Abstract
Beginning in 1979, certain states extended extra copyright protection, known as “moral rights” protection, to visual artists. Moral rights protection, which was incorporated into U.S. copyright law in 1990, ensures that works cannot be altered in a manner that would negatively impact the reputation of the artist. Using difference-in-differences regression strategies, we compare artists and non-artists in states with moral rights laws to those in states without these laws, before and after the laws are enacted. This enables us to test the impact of the laws on the behavior of artists, consumers, and policy makers. Our analysis reveals that the average artist’s income falls by around $4000 per year as a result of moral rights legislation, but we find no impact of the laws on artists’ choices of residence or on state-level public spending on the arts.
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Notes
New York, Massachusetts, Maine, Louisiana, New Jersey, Pennsylvania, New Mexico, Rhode Island, Connecticut, Nevada, South Dakota, Montana, and Utah.
In particular, VARA applies to paintings, drawings, sculptures, prints, and still photographs produced for exhibition (single copies or signed and numbered limited editions of 200 or less) for works created after June 1, 1991 (17 U.S.C. § 101). There is a limitation for art work that is part of a building, and would likely be mutilated or destroyed if later removed. VARA also does not cover the alteration, mutilation, or destruction of a work that results from negligence, the passage of time, the nature of the materials used, or failed conservation efforts. Finally, VARA does not protect a “work-for-hire” which is defined by the Copyright Act as “a work prepared by an employee within the scope of his or her employment” (17 U.S.C. § 101).
This is in contrast to the rest of U.S. copyright law, which extends protection for 70 years after the death of the artist. In addition, moral rights are retained by the artist even if the copyright has been transferred.
“Recognized stature” is not defined in the code, but is determined on a case-by-case basis (St. Louis Volunteer Lawyers and Accountants for the Arts 2005).
Several sources provide detailed examples of situations in which U.S. artists, prior to the passage of moral rights legislation, were harmed when their work was altered without their consent. One well-known example was the removal and destruction of the Richard Serra sculpture Tilted Arc from Federal Plaza in New York City (Senie 2002). Failing (2002) describes a situation in which a piece by sculptor David Smith was vandalized by the owner, who claimed his changes had “improved” the work. See Tacha (2002), St. Louis Volunteer Lawyers and Accountants for the Arts (2005), and Landes and Levine (2006) for other interesting examples.
Landes (2001) and Landes and Levine (2006) present a thorough discussion of the various cases tried in court under this legislation. Additional cases have been settled out of court. Most recently, in 2008, muralist Kent Twitchell received a $1.1 million settlement in a suit against the U.S. government and 12 other defendants under VARA and CAPA (the California state moral rights law) (Brutocao and Bjorgum 2008).
For instance, in the regression with average 1990 artist earnings as an outcome, Landes adds average 1980 artist earnings as a control.
Difference-in-differences regression models are commonly used in the program evaluation literature. Wooldridge (2002), Chap. 6.3.1, provides a detailed description of diff-in-diff models.
Landes uses data from various editions of the Statistical Abstract of the United States, also published by the United States Census Bureau. Estimation of the regressions in the Landes paper using our 1990 dataset produces similar, statistically insignificant results.
As in Landes (2001), California, New York, Massachusetts, Maine, Louisiana, New Jersey, Pennsylvania, Rhode Island, and Connecticut are coded as states with moral rights laws. New Mexico, Utah, and Montana enacted related legislation during the study period, but as their laws offer only minimal protection we do not include them as moral rights states. Nevada and South Dakota passed moral rights laws in 1989. These are not included as moral rights states in the state-level analysis since income values in the 1990 Census are from the previous year and would not capture the effect of these laws. These two states are included as moral rights states in the individual-level analysis below.
We estimate Eq. 1 with and without California, since the California law was passed in 1979, and went into effect during the 1980 Census year. Reported results include the California observations, but results are insensitive to the removal of California.
CPS survey participants are interviewed in four consecutive months, for two consecutive years before rotating out of the sample. What this rotation implies is that in any given March file, at most 50% of the sample was present in the previous year’s survey (and participants never appear more than 2 years in a row). In practice, however (because of attrition and other issues with survey design), the number of respondents appearing 2 years in a row is “considerably less than the upper limit of fifty percent” (CPS March 2002 Codebook). For this reason, we treat the data as a series of repeated cross sections.
This excludes retirees, students, home-makers, and other individuals who are voluntarily not working. We eliminate these individuals from our sample because very few artists, relative to non-artists, have not-in-the-labor-force (NILF) status. We therefore have a more comparable control sample if we limit only to individuals who are either working or looking for work.
See Gruber (1994) for further discussion of DDD models.
We do not code post = 1 in the same year that the law takes effect, because the income variable reports earnings from the previous year.
We have also estimated this equation with state income per capita as a control variable. The addition of this control does not change the main result.
As discussed in Sect. 6, the magnitude of this coefficient is surprisingly large considering the relative infrequency of court cases brought under VARA. We hypothesize that this large effect is a short-run response that has dissipated over time, and we consider this estimate to be an upper-bound on the true effect. Even so, these results are important in establishing that the true effect of the laws on artists’ incomes is indeed negative and not zero.
Specifically, restricting the sample to each group separately reduces Eq. 2 to:
\( y_{\text{ist}} = \beta_{0} + \beta_{1} {\text{law}}_{s} *{\text{post}}_{\text{st}} + \beta_{2} {\text{law}}_{s} + \beta_{3} {\text{post}}_{\text{st}} + \beta_{4} {\mathbf{X}}_{\text{ist}} + \delta_{t} + \mu_{\text{ist}} . \)
Since probit estimation produces highly similar results, we report the OLS coefficients for ease of interpretation.
We drop the state of California from the dataset for this exercise, because the California law went into effect in 1980—too early for us to include those datapoints in this test. No other state in the sample had moral rights legislation prior to 1984.
We drop individuals aged 65+ in this case because this sample includes retirees, and non-artists are substantially more likely to be retired than artists.
Average artist income in law states in the pre-period for the sample not conditioned on labor force status is $20,215.
Summary statistics for performing artists in the pre- and post-periods are available from the authors upon request.
This is accomplished with a Stata module, psmatch2, by Leuven and Sianesi (2003). Results are similar with one-to-one matching, or if we draw the two nearest non-artist neighbors. Summary statistics for the matched controls are available from the authors upon request. See Todd (1999) for a thorough discussion of matching estimators.
A large literature has examined various instances in which laws intended to protect a particular population have had unintended negative consequences. For example, Acemoglu and Angrist (2001) and DeLeire (2000) examine such consequences associated with the Americans with Disabilities Act. Gruber (1994) finds unintended consequences from mandated maternity benefits and Lahey (2008) investigates negative effects of anti-age discrimination legislation.
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Acknowledgments
The authors are grateful to the May and Stanley Smith Charitable Trust for financial support, and to Katherine Kiel, Joanna Lahey, and Victor Matheson for helpful comments.
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Boyle, M., Nazzaro, S. & O’Connor, D. Moral rights protection for the visual arts. J Cult Econ 34, 27–44 (2010). https://doi.org/10.1007/s10824-009-9113-3
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DOI: https://doi.org/10.1007/s10824-009-9113-3