A Guide to the Visual Artists Rights Act

by

Cynthia Esworthy

NEA Office of General Counsel, JD Washington & Lee Law School 1997

What rights does an artist have once the work is sold? Until 1990, with rare exceptions -- such as Monty Python, which won a lawsuit preventing broadcast of edited programs -- artists in the United States had virtually no power to protect their work from mutilation, misattribution, or destruction. For example, in 1966, Maryland commissioned William Smith to create nine murals highlighting the state's history, subsequently installed but altered the central panel, and then refused to remove his name from the piece. He had no recourse. In 1980, the Bank of Tokyo commissioned and then removed Isamu Noguchi's 1,600 pound sculpture, Shinto, from its Manhattan lobby, sliced it into pieces, and warehoused it, without notifying the artist. He had no recourse. In 1979, the General Services Administration commissioned and then, after office workers complained about it, removed Richard Serra's Tilted Arc, a site-specific sculpture bisecting Manhattan's Foley Square. He had no recourse.

With the 1990 passage of the Visual Artists Rights Act (VARA), protecting the moral rights of attribution and integrity, the successors of Smith, Noguchi, or Serra ---today's artists--- have a far greater ability to protect against similar threats to their work. But, as three artists who spent several years creating a massive sculptural installation learned after Helmsley-Spear purchased the building, these rights are not absolute: the Supreme Court recently ruled that VARA does not prevent the removal and destruction of their work. VARA applies only to a restricted category of visual artworks, extends only limited rights, and is subject to loopholes, exclusions, and waiver provisions that substantially erode its powers.

What are moral rights?

Property ownership does not necessarily convey absolute rights over the thing bought. Real estate ownership, for example, is restricted by zoning legislation. Preservation legislation recognizes society's interest in preserving its architectural treasures, despite private ownership. Similarly, moral rights legislation recognizes that art ownership is not an absolute property right.

The term moral right itself comes from the French le droit moral, an 18th century French concept referring to rights of a non-economic but spiritual or personal nature, existing independently of an artist's copyright. Such rights are based on what the court in Carter v. Helmsley-Spear, Inc. explained as "a belief that an artist in the process of creation injects his spirit into the work and that the artist's personality as well as the integrity of the work, should therefore be protected and preserved."

Moral rights include:

  1. disclosure or divulgation, which allows the artist to determine when a work is
    complete and may be displayed;
  2. paternity or attribution, which allows an artist to protect the identification of his
    name with his own work, and to disclaim it when applied to another's;
  3. the right of withdrawal, which permits the artist to modify or withdraw a work
    following publication; and
  4. integrity, which allows the artist to prevent his work from being displayed in an
    altered, distorted, or mutilated form.

Works covered by VARA:

VARA covers only limited, fine art categories of "works of visual art": paintings, sculptures, drawings, prints, still photographs produced for exhibition. Within this group, only single copies or signed and numbered limited editions of 200 or less are actually protected. VARA does not apply to any of the following: works made for hire, posters, maps, globes or charts, technical drawings, diagrams, models, applied art, motion pictures, books and other publications, electronic publications, merchandising items or advertising, promotional, descriptive, covering, packaging material or container, nor does it cover any work not subject to general copyright protection.

Rights conferred by VARA:

Of the moral rights panoply conferred by other nations, VARA recognizes only attribution and integrity as legal causes of action. Attribution includes the rights to claim authorship of a work, to prevent attachment of an artist's name to a work which he did not create, and, where there has been a subsequent distortion, mutilation, or modification of the work prejudicial to the artist's honor or reputation, the right to disclaim authorship and to prevent identification of the artist's name with the work. Congress did not define the term prejudicial to one's honor or reputation, but the House Report on VARA advised focusing on "the artistic or professional honor or reputation of the individual as embodied in the work that is protected...While no per se rule exists, modification of a work of recognized stature will generally establish harm to honor or reputation." The court in Carter v. Helmsley-Spear, one of the few cases filed under VARA, relied on expert testimony, focusing on "good name, public esteem, or reputation in the
artistic community."

Exceptions to VARA coverage:

Congress was careful to delineate several exceptions. For example, natural modifications resulting from aging or the inherent nature or quality of the materials used do not constitute statutory modification, distortion or mutilation. Similarly, modification resulting from conservation or public presentation involving lighting and placement is not a prohibited modification unless caused by gross negligence. So, for example, while some natural fading is unavoidable for textiles, excessive fading of especially fragile materials caused by overexposure to direct sunlight could trigger the statute. Similarly, the natural
melting of an ice sculpture falls into the inherent nature exception and would not trigger the statute, but loss could be prohibited separately by contract.

The rights to claim or disclaim authorship of a work and to prevent the use of one's name on a distorted, mutilated, or modified work prejudicial to one's honor or reputation do not apply to a reproduction, depiction, portrayal, or other use of a work of visual art outside the statute's limited protected class. Nor do they constitute a mutilation.

Congress also made VARA rights subject to 113(d) of the copyright law, which addresses problems arising where the work is part of a building. For example, the right of integrity does not apply if the artist either consented to the installation of the artwork before VARA's trigger date [December 1, 1990], or both the artist and the building owner executed a written agreement on or after the trigger date, specifying that installation of the artwork may subject the work to damage by reason of removal.

If the building owner wants to remove an artwork which can be safely removed, the artist's rights apply unless (1) the building owner has made a diligent, good faith but unsuccessful attempt at notification of the artist of his removal intent, or (2) the building owner did provide notice, but the artist either failed to remove the work or to pay for its removal within 90 days after receiving notice. A "diligent, good-faith attempt" involves sending notice by registered mail to the artist at his most recent address as recorded by the Register of Copyrights. This record is part of a system, established by Congress, which permits an
artist whose work is incorporated in a building to record his identity and address, with available update procedures, and similarly permits building owners to record evidence of their efforts to comply.

Another exception involves Congress' specification that the VARA rights are wholly independent of the copyright owner's exclusive rights (1) to reproduce the copyrighted work in copies; (2) to prepare derivative works based on the copyrighted work; (3) to distribute copies to the public by sale or other forms of ownership transfer, e.g., barter, or by rental, lease, or lending; and (4) to display the work publicly. While the artist retains VARA rights, these rights transfer to whoever owns the copyright in the artwork.

Congress further provided that VARA rights were subject to 107 fair use limitations on exclusive rights. If the artwork is copyrighted, there are permissible fair use purposes for which the work may be reproduced, and which constitute a defense to infringement, including "criticism, comment, news reporting, teaching, scholarship, or research." In given circumstances, artistic parody may also be a defense subject to the four-factor fair use analysis. The statute sets forth four factors which must be considered in determining whether a use is permissible: the purpose and character of the use, the nature of the copyrighted work itself, the amount and substantiality of the portion used in relation to the
copyrighted work as a whole, and the effect of the use on the potential market for or value of the copyrighted work.

Exercise of rights, including transfer and waiver:

VARA restricts the exercise of the rights of attribution and integrity to the author or joint authors of the artwork, regardless of whether he/they hold title either to the copyright or the artwork itself. Thus while both copyright and physical ownership are property rights which may be transferred, moral rights may not be transferred. Moral rights may, however, be waived. The waiver instrument must be very specific: the
creator must consent in a written and signed instrument specifically identifying the artwork, the uses of that work, and with a clause limiting the waiver to both aspects. Where the artwork is created by more than one author, any one creator's waiver binds the group.

Duration:

For works created on or after December 1, 1990, (VARA's trigger date) VARA's moral rights are granted for the life of the author, or in the case of a joint work, until the death of the last surviving author. Works created before that date, but still owned by the author on that date, are coextensive with and expire at the same time as the copyright.

Remedies:

The legal remedies available for a violation of moral rights are the same as the civil (but not criminal) remedies available for copyright infringement: injunction, impounding, damages, profits or statutory damages, costs and reasonable attorney's fees. Statutory damages range from a $500 minimum to a $20,000 maximum, increasing to $100,000 for willful infringements and decreasing to $200 for innocent infringements.

Under VARA (unlike copyright infringement), an artist has a cause of action in a federal court even if his artwork is not registered with the Copyright Office. Because the burden of proof on the artist diminishes and the amount of monetary damages could increase if an artwork is registered before an infringement, an
artist should register his copyright as soon as possible.

It's important for artists to be aware that, while VARA establishes specific federal causes of action, additional protections are often available under state statutes. In addition, they can negotiate even more expansive rights enforceable by contract. For example, an artist could negotiate a resale royalty and specify an intent to retain rights of reproduction, even though additional contractual obligations are normally limited to the first sale.

Buyers and art owners should equally understand that VARA does not intrude on the standard protections available to them through contracts to purchase or commission, but in fact allows moral rights waivers. Those entering a commission arrangement can further specify that the work is for hire, which would put the work outside VARA protection, but they must meet the other criteria for that category.

FURTHER INFORMATION:

Links for the Visual Artists Rights Act can be found at http://www.loc.gov/copyright/title17/92chap1.html#106a (basic provision) and http://www.loc.gov/copyright/title17/92chap1.html#113 (exception for artworks fixed to buildings) You can also contact the Copyright Office (http://lcweb.loc.gov/copyright) for further information. If you are an artist facing VARA issues, you may want to contact an organization such as Volunteer Lawyers for the Arts or the Washington Area Lawyers for the Arts that provides legal assistance to artists. You may also want to consult organizations in your field, such as the International Sculpture Center for sculptors.

Full Copyright law can be located at: http://www.copyright.gov/title17/92chap1.html