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Rights and Remedies Provided Under the Berbe Convention

Under the Berne Convention Implementation Act of 1988, the United States fulfilled its obligation as a recent signatory to the Berne Convention for the Protection of Literary and Artistic Works, first signed in Switzerland in 1886. Under this Convention, new "moral" rights are provided to the author of the work of art. These "moral" rights (or "rights of attribution and integrity") were further implemented through the Visual Artists Rights Act of 1990. In the words of the Berne Convention, these new "moral" rights protect against "mutilation or other derogatory action in relation to the work that would prejudice the author's honor or reputation" during his or her lifetime.

Rights of Attribution and Integrity:
As a result of the Visual Artists Rights Act, 106A has recently been added to the Copyright Act, and includes valuable new rights for the author of a work of visual art. Under this section, the author, and no one else, has the right:

  1. to claim authorship of that work, and to prevent the use of his name as the author of any work of visual art which he did not create;
  2. to prevent the use of his name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his honor or reputation; and
  3. to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his honor or reputation and to prevent any destruction of a work of recognized stature.

A significant exception to the right in "(3)" above applies to a work which is permanently fixed to a building. This exception permits the owner of the building to destroy the building and any permanently attached works of art which are part of the building, without having to risk liability to the authors of the attached works.

These rights may be waived, but only by written instrument which specifically identifies the work for which the right of attribution and integrity is being waived. In the case of a joint work, a waiver by one author waives the right of attribution and integrity for all authors.

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