RIGHTS FOR ARTISTS:
It still comes as a surprise to many people, including some artists, that under both federal law and some state laws, artists retain certain rights to their works of art—the physical objects themselves—even if the artist no longer owns the art. Such rights are known as moral rights and, although acknowledged and protected for a long time in Europe, they are relatively new to American law. Starting with California in 1979, numerous states enacted legislation giving artists a range of moral rights. In the late 1970s, Congress also began considering a federal moral-rights provision, but it was not until after the U.S. adhered to the Berne Convention in 1988 that those efforts bore fruit in the Visual Artists Rights Act of 1990 (VARA).
VARA, like other statutory copyright legislation, has both a private and a public justification. The first aim of the Act is to encourage visual artists to make and disseminate works of art by affording them certain protections and remedies against the destruction or damage to that art. The second aim is to preserve the artistic heritage for the benefit of society on the principle that living and working among works of art has positive societal effects.
VARA encompasses two basic rights: the right of attribution and the right of integrity. Under the right of attribution, an artist has the right to: (a) claim authorship of his or her own work; and (b) disclaim work that is not his or her own or that is distorted, mutilated, or otherwise modified such that it would be prejudicial to his or her honor or reputation. The second right, and probably the more important, is that of integrity. Under this right, an artist may prevent or claim damages for (a) any intentional distortion, mutilation, or other modification of the artist’s work that would be prejudicial to his or her honor or reputation; and (b) any intentional or grossly negligent destruction of a work of recognized stature.
These provisions are based on certain fundamental ideas. VARA acknowledges that an artist has a form of property right in his or her creation that others may not claim nor prejudicially alter. This is not a natural right based on the European model, but rather a grant of the Constitution and Congress. It is granted because an artist develops his or her reputation and career through the works of art themselves, so that any compromise to that art, or the public perception of it, directly makes an impact on the artist’s future livelihood.
As a threshold matter, only certain art is protected by VARA: works that fit a definition of “Works of Visual Art” in § 101 of the Act. Works in traditional media such as painting and drawing are covered, but multiples such as sculpture and prints are only protected if the work is a unique print or if it is in signed and numbered editions of 200 or less. Similarly, still photographs produced for exhibition purposes are protected only if they are unique or are in signed, numbered editions of 200 or less. Specifically excluded are numerous items listed in the statute, such as posters, maps, models, applied art, motion pictures, or other audiovisual works, periodicals, databases, and art produced for primarily commercial purposes, such as advertising, packaging, or promotional material. Also excluded is any portion of a mixed-media work of art incorporating one of the specifically excluded items. By listing inclusive and exclusive works, the status of works in media not listed at all remains uncertain. For example, to what extent a mixed-media or craft work would be protected, or a piece of performance art “fixed” on videotape, has been left to the courts to decide.
Keep in mind that any damage must be to the physical work of art itself, not to a print or other image of it. A good illustration of this distinction between the protection afforded art under VARA and other copyright law is Peker v. Masters Collection, 96 F.Supp.2d 216 (E.D.N.Y. 2000). Here, an artist had licensed a company to produce posters of his work. Masters Collection, a business that specializes in reproductions of art designed to look and feel like a real painting, purchased the posters and, without seeking the artist’s permission, backed the poster on canvas and applied a clear gel to the surface, thereby imitating the sweep of brushstrokes and the impasto of paint. The artist sued Masters Collection under both VARA (for modification) and under copyright law. The court dismissed the VARA claim on the grounds that the modification was to the posters, not to the artist’s “work of fine art,” the original canvas. The court, however, found for the artist on the copyright claim on the grounds of unauthorized reproduction.
Unlike moral rights in Europe, in the law in some U.S. states and in the first drafts of the federal legislation, only the artist whose work has been compromised has standing to sue under VARA. Thus, VARA rights may not be sold, bequeathed, or transferred in any way. They may, however, be waived, typically by contract at the time of commission or purchase. In the case of works by joint artists, waiver by one contributor is binding on all. If the rights are not waived, they survive until the death of the last surviving contributor. Moreover, the intent of the defendant matters. For example, the Act only protects against the intentional distortion, mutilation, or other modification of a work of art. But if the work is completely destroyed, then any grossly negligent behavior that caused the destruction may be actionable. A final and important limitation on the art covered by the Act is that no work for hire is protected by VARA.
One of the more controversial details of VARA is the “recognized stature” hurdle for protection against complete destruction of a work. Many other countries give no moral-rights protection against an artwork’s complete destruction on the principle that a piece which ceases to exist cannot be prejudicial to an artist’s honor and reputation in the way that an existing work which misrepresents the artist can. This misguided view was rejected by the framers of VARA, but a remnant survives in the “recognized stature” requirement (and in the similar “recognized quality” requirement in some state statutes). The statute does not define “recognized stature,” leaving it to the courts to set the bar. Nevertheless, it is clear that it was not intended to be a high hurdle, but rather a gatekeeping mechanism to prevent frivolous suits. Moreover, the inquiry is into the stature of the individual work of art, rather than the stature of the artist generally, although of course the latter informs the former.
The most influential case on this and many other VARA issues is Carter v. Helmsley-Spear, 861 F.Supp. 303 (S.D.N.Y. 1994), aff’d in part, vacated in part, 71 F.3d 77 (2d Cir. 1995). Two sculptors sued building owners under both the modification and destruction clauses of VARA for damage to their lobby installation. Judge Edelstein of the Southern District of New York enunciated a test for recognized stature that required a two-part inquiry—that the work in question was meritorious and that the merit was recognized by some relevant section of society (critics, collectors, art historians, the local community, and so on). Although it was not the intent of the Act to require judges or juries (recognized stature is a question of fact) to make aesthetic judgments, such a test comes perilously close to it, and it appears that some judges since may have allowed their personal aesthetic bias to color their opinions. (See the dissenting opinion of Judge Manion in United States v. Martin, 192 F.3d 608 [7th Cir. 1999].)
In assessing recognized stature, courts generally rely on expert testimony, but, as the Martin case illustrates, such testimony is not always necessary. Other forms of evidence—reviews of exhibitions in which the work appears, other critical comment, catalogues, and newspaper articles can all be employed. Interestingly, Judge Edelstein noted that VARA does not specify when a work might have obtained recognized stature, raising the possibility that the destruction of the work and the subsequent litigation might alone “generate” the required stature.
What constitutes mutilation or destruction of a work of art? In many cases, of course, the answer is obvious. But in others it is not. For example, to protect commercial galleries and museums, exceptions were carved out so that no work is distorted, mutilated, modified, or destroyed if the damage is the result of conservation or public presentation (including lighting and placement), unless caused by gross negligence. Similarly, damage caused by the passage of time or the inherent nature of the materials is not actionable—there is no duty to maintain or conserve under VARA. Open questions remain. For example, are site-specific works considered modified or destroyed when they are moved to another location? Moreover, the line between modification and destruction can be counterintuitive as, for example, in the case of a Southern District of New York court that determined that the complete obstruction of an exterior mural by a new brick wall did not constitute destruction of the mural, if the mural itself remained intact but invisible. (See English v. BFC & R East 11th Street LLC, 1997 WL 746444 [S.D.N.Y. 1997].)
The English opinion was motivated by concerns for the legitimate needs of urban development. The same concerns had led to the inclusion of a building exception to VARA. Under the exception, which is echoed in several state statutes, works of art that are incorporated into a building before 1990 (or post-1990 with a waiver from the artist) and that cannot be removed without damaging or destroying the works are not covered by the Act. If the art can be removed and the building owner wishes to remove it, he must make a diligent good-faith effort, in writing, to notify the artist, who has ninety days to remove the work or pay for its removal. If the artist complies, the title to the work rests with the artist. It is therefore imperative that an artist either record the work with the Copyright Office or make sure that the building owner has the artist’s current address. Experience with the statute suggests that the removal of a work is usually possible; for example, murals have been held removable even if painted directly on outside brickwork (See Hanrahan v. Ramirez, No. 97-CV-7470 [C.D. Cal. June 3 1998].)
The actions for a violation of VARA are the same as for other copyright provisions. The artist can obtain an injunction to prevent damage to or destruction of the work if he or she can show that the danger of damage is imminent. If the damage has already been done, actual or statutory damages, costs, and reasonable attorney fees are available. Statutory damages are attractive because they require less proof than actual damages. They range from $750 to $30,000 per artwork ($150,000 for a willful violation). Given the high cost of litigation, especially of expert testimony, and the subjective nature of the court’s inquiry, decisions to sue should be carefully weighed. A final factor should be the sympathy of the region in which the court sits. For example, the record of VARA recovery in New York is very poor, whereas Los Angeles and San Francisco, with their active mural programs, have seen a number of successful suits. The most successful result yet was the $200,000 settlement in San Francisco regarding the destruction of Chuy Campusano’s “Lilli Ann” mural. (See Campusano v. Cort, No. 98-3001 [N.D. Cal. Filed July 13, 1998].)
Other open issues remain to be litigated. First, while in the English case the court held that a work may not be protected by VARA if it was created without the property owner’s knowledge and permission, there is no statutory reason why other courts would reach the same decision in all cases. Second, although unauthorized modification of a work of art is usually a violation of VARA, the accused, for example, may nonetheless be able to invoke a type of “fair use” defense and claim that his or her modification was in the interests of parody or political comment, although no case has yet tested this possibility. Third, and probably most important, is the relationship of VARA to the prior state moral-rights laws. To the extent that VARA offers equivalent protection to state rights, the latter are explicitly preempted by the federal legislation. But many gray areas remain so that, for example, state laws which offer protection for multiples of more than 200, or grant a cause of action in some third parties, such as the California, Massachusetts, and Pennsylvania statutes, are probably still viable. Indeed, the Act specifically does not preempt those state statutes that provide for a cause of action for a limited time by the artist’s heirs or devisees. An aggrieved artist should always consider whether both a federal and state claim is available.
In spite of VARA’s limitations, artists would be well advised to become better acquainted with it, not only because it acknowledges that an artist invests more of him or herself in a work of art than is given up at sale, but also because it provides some real incentives to collectors, administrators, government officials, and property owners to treat both the work and the artist with respect. Only a few VARA cases have been fully litigated. Nonetheless there is strong anecdotal evidence that the existence of VARA has had significant effects in negotiating rights between an artist and patron and in settling disputes outside court. As public commissions proliferate and artists become more familiar with moral rights, we can expect more litigation to throw light on the areas of uncertainty in the Act.
—Jeffrey P. Cunard, CAA Counsel, with the assistance of his colleague Christopher J. Robinson, to whom he is grateful.