A Visual Art Law You Had Better Not Overlook
Museums, art galleries,municipalities, and collectors are now subject to federal legislation protecting artists’ rights to prevent alteration and destruction of their work. In 1990, over substantial opposition and after lengthy debate, Congress passed the Visual Artists Rights Act (“VARA” or “the act”) which amended §106A of the United States Copyright Act. VARA provides artists with a claim for the wrongful destruction, mutilation, or alteration of their works of art, as well as for incorrect attribution.1 These rights of attribution and protection from alteration and destruction generally are known as artists’ “moral rights.”2 VARA entitles an artist to all remedies under the copyright act, except criminal remedies, including statutory damages, attorneys’ fees, costs, and injunctive relief.3 This new legislation dramatically alters the relationship between artists and their collectors, and should be considered when purchasing, borrowing, commissioning, and even displaying works of visual art. In the last few years, artists have become aware of their right to prevent destruction and mutilation of their work. As a consequence, there has been a flurry of interest in pursuing VARA claims, and several reported decisions interpreting VARA. This article outlines VARA, the cases applying the act, and some of its shortcomings.
Protected Works of Art
VARA applies only to “works of visual art.” Under VARA, a “work of visual art” is a painting, drawing, print, sculpture, or photograph produced for exhibition purposes only. The work must exist in a single copy or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.4 The statutory definition excludes posters, applied art,5 motion pictures, audio visual work, electronic publication, books, advertising material, and work for hire.6 Although applied art is specifically excluded from VARA’s protection, VARA will protect works of visual art which incorporate elements of, but do not constitute, applied art.7 In spite of the stated narrow statutory definition of “works of visual art,” the legislative history suggests that courts have limited discretion to broaden the definition of “works of visual art” to include contemporary art forms not specifically excluded.8
Courts may consider a work of art, such as sculpture, which consists of many separate components, to be a single integrated work of art under VARA.9 This distinction is important where a work of art has several components, and some parts fall within the VARA definition of “works of visual art” and other parts do not. Otherwise, if the multicomponent work is not considered a single work of art, then one component could be removed, moved, or mutilated without violating VARA. In a case before the U.S. District Court, Southern District, New York, the court found elements in a building lobby which were attached to the ceiling and floor, interactive art, a mosaic covering the lobby’s floor, some of the walls, and elevator interiors constituted a single “work of visual art” as the components were interrelated and thematically consistent.10 The mosaic contained words and phrases that corresponded to and were interpreted by sculptural elements located on the ceiling and walls. The court concluded that the individual pieces would lose their meaning if they were not viewed together.11
What Are Rights of Attribution and Integrity?
VARA provides an artist with the right of attribution to his or her work and prevents the use of the artist’s name as the creator of a work of art he or she did not create.12 The right of attribution also prevents the use of the artist’s name as the creator of a modified work if attribution would be prejudicial to the artist’s reputation.13
The right of integrity is the right “to prevent any intentional distortion, mutilation, or other modification” of an artist’s work which “would be prejudicial to his or her honor or reputation even after title has transferred.”14 An artist establishes a VARA claim with evidence that the modification or mutilation is intentional and prejudicial to the artist’s honor or reputation. The artist’s “reputation” does not have to be established independent of the subject work of art in determining whether the “intentional distortion, mutilation, or modification of the work” would be “prejudicial to the artist’s honor or reputation”15; nor does an artist have to prove that he or she has preexisting standing in the artistic community. Congress intended for the focus to be on the honor or reputation of the individual artist with respect to the protected work, and not based on the degree of celebrity in the country or world. Thus, less well-known or appreciated artists have honor and reputations worthy of protection along with the most renowned.16
VARA’s right of integrity also includes the right to prevent any destruction of a work of “recognized stature.”17 In order to prove a VARA claim for the destruction of an artist’s work, he or she must establish that the destroyed work was of a “recognized stature” and that the destruction was intentional or grossly negligent. Congress did not intend for the courts to assume the role of art critic or find the work to be aesthetically pleasing in evaluating the “recognized stature” element,18 nor does an artist-plaintiff need to demonstrate that his or her work is equal in stature to Picasso or Renoir. The “recognized stature” requirement is intended to bar frivolous suits and ensure that only those works that art experts, the art community, or society in general views as possessing stature are protected.19
Although there are only a few cases of record applying VARA, these initial cases are particularly instructive. In 1994, three artists brought an action to prevent the removal, alteration, and destruction of art work commissioned by a property owner for installation in a lobby of a commercial building in Carter v. Helmsley-Spear, Inc. and 474431 Associates, 861 F. Supp. 303 (S.D.N.Y. 1995), followed by 71 F.3d 77 (2d Cir. 1995). The art work consisted of interrelated sculptural elements made of recycled materials and installed on walls, the ceiling, and in a floor mosaic. The owners of the building wanted to remove the work, but the removal could not be done without causing destruction or alteration of some components. The artists filed an action objecting to the removal of the work. Although on appeal the court ultimately found for the defendants on different grounds, the court’s opinion nevertheless outlined an analytical framework which other courts have followed.20 The court developed a two-tiered test for “recognized stature” requiring the artist to show: 1) that the visual art in question has stature, and is viewed as meritorious; and 2) that the stature is recognized by art experts, other members of the artistic community, or by some cross-section of society.21 In Carter the plaintiff’s persuasive and credible expert witness testimony of two professors and an art dealer was sufficient to satisfy the court’s two-pronged test for “recognized stature.”
Municipalities, counties, and governmental entities owning sculpture and other works of art on their property or acquiring real property with preexisting works of art are subject to VARA. In Martin v. City of Indianapolis, 982 F. Supp. 625 (S.D. Ind. 1997), followed by 4 F. Supp. 2d 808 (S.D. Ind. 1998), followed by 28 F. Supp. 2d 1098 (S.D. Ind. 1998), the court found that the City of Indianapolis violated a sculptor’s moral rights by demolishing a sculpture installed on land the municipality acquired. Prior to purchasing the land, the city sent all property owners a notice advising them of the city’s intent to purchase the property. In response, the artist objected to the destruction of the sculpture and offered to donate the sculpture to the city in return for the city’s assumption of the cost to remove and reinstall it with Martin’s assistance. Despite the artist’s objection, the city acquired the land and demolished the sculpture. In Martin, the court applied Carter’s two-tiered test and found that a stainless steel sculpture had “recognized stature” where it had won “best of show” in an annual art show reported in the local newspapers, an art gallery director had described it as interesting and aesthetically stimulating, and a newspaper art critic and associate professor described it as a fine piece of public sculpture.22 The district court found that the sculpture was protected and that the city’s demolition was in violation of VARA. The court awarded the artist the maximum statutory damages, as well as attorneys’ fees and costs.
Art collectors, galleries, and museums may be liable under VARA when a work of art in their collection is not displayed as the artist intended. This responsibility should be carefully considered particularly when installing sculpture or a multicomponent work. For instance, the artist Philip Pavia filed an action, Pavia v. 1120 Avenue of the Americas Associates, 901 F. Supp. 620 (S.D.N.Y. 1995), against the owner of one of his sculptures for the altered display of his work. In 1963, the Hilton Hotel in New York City commissioned Pavia to create a large bronze sculpture for its lobby. In 1988, the work of art, which consisted of four components, was moved to a parking garage entrance and displayed with only two of its four parts.23 Pavia filed a VARA suit alleging that the improper display of his work damaged his honor and reputation.
The court first found that the multicomponent sculpture was a single work of art.24 Second, as the sculpture was actually moved and improperly displayed in 1988, prior to VARA’s effective date, the court considered whether VARA rights arise from the actual act of “distortion, mutilation, or other modification,” which occurred in 1988, or whether the ongoing display of an altered work of art gives rise to a VARA claim. The court found that although VARA is silent, the legislative history suggests that it would not be appropriate to modify the responsibilities of the parties and apply new standards to conduct occurring prior to VARA’s enactment. As the improper display occurred prior to VARA’s enactment the court held that VARA did not apply.25 If the sculpture had been improperly installed after June 1, 1991, the artist would have had a VARA claim. The court nevertheless found that VARA did not preempt the artist’s claims under New York’s moral rights legislation, the Arts and Cultural Affairs Law, for the improper installation of the sculpture.
Protection for Works
of Art Installed Under §113
Owners of buildings with installed works of art also are subject to VARA, but its application is limited. Congress amended §113 of the U.S. Copyright Act to provide basic protections to an artist’s rights of integrity and attribution for works of art incorporated into architecture.26 However, the act distinguishes between those installed works that are removable without destruction or alteration and those that are not.
VARA provides the artist with rights to prevent the modification or destruction of a work of art where the work is removable from the building without the need to destroy, alter, or mutilate the work.27 When a work is removable without alteration or destruction, the artist’s VARA rights under §113(d)(2) are waived if the building owner makes a good faith attempt to give notice to the artist of the intended removal and the artist either fails to respond or fails to remove the work or pay for its removal within 90 days after receiving notice. If the artist removes the work, the artist becomes the title holder.28 The building owner will violate VARA if the owner does not give notice to the artist and removes the work of art. As a protection against a building owner’s claim of the inability to locate the artist, the artist should record his or her identity and address with the Register of Copyrights.29 Artists waive their rights of integrity under VARA if the artist consented to the installation of the work into a building prior to June 1, 1991, or at any time if the artist consented in writing to the installation and the writing specifies that the installation may subject the work to “destruction, distortion, mutilation or other modification” upon its removal.30
Section 113 raises many questions regarding its application and scope. First, §113 is silent as to whether the artist has any rights of integrity and attribution while the work is on view. Second, Congress similarly did not provide a standard for determining what is reasonably removable. Some works may be theoretically removable, but with much labor and extraordinary cost. How much labor and expense is reasonable? Does it vary according to the significance of the work? Finally, the legislature did not indicate whether a building owner is liable for demolition by gross neglect. VARA’s §106A clearly states that there is no affirmative duty to conserve works of art. Section 113, however, does not preclude liability for demolition or alteration by neglect. As there are no reported cases applying §113, it remains to be seen how courts will view these issues.
Rights and Standing
VARA does not apply to works of art sold or transferred prior to the law’s effective date, June 1, 1991. However, where the artist created the work on or after the statute’s effective date, VARA rights survive for the life of the author.31 When the work of visual art is created by two or more authors, the rights last as long as the last surviving artist’s life.32 VARA rights expire with the copyright when the artist created the work of art before June 1, 1991, but did not transfer title until later.33
Only the artist has standing to maintain a VARA claim. VARA does not provide standing for not-for-profit organizations or governmental agencies to initiate VARA claims, or permit an artist to assign or transfer VARA rights. The VARA claim may be asserted even after the artist has transferred the work’s ownership, and regardless of whether the work is registered with the Registry of Copyrights.
VARA’s exclusive standing for artists severely limits its impact, as it precludes not-for-profit organizations from filing suit on behalf of community interests. On the other hand, limited standing is consistent with Congress’ intent to protect the artist’s interests, and not necessarily the community’s. For instance, it is possible that an artist may view the act of mutilation or alteration of his work as expressive and creative in itself. In fact, in 1953 the renowned artist Wilhelm DeKooning permitted his friend, artist Robert Rauschenberg, to erase a DeKooning pencil drawing in creating Rauschenberg’s work entitled “Erased DeKooning Drawing.”
Likewise, artists who install works of art on property without the property owner’s authorization are not protected by VARA. Recently, a New York district court considered the protection of an environmental art work installed in a community garden in New York City in English v. BFC & R East 11th St., L.L.C., 1997 WL 746444 (S.D. N.Y. 1997) (unpublished opinion). The artists did not have permission to install the garden. When the owner proposed a construction project which required the demolition of sculpture and obstruction from view of murals, the six artists brought suit under VARA against the developers. At trial, the court held that VARA is inapplicable to art work that is placed on the property of others without their consent when such art work cannot be removed from the site in question.34 According to the court, artists otherwise would be able to freeze development merely by installing artwork on vacant lots.35
Fees, and Costs
Most recently, a court awarded a prevailing artist/plaintiff the maximum statutory damages available under VARA, to send the message that “destruction of works of art is not acceptable behavior under the law or in the eyes of the public.”36 Under VARA, when the plaintiff elects statutory damages, the court has the discretion to award damages between $500 and $20,000.37 If the artist/plaintiff can prove that the infringement was “willful,” the court may award enhanced statutory damages up to $100,000.38
In November 1998, after the court entered summary judgment in favor of the artist in Martin, the artist moved for the award of statutory damages and attorneys’ fees. The artist claimed that because the city had knowledge of the artist’s ownership of the sculpture and of a contract between the city and artist regarding the removal of the sculpture, the city’s infringement was willful, and entitled him to an enhanced statutory award of $100,000. The court, however, found that there was insufficient proof that the city had knowledge of or recklessly disregarded VARA and Martin’s integrity rights. As a result, Martin was not entitled to the enhanced damages.39 The court held that intentional conduct was not enough to find willfulness. There must be intentional infringement.
Although the court did not award the enhanced statutory damages, the court concluded that Martin was entitled to the full amount of statutory damages ($20,000) because the loss the artist sustained was incalculable and substantial, and due to the city’s complete disregard for the city’s contractual obligations to Martin and Martin’s ownership claim. The court noted the importance of the damages being enough to have a strong deterrent value.40
The court also awarded the artist costs and attorneys’ fees totaling $131,252.55 to further compensate the artist for his loss, as well as to encourage other artists to “assert their VARA claims in court, and deter municipalities and others from wantonly destroying works of art.”41
Visual Artists, Collectors, Art Dealers, and Museums
VARA issues arise in many diverse commercial and not-for-profit contexts. Museums, private collectors, galleries, and governments are all potentially liable for VARA violations. It is therefore critical for those who own, work with, or collect works of art to know their rights and responsibilities under VARA. They also should know when VARA does not apply. First, there is no VARA liability for modification which is the result of deterioration caused by the passage of time or the inherent nature of the work’s materials.42 Second, there is no liability when a work of visual art is modified as a result of conservation, or public presentation, including lighting and placement of the work, unless the modification is the result of gross negligence.43 Third, the act does not provide for an affirmative duty of conservation or a cause of action for alteration or destruction by neglect. Finally, an artist may waive his or her VARA rights by executing a written waiver.44
Interestingly, the act is silent as to how an art collector can avoid VARA liability when the owner wishes to dispose of a work of art in his collection, but is unable to sell or donate the work to a third party. The owner may not have room to store the work until the death of the artist. Should the owner return the work to the artist? Who should bear the cost of packing and shipping the work? May the work be disassembled? Are the owner’s hands tied until the death of the artist? Although the theory of moral rights is sound, VARA may not have addressed some of the practicalities of art collecting and dealing. VARA’s silence may have an unintended onerous effect on collectors and dealers.
VARA is a short piece of legislation with a potentially enormous impact on the art world. VARA puts a heavy burden of proof on the artist-plaintiff and makes litigation costly by virtue of the need for expert witness testimony of art scholars, art dealers, collectors, and museum curators. Unfortunately, Congress’s failure to provide standing to enforce VARA to anyone other than the artist substantially loosens the grip of this law as artists may not have sufficient resources to pursue their claims. VARA’s impact is also considerably weakened by the artist’s ability to waive VARA rights, the necessity to prove the work’s “recognized stature” and “prejudice to the artist’s honor and reputation,” and the short enforcement period. Nevertheless, VARA represents a positive step toward Congress’ recognition of the public’s moral responsibility to preserve and protect works of art in order to respect both our cultural heritage and the personal expression of artists. q
1 Visual Artists Rights Act of 1990, Pub. L. No. 101-650 (Tit. VI), 104 Stat. 5089, 5128–33 (1990), 17 U.S.C. §106A. VARA does not preempt or limit legal or equitable rights or remedies under state laws not equivalent to VARA. Because several of these state laws provide greater protection than VARA, they may be effective and often should be invoked in conjunction with a VARA cause of action. 17 U.S.C. §301(b).
2 VARA provides the author of a work of visual art
“ (1) shall have the right—
(A) to claim authorship of [their] work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3). . . shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation. . . and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”
3 17 U.S.C. §§411, 412, 506 (1995).
4 17 U.S.C. §101.
5 Applied art has been defined by courts as “two and three dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects.” Kieselstein-Cord v. Accessories Pearl, Inc., 632 F.2d 989, 997 (2d Cir. 1980).
6 17 U.S.C. §101. A work for hire is generally defined as “a work prepared by an employee within the scope of his employment.”
7 Carter v. Helmsley-Spear, Inc. and 474431 Assoc., 861 F. Supp. 303, 315 (S.D.N.Y. 1995). Applied art has been defined by courts as “two and three dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects.” Kieselstein-Cord v. Accessories Pearl, Inc. 632 F.2d 989, 997 (2d Cir. 1980).
8 The legislative history of the act indicates that “the courts should use common sense and generally accepted standards of the artistic community in determining whether a particular work falls within the scope of the definition. Artists may work in a variety of media, and use any number of materials in creating their works. Therefore, whether a particular work falls within the definition should not depend on the medium or materials used.” H.R. Rep. No. 514 at 9.
9 Pavia v. 1120 Avenue of the Americas, 901 F. Supp. 620 (S.D.N.Y. 1995). See also Carter v. Helmsley-Spear, Inc. and 474431 Assoc., 861 F. Supp. 303, 313 (S.D.N.Y. 1995).
10 Carter, 861 F. Supp. at 314 (S.D.N.Y. 1995).
11 Carter, 861 F. Supp. at 315 (S.D.N.Y. 1995).
12 17 U.S.C. §106A(a)(2).
13 17 U.S.C. §106A(a)(2). Although VARA is based on Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works, S. Treaty, Doc. No. 27, 99th Cong. 2d Sess. 41 (1986), it is not equivalent. Article 6bis provides a right of anonymity—the right to publish a work anonymously and to stop anonymous publication and a right of pseudonimity—the right to publish under a pseudonym and to stop publication under a pseudonym. Article 6bis’ moral rights also expire simultaneously with economic rights under copyright law which is 75 years after death in most European countries and 50 years after death in the under copyright law which is 75 years after death in most European countries and 50 years after death in the U.S. For a thorough discussion regarding the origination of artists’ moral rights or le droit moral see Ralph E. Lerner and Judith Bresler, Art Law (1989).
14 17 U.S.C. §106A(a)(3)(A).
15 Carter, 861 F. Supp. 303 (S.D.N.Y. 1995).
16 H.R. Rep No. 101-514, 101st Cong. 2d Sess. 15 reprinted in 1990 U.S.C.C.A.N at 6925.
17 17 U.S.C. §106A(a)(3)(B).
18 Carter, 861 F. Supp. at 325 (S.D.N.Y. 1995).
19 Carter, 861 F. Supp. 303 (S.D.N.Y. 1995).
20 The court did not rule on the VARA issue as it found that the subject sculpture was “work for hire.” See supra note 15 and 17 U.S.C. §101 for a definition of “work for hire.” A full legal analysis of the “work for hire” issue is beyond the scope of this article.
21 Carter v. Helmsley-Spear, Inc. and 474431 Assoc., 861 F. Supp. 303 (S.D.N.Y. 1995), followed by 71 F.3d 77 (2d Cir. 1995).
22 Martin v. City of Indianapolis, 982 F. Supp. 625 (S.D. Ind. 1997), followed by 4 F. Supp. 2d 808 (S.D. Ind. 1998) followed by 28 F. Supp. 2d 1098 (S.D. Ind. 1998).
23 Pavia, 901 F. Supp. at 623–24 (S.D.N.Y. 1995).
24 Id. at 628.
25 Id. at 628–29.
26 17 U.S.C.A. §113 (1995); Pub. L. No. 101-650, Title VI, §604, Dec. 1, 1990, 104 Stat. 5130.
27 17 U.S.C.A. §113(d)(2).
28 17 U.S.C.A. §113(d)(2)(B).
29 17 U.S.C.A. §113(d)(3).
30 17 U.S.C.A. §113(d)(1)(B).
31 17 U.S.C. §106A(d)(1).
32 17 U.S.C. §106A(d)(3).
33 17 U.S.C. §106A(d)(2).
34 English, 1997 WL 746444 at 6.
35 1997 WL 74644 at 4. The plaintiffs alleged that the garden itself constitutes a single work of art, and not a grouping of five independent works. The artists described it as a “large environmental sculpture encompassing the entire site and comprised of thematically interrelated paintings, murals, and individual sculptures of concrete, stone, wood and metal. The characterization of a single work of art was critical to the plaintiffs as construction would obstruct the view of the murals, but some of the sculpture could be removed without alteration.
36 Martin v. The City of Indianapolis, 4 F. Supp. 2d 808, 812 (S.D. Ind. 1998), followed by 28 F. Supp. 2d 1098 (S.D. Ind. 1998).
37 17 U.S.C. §504(c)(1).
38 17 U.S.C. §505.
39 Martin v. The City of Indianapolis, 4 F. Supp. 2d 808 (S.D. Ind. 1998), followed by 28 F. Supp. 2d 1098 (S.D. Ind. 1998).
41 Martin v. City of Indianapolis, 28 F. Supp. 2d 1098 (S.D. Ind. 1998).
42 17 U.S.C. §106A(c)(1).
43 17 U.S.C. §106A(c)(2).
44 An alternative would be for Congress to amend VARA to provide an optional notice and waiver provision similar to that in §113, discussed below, where the owner gives the artist written notice of his intent to disassemble, alter or destroy a work of art. Upon receiving the notice, the artist waives his VARA rights if he does not respond within 90 days.
Rachel A. Camber’s practice focuses on commercial litigation and representing artists, galleries, and collectors with arts law issues at Haley, Sinagra & Perez in Miami. Prior to attending Washington University School of Law in St. Louis, Missouri, she worked at the Museum of Fine Arts, Boston. In addition to practicing law, Ms. Camber has been an advocate for historic preservation, and, most recently, has been lecturing to artists on arts law.
This column is submitted on behalf of the Entertainment, Arts and Sports Law Section, Kimberly D. Kolback, chair, and Joseph Z. Fleming, editor.