Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.
*Lorenza Giordani
I. INTRODUCTION
The interplay between copyright and cultural heritage law is often overlooked, yet it becomes crucial in the realm of art preservation. This is especially relevant when considering the moral right to integrity and the phenomenon of art destruction. These issues transcend a purely European context, offering a rich foundation for rethinking art preservation from an intergenerational perspective.
Originating in Europe, moral rights, including the right to integrity, have since become a global norm under the Berne Convention, which introduced them in 1928. Despite initial skepticism, particularly in common law jurisdictions, these rights are now widely recognized and embedded in international copyright frameworks. This article explores how the moral right to integrity, particularly in cases of visual art destruction, can align with the future application of cultural heritage law to protect communal cultural assets.
According to Article 6 bis of the Berne Convention, the moral right to integrity empowers artists to shield their works from distortion, mutilation, or modifications that harm their honour or reputation. Meanwhile, cultural heritage law seeks to preserve objects of significant cultural value. This article argues that the moral right to integrity can act as a provisional mechanism for cultural heritage protection, bridging individual rights with broader communal preservation efforts.
II. THE MORAL RIGHT TO INTEGRITY
Moral rights, originating in the European continental legal tradition, reflect the deep bond between an artist and their creation. Among these rights, the right to integrity allows creators to object to modifications—broadly intended—that are prejudicial to their honour or reputation. Enshrined in Article 6 bis of the Berne Convention and recognized internationally, the right to integrity’s application and enforcement vary widely across jurisdictions, offering little explicit guidance on the issue of destruction.
The destruction of a work raises complex questions about the balance between the individualistic focus of moral rights and the broader interests of society. While the harm directly affects the artist, it also extends to the cultural fabric of the community, suggesting a more expansive role for the right to integrity. However, in practice, legal disputes are confined to the artist and the artwork’s owner, leaving the community without a cause of action. By contrast, cultural heritage law assumes a communal benefit in the protection of cultural assets, explicitly recognizing the societal value of preservation.
For this reason, I argue that the community’s interest should be integral to interpreting the moral right to integrity, particularly in cases of art destruction. Reconceptualizing the right in this way would better reflect the dual significance of visual art as both personal expression and shared cultural heritage.
III. VISUAL ART AND THE UNIQUE CHALLENGES OF DESTRUCTION
Visual art’s physicality and unique embodiment of cultural values make it particularly vulnerable to destruction, positioning it at the center of discussions on cultural preservation. Unlike literary or music works, visual art’s value often hinges on its singular physical manifestation, challenging the established copyright principle of the distinction between chorpus mechanicum and mistycum. The destruction of a painting, sculpture, or installation can result in the irreversible loss of cultural and historical significance.
Legal ambiguity further complicates this issue. While the Berne Convention grants authors the right to object to modifications prejudicial to their honour or reputation, it does not explicitly address destruction. Some judicial interpretations suggest that destroying a work—rendering it non-existent—cannot harm an artist’s reputation, as no altered message can be conveyed to the public, unlike in cases of modification. Besides proving to be fallacious, this argument further neglects the collective cultural loss that occurs when a significant work of art is destroyed.
Two critiques arise regarding the use of the moral right to integrity as a mechanism for cultural preservation. First, not all works protected under the right to integrity will necessarily qualify as cultural heritage in the future, raising questions about the criteria for identifying cultural worthiness. Second, the enforcement of the right to integrity could reflect an artist’s interests in ways that conflict with community values. While the first critique involves establishing intergenerational criteria for cultural significance, the second critique highlights a valid tension that warrants further exploration.
To address these concerns, I propose reconceptualizing the moral right to integrity as a “collective-but-individually-embodied” right by acknowledging a seed of community interest in an individual right. This framework preserves the individualistic foundations of the right while recognizing the community’s stake in visual art, which derives meaning and value through public engagement and societal impact. By preventing destruction, the moral right to integrity safeguards works that might one day be recognized as cultural heritage, ensuring the preservation of significant artistic and historical contributions for future generations.
The theoretical foundation of the moral right to integrity highlights its role in protecting both individual artistic expression and communal cultural preservation. Yet, enforcement varies widely, particularly in cases of visual art destruction. While the Berne Convention provides a global framework, its lack of clear guidance on destruction leads to differing interpretations. This inconsistency complicates the protection of artistic integrity and the balance with cultural heritage goals. The next section examines how judicial approaches in Europe remain fragmented, with varied legal practices across countries. Comparisons with non-European systems reveal different ways these challenges are handled, emphasizing the difficulty of aligning individual and cultural rights in a cohesive way.
IV. THE DESTRUCTION ISSUE IN JUDICIAL APPLICATION: A MASSIVE FRAGMENTATION
Despite the widespread protection of the moral right to integrity across European countries, significant fragmentation persists in its scope and application, largely due to the lack of harmonization within the European Union’s copyright framework. While the EU has unified certain economic aspects of copyright law, moral rights remain outside its purview, leaving individual member states to develop their own interpretations and implementations. Notably, major jurisdictions such as France, Germany, Spain, and Italy do not explicitly extend the moral right to integrity to include the prevention of destruction. As a result, copyright disputes over the destruction of artworks are primarily resolved through case law, which reflects a mosaic of interpretations rooted in differing historical, cultural, and legal traditions.
Among European jurisdictions, Germany offers an instructive example of a more detailed and relatively recent jurisprudence. German courts engage in a nuanced balancing of the moral right to artistic integrity against the property rights of owners, employing a framework grounded in constitutional principles. The Federal Supreme Court has emphasized the importance of balancing the freedom of artistic expression, protected under Article 5 of the Basic Law, with the protection of property under Article 14. Courts consider key factors such as the originality, uniqueness, and intended purpose of the artwork—distinguishing between free artistic creations and applied art with functional purposes. When artworks are integrated into structures, practical considerations such as construction needs or redevelopment plans often weigh heavily against the artist’s rights. Additional considerations include whether the artist had opportunities to preserve their work through alternative measures, such as creating copies or facilitating reinstallation.
In contrast, certain non-European jurisdictions provide more explicit protections against the destruction of artworks, offering valuable lessons for balancing competing rights. For example, despite its historical resistance to moral rights and delayed adoption of the Berne Convention, the United States provides limited but significant safeguards under the Visual Artists Rights Act (VARA). VARA grants visual artists the right to prevent destruction of their works if the artwork is deemed to be of “recognized stature.” While this criterion may seem elusive, it has been clarified through case law, such as the landmark Carter v. Helmsley-Spear (71 F.3d 77 (2d Cir. 1995)) decision, which established that “recognized stature” involves both merit and recognition by experts, the artistic community, or society at large. This approach integrates community standards into the legal framework, reflecting a broader conception of cultural preservation.
Switzerland presents an alternative model, focusing on procedural obligations for owners under Article 15 of its copyright law. When the destruction of a copyrighted work is foreseen, the owner must offer the work back to the artist or, if this is not feasible, ensure the artist can create a suitable reproduction. This procedural mechanism has two notable advantages: it simplifies judicial assessments by providing clear obligations for owners and increases compliance by outlining a straightforward process. However, its individualistic focus—excluding community involvement in evaluating the artwork’s significance—limits its broader applicability, particularly for works of community importance.
Together, the U.S. and Swiss approaches highlight the potential for copyright law to address cultural heritage concerns through flexible interpretations of the moral right to integrity. The U.S. model emphasizes the role of community standards in preserving artworks of societal importance, while the Swiss system underscores the value of clear procedural safeguards. These models provide complementary perspectives on balancing artistic integrity with property rights, offering potential pathways for harmonizing international approaches to the destruction of art.Â
V. THE MORAL RIGHT TO INTEGRITY AS A SAFEGUARD FOR CULTURAL HERITAGE IN TRANSITION
The argument proposed in this article explores how the moral right to integrity can serve as interim protection for cultural heritage, especially concerning the destruction of visual art. Interpreting this moral right collectively bridges copyright and cultural heritage law, ensuring significant artworks may be preserved until they can be formally recognized under heritage statutes.
Firstly, the irreversible nature of destruction—and sometimes modification—means that once a work is lost, it cannot be recovered. While it’s unrealistic to save every piece of art from destruction, society benefits from preserving significant works to assess their cultural value in the future. This is not a call for blanket preservation, but an appeal for a forward-thinking approach in cases involving potential destruction.
Secondly, there is a timing gap between the application of copyright law and cultural heritage law. Cultural heritage laws often take effect after considerable time has passed and consensus has formed about an artwork’s importance. From a private law perspective, moral rights help ensure that enough art is preserved during this interim period.
Moreover, evaluating an artwork’s cultural significance under heritage law is not fundamentally different from assessing the moral right to integrity in cases of destruction, especially when considering the collective aspect of moral rights. The main difference is time: recognizing cultural value is clearly easier in hindsight. This retrospective acknowledgment explains concerns over the potential destruction of important artworks not yet protected by heritage laws.
Understanding the moral right of integrity as both individual and collective can reconnect copyright and cultural heritage law. While cultural heritage belongs to the community, copyright is a form of private property. These systems express and control value differently: the market for copyright and community relationships for cultural heritage. This tension can be addressed by integrating the community into enforcement through moral rights.
However, this relies on the assumption that authors and the public have converging interests, which is not always the case. Critics argue that moral rights laws presume a uniform public interest favouring preservation, which may not reflect reality. While moral rights may support preservation, they must be balanced against conflicting rights using fair criteria, emphasizing the need to consider these standards carefully.
VI. CONCLUSION
This article explores the key arguments for balancing the moral right to integrity with conflicting property rights over a single copyrighted work, particularly in the context of visual art destruction. Visual art presents unique challenges: it often operates outside copyright-driven markets, merges the intangible work with its tangible medium, and grapples with the ambiguous concept of destruction, which is intrinsically vague. The conflict between the moral right to integrity and ownership rights is a classic exercise in balancing, where no single right takes precedence, and fairness depends on well-defined criteria. This issue offers an opportunity to reflect on the broader relationship between copyright law and cultural heritage law. Despite their shared goal of protecting creative and cultural output, these fields are rarely connected in practice. The destruction of art, particularly in relation to the moral right to integrity, could serve as a useful lens for exploring this necessary relationship. Furthermore, in its broader sense, copyright law would benefit from moving away from a strictly individualistic interpretation and reconnecting with its cultural and community roots.
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* Lorenza Giordani is a PhD student at Bocconi University (Italy).
