Authors in Disguise: Why the Visual Artists Rights Act Got It Wrong

In the civil law tradition, moral rights protection is justified on the ground that a work of creative authorship reveals the author's individual process of creativity and artistic autonomy. Thus, given the infusion of "self' that occurs by virtue of the authorship process, an author should be entitled to claim certain personal guarantees such as the right of attribution and the right of integrity, which allow an author to prevent modifications to her work that are inconsistent with her artistic vision. Some critics are troubled, however, by the very concept of moral rights. Beginning in the late 1970s, literary critics such as Roland Barthes and Michel Foucault raised academic awareness of the purported fallacy that authorship entails an exclusive focus on the individual Romantic author.

This postmodem view of authorship essentially sees works of authorship as the product of individual or collective borrowing from the social fabric rather than the essence of any single person's creativity. Arguably this view is inconsistent with the theoretical predicate of moral rights.