of privacy, contracts, and unfair competition by "passing off" are not preempted. Further, VARA rights endure only for the artist's life, after which preemption ceases.
In Vargas v. Esquire, artist Antonio Vargas created for Esquire magazine a series of calendar girl illustrations, some of which were published without his signature or credit-line. The U.S. Court of Appeals for the Seventh Circuit ruled that the rights of the parties were determined by the contract in which Vargas agreed as independent contractor to furnish pictures and granted all rights in the artwork to Esquire. The court rejected theories of implied contract, moral rights, and unfair competition. In Granz v. Harris, a jazz concert was re-recorded with a reduced playing time and content, such that a full eight minutes was omitted. The contract required the defendant to use a credit-line attributing the plaintiff-producer, who sued. The Second Circuit decided that selling abbreviated recordings with the original credit line constituted unfair competition and breach of contract. Whether by contract or by tort, the plaintiff could prevent publication "as his, of a garbled version of his uncopyrighted product." In Gilliam v. American Broadcasting Cos., ABC broadcast the first of two 90-minute specials, consisting of three 30-minute Monty Python shows each, but cut 24 of the original 90 minutes. Monty Python sued for an injunction and damages. The Second Circuit ruled that ABC's actions contravened contractual provisions limiting the right to edit the program and that a licensee's unauthorized use of an underlying work by publication in a truncated version was a copyright infringement. In a theory akin to moral rights, the court said that a distorted version of a writer's or performer's work may violate rights protected by the Lanham Act and may present a cause of action under that statute. The concurrence cautioned against employing the Lanham Act as a substitute for moral rights, and believed the court should restrict its opinion to contract and copyright issues. Another case, Wojnarowicz v. American Family Association, involved a group that protested an artist's work by reproducing 14 fragments in a pamphlet. The U.S. District Court for the Southern District of New York found for the artist under the New York Artists' Authorship Rights Act, but dismissed claims under the Copyright and Lanham Acts.
A few decisions have been rendered since enactment of VARA, although none has yet focused on waiver. Most notable of recent cases is Carter v. Helmsley-Spear, Inc. A large art installation by three sculptors was commissioned for a Queens warehouse, but the landlord, demanding the artists vacate the premises, indicated plans to remove the work. The artists sued in the district Court under VARA and prevailed. The trial court determined that the work was covered by VARA; it was a single work of art, was not a work of applied art, and was not a work-for-hire. The fact that the artists retained their copyright tipped the balance in favor of their independent contractor, rather than employee, status. The district court found that intentional alteration of the installation would injure the artists' reputation. Suggesting a two-tired approach, that court found the work qualified as one of "recognized stature" in that it has "stature," i.e., is viewed as meritorious, and this stature is "recognized" by art experts, the art community, or some cross-section of society. Rejecting various constitutional attacks on VARA, the district court granted an injunction but said VARA conveyed no right to complete a work and did not justify damages in this case.
On appeal, the Second Circuit analyzed the facts of employment and concluded that the sculpture in question was a work made for hire and therefor was outside the scope of VARA's protection. It reversed the lower court's award of injunctive relief and nullified the only case that had awarded relief to an artist under VARA.
The terms "gallery," "dealer" and "agent" are often used interchangeably in art contracts, but galleries, in their function as exclusive artists representatives, are more likely than dealers and agents to be involved in waiver of moral rights.
Visual Artists and Galleries Association Executive Director Robert Panzer stated that waivers will most often be initiated by purchasers, who may insist that a sale include a written contract waiving moral rights.
The contracts submitted included a variety of waiver provisions. A Campbell's Soup Art Contest demanded of entrants that they waive all moral rights as well as copyright. A Seattle Transit Project contract permitted the metro system to remove a work without the artist's approval if a designated arts committee so recommends and if the artist has the right of first refusal to purchase the work. A Massachusetts Bay Transportation Authority contract provided that state moral rights in a work that cannot be removed without substantial damage are "automatically waived" unless they are expressly reserved in a recorded instrument.
Conclusion
Modern moral theories, the most representative of which are utilitarianism and Kantian moral theory, do not concern themselves directly with virtue and character. Instead, they are primarily concerned to describe morally correct action. Theories of morally correct action generally aspire to develop criteria by which to categorize actions as morally obligatory, morally permissible, or morally impermissible. Some theories of morally correct action also introduce the category of the supererogatory: an action is supererogatory if and only if it is morally praiseworthy, but not obligatory. The two theories of primary concern to Williams are utilitarianism and Kantian moral theory, and both of these are usually interpreted as eschewing the category of the supererogatory. Williams maintains that both utilitarianism and Kantian moral theory are deeply implausible because of their integrity undermining effects.
When we grant integrity to a person we need not approve of his or her principles or commitments, but we must at least recognize them as ones a reasonable person might take to be of great importance and ones that a reasonable person might be tempted to sacrifice to some lesser yet still recognizable goods. It may not be possible to spell out these conditions without circularity, but that this is what underlies our judgments of integrity seems clear enough. Integrity is a personal virtue granted with social strings attached. By definition, it precludes ‘expediency, artificiality, or shallowness of any kind.’ The pleasure seeker is guilty of shallowness, the approval seeker of artificiality, and the profit seeker of expedience of the worst sort.
The self-integration and identity views of integrity see it as primarily a personal virtue: a quality defined by a person's care of the self. The social character of integrity is a matter of a person's proper regard for their own best judgement. Persons of integrity do not just act consistently with their endorsements, they stand for something: they stand up for their best judgment within a community of people trying to discover what in life is worth doing.
Nations that provide their authors and artists with protection in the nature of moral rights protection do so using various approaches. Some use statutory law to balance the interests of artists and their creations with the interests of copyright owners and other users of works. The statutes may be categorized as laws of copyright, design rights, passing-off, unfair competition, tort, or contract. In other countries, the personal rights of attribution, paternity, and integrity have been defined and shaped by the courts.
Nations that are members of the Berne Convention for the Protection of Literary and Artistic Works are required to meet a minimum level of protection, as set forth in the Berne Convention's Article 6bis. The multilateral treaty does not address waiver of moral rights; waiver is neither sanctioned nor prohibited, and individual member nations may implement the Berne Convention in their own ways.
However, since the inception of the Berne Convention, member nations have had intense interest in supporting not only authors' rights to exploit their works for profit, but also in preserving authors' personal relationships with their works. The Copyright Office traces the history of Article 6b in Chapter II of this Report, examining its evolution to its present day form.
Bibliography
Alcoff, Linda Martín (2009). ‘Does the Public Intellectual Have Intellectual Integrity?’ Metaphilosophy, 33: 521–534.
Ashford, Elizabeth (2008). ‘Utilitarianism, Integrity and Partiality.’ Journal of Philosophy, 97: 421–439.