Are Patents and Copyrights Morally Justified? - Tom G. Palmer

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Rather than offering a survey ofsome of the more outré results
of this law, I will present instead a brief statement of its theoretical
grounding.
Such rights entered the law (in France, at least, the place
where they have received the greatest legal recognition) in
court decisions governing the division of artistic property. In a
1902 case before the highest French court, the Court of Cassadon,
the court had to consider whether the ex-wife ofan artist
had the right to share in the commercial exploits of her husband’s
work.’°’The court ruled that she had a right to a share
ofthe economic proceeds, but that this decision would not “detract
from the right ofthe author, inherent in his personality, of
later modifying his creation, or even suppressing it” 102
JosefKohler, author ofan influential treatise on law, argued:
“Personality must be permitted to be active, that is to say, to
bring its will to bearand reveal its significance to the world; for
culture can thrive only if persons are able to express themselves,
and arein a position to place all their inherent capacities
at the command of their will.” 03 So far, this sounds familiar.
But, Kohier argued further:
[T]he writer can not only demand that no strange work be
presented as his, but that his own work not be presented in a
changed form. The author can make this demand even when
he has given up his copyright. This demand is not so much
an exerciseofdominion over my own work, as it is of dominion
over my being, over my personality which thus gives me
the right to demand that no one shall share in m~ 5 personality
and have me say things which I have not said.’
Damage to a work of art, even after ownership rights to it
have been transferred to another party, constitutes damage to
the personality of the creator; the work of art is an extension of
the personality ofthe creator. Thus, according to Kohier, issuing
an unauthorized, or bowdlerized, edition of an author’s work,
hanging red ribbons on a sculpture, or tearing down a piece of
sculpture even so offensively ugly as Richard Serra’s “Tilted
101. Cinquin v. Lecocq, Req. Sirey, 1900.2.121, note Saleilles (1902) (cited in S.
STROMHOLM, I La Daon~MORAL DE L’AUTEUR 285 (1966)).
102. S. STROMHOLM, supra note 101. at 285.
108. J. KOHLER, PHILOSOPHY OF Law 80 (G. Albrecht trans. 1914).
104. J. KOHLER, URHEBERRECET AN SCHRWFWERKEN UND VERLAGSRECHT 15 (1907)
(quoted in Damich, .supra note 100, at 29); see also Katz, The Doctrine ofMoral Right and
American Copyright Law—A Proposal, 24 S. C~u..L. REV. 402 (1951).