The Visual Artist Rights Act (VARA) is an amendment to the US Copyright Act of 1976, added in 1990 by Congress, that became the first federal law to protect an artist’s moral rights to their artwork (Robinson).
Congress failed to pass legislation before VARA that directly placed protections at the federal level because of the assumed sufficiency that pre-existing laws were enough to protect an artist’s moral rights. America’s joining of the Berne Convention (BC) treaty in 1988 (Robinson) was considered a great advancement for the US in its intellectual property relations with the world due to BC’s long established presence in making regulations with the primary goal of protecting works of authorship (Iglendza). Joining BC was a national interest for the US. It ensured a formidable presence and control in the global economy, as well as guaranteed the ability to participate in the creation and direction of international copyright policy, thus protecting the US from piracy costs and detrimental changes in policy (Iglendza). Therefore, membership to the BC alone was thought satisfactory to ensure the satisfaction of artist’s rights, but federal laws still did not expressly reflect compliance with BC’s ideals recognizing artist’s moral rights. With the artistic community still outraged at a lack of protection, many states began to create acts that, while closely familiar to what VARA became, protected rights similar to preservation and reputation in lieu of a federal alternative (Robinson). California created the California Art Preservation Act (CAPA) and several states followed with versions protecting artistic moral rights (Robinson). But, many believed that the Copyright Act already sufficiently protected artists, along with state laws such as defamation, invasion of privacy, and contract law (Iglendza). But all of these had primary interests that ignored giving priority to specific protections toward the artists themselves and instead, for example in the Copyright Act, protect the copyright owner (Iglendza). Many groups did not want a more limited interpretation of copyright protection (Robinson). “Powerful industry groups, including motion picture, newspaper, and magazine industries, opposed moral rights” and were concerned that the enactment of moral rights would conflict with the traditional ways in which these groups marketed their works (Iglendza). Industry opposition convinced Congress to narrow how it defined a work of art (Iglendza) to solely cover the fine arts: paintings, sculptures, drawings, prints, and still photographs for exhibitions, and exclude editions of more than 200, works made for hire, and mass marketing projects such as movies, books, and packaging (106a). This decision was made to “protect the legitimate interests of visual artists without inhibiting the rights of copyright owners and users, and without undue interference with the successful operation of the American copyright system” (Iglendza). So, by maintaining the copyright interests of corporations, VARA was narrowed in its scope of protection, but still written with a framework that gives artists greater protections than previously acknowledged. VARA was also further justified by Congress to be acting out of a need to preserve national culture through said protected artwork (Iglendza). VARA was signed into law by President Bush in 1990 with cultural preservation, artistic integrity, and corporate protection in mind (Robinson).
The two moral rights that VARA addresses include the right of an artist to claim authorship and the right to prevent destruction of their piece. Moral rights refer to a “non-economic, but spiritual or personal nature, existing independently of an artist’s copyright,” under the belief that “an artist in the process of creation injects his [personality] into the work… [and] should therefore be protected” (Esworthy). With these beliefs of personality and the aforementioned interests in subsequent cultural preservation, VARA primarily allows artists to claim authorship and “prevent the use of [their] name as the author of any work of art which [they] did not create” (106a). Secondly, VARA allows for the integrity of artists’ work to be protected against any intentional distortion, mutilation, modification, and prevent negligence or otherwise destruction of their pieces (106a). These moral rights also include giving artists discretion in deciding when a work is complete and displayed, along with the right to modify or withdraw a work from its following publication (Esworthy). If protected, VARA gives artists an unalienable right to maintain these standards of integrity for their piece even after it is not in their possession anymore (Robinson). One is also not allowed to invoke VARA if changes to the work occur as a result of the passage of time by nature of the materials or if the rights to the work’s protection were waived in their contract (106a).
There is no governing body that monitors VARA, therefore an artist’s rights can only be exercised if they personally sue their offender, requiring money and time that is often difficult for artists without many resources to fully exercise their rights. The system is based off of personal advocacy if one feels their moral rights under VARA have been violated, and contract negotiations, or the more common verbal agreement, are costly and harder for lesser known artists to defend against companies and in the courtroom. The process of determining if a right has been violated begins with defining if the work at stake is in fact a work of art, then followed by concrete evidence to determine which or if specific rights of the artist’s moral integrity have been violated. This evidence should present the artist’s intentions for their work and outline how their subjective art falls into the strict categories of qualifications and exceptions. VARA does not require courts are to give damages to the artist (Mass. Museum of Contemporary Art Found., Inc. v. Buchel), but that is common to have in addition to their original lawsuit. Issues of protecting work under VARA began over hired versus independent working relationships, but quickly evolved into a larger problem over ownership and defining the competing interests of artists and corporations.
Since the implementation of VARA in June of 1991, its fallacies have become clearly biased towards protecting corporations through limiting language over protecting the interests of the art itself. While VARA intends to protect artists and the work they make with the hopes of cultural preservation (Iglezada), none of the cases I examined protected the artist, but instead fell to the many exceptions within the act. Of the 309 cases that cite VARA in Nexis Uni’s database, only three of them have been decided as positively following the rules of VARA. These three cases did not protect the artworks or the artists themselves, but instead proved the very exceptions (no allowed artistic control over works made for hire, copies greater than 200, or work made specifically for advertising purposes) to be effectively enforced. Also, many other cases are dismissed as invalid because they fail to meet the standards of how an artwork, and/or its location of work, is defined and owned by the guidelines of VARA’s traditional language. The many exceptions and limited language of VARA’s coverage make it difficult to protect the wide range of circumstances, and also common abuses of artwork, that emerge between a corporation and an artist.
Carter v Helmsley-Spear, the first court case to invoke VARA, negates all other rights that were violated under VARA due to the artists’ status as employees of the firm and not as independent contractors. Despite the art being violated under VARA (integrity, potential destruction, etc.), the case is disqualified because of the artist’s working relationship to the building owner. The destruction of works made for hire is still present in the 2019 case of Pollara v Seymour; the artist had no right to protect the integrity of her work because it was paid for and made for advertising purposes. The issue of ownership is constantly a battle for how VARA has to define and protect the artwork without also infringing on the rights of a company or property owner.
This power of the corporation versus the artist manifests much more painfully in site-specific artwork as one of the ambiguous fallacies of VARA. As a determined principle from the subsequent Phillips v Pembroke decision, “VARA’s objective “is not . . . to preserve a work of visual art where it is, but rather to preserve the work as it is.” Therefore, there is no language in VARA to protect site-specific works, and therefore does not account for context that is becoming ever more important in modern art. In Phillips v Pembroke Real Estate, an artist designed sculptures specifically for a public park, but since they could not be considered one piece of art in court, they could not be protected against removal under new management. Even though the artist argued that the removal of the art from its intended environment would lose its significance, the court’s inability to recognize the park as one artwork therefore made it not site-specific, and fell under the public presentation exception of VARA. This states that “the modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence” (Phillips v Pembroke). Therefore, while Phillips’ pieces could not be altered or mutilated as individual works, Pembroke, the owner of the land, did have a right to move the sculptures. VARA also has a similar building exception where art attached to the building is not protected within the artist’s rights and is therefore subject to the property owner’s discretion (106a). Pottier v Hotel Plaza used the decision from Phillips v Pembroke and the building exception to allow Hotel Plaza to replicate, remove, and relocate their hotel bar mural without artist consent. The court decided that the integrity of the artist was not jeopardized in its replication, and the language of VARA does not provide site-specific qualifications to prevent a relocation of the artwork.
The situational limitations of VARA also caters to the ideal of art gallery pieces, therefore limiting experimental and progressive creations that might challenge these conventional notions of an artwork, making it harder for new modes of expression to be freely explored because it will not be covered by VARA as it is (Thurston). This traditional language also makes it much easier for a court to decide a piece is in fact a work of art if that piece or the artist are well known within the community. If an artist is lesser known, it puts most of the process of deciding the character of the artwork on the court, quite easily creating indirect problems of bias towards already reputable artists (Thurston) and relying on objective qualifications.
Many have supported the decision to not protect works made for hire and site-specific works, saying that the artist cannot have complete control over their artwork and/or the surrounding environment after the work is acquired. (Thurston). Therefore, it will be hard to place limits on the corporation’s rights as lawful owners to a piece of land that the artist does not share. The artist cannot ever be fully protected, but the original intent of the piece and its protection against destruction should be a consideration that VARA does not currently assess well, especially in the language concerning site-specific works and relocation.
Therefore, the language of VARA not only needs to change to focus less on ‘what art should be’ but also employ a panel that applies art theory and cultural values to the court’s final decision. VARA was created with the intent to protect art’s cultural value, therefore deciding its right to protection deserves to be reviewed through the same lens. Specific language also needs to be incorporated to address the circumstances surrounding lawful removal and relocation of the works. A review panel will allow for a larger conversation on what makes a visual work of art and allow for opinions to be heard outside of courtroom pragmatism, possibly reaching a different, faster, or more complete opinion of why or why not a work should be covered under VARA, and accordingly set appropriate precedents for future cases. This broadening review and specific language will mean less ambiguity for artists and corporations, and account for the evolution of the field as new techniques and circumstances emerge.
Works Cited
106a. Rights of certain authors to attribution and integrity, Chapter 1: Subject Matter and Scope of Copyright. https://www.copyright.gov/title17/92chap1.html#106a. Accessed 4 Oct. 2019.
Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303. USDC for S. Dist. of NY, 31, Aug.1994. 94 Civ. 2922 (DNE).
Robinson, Christopher J. . The “Recognized Stature” Standard in the Visual Artists Rights Act, 68 Fordham L. Rev. 1935 (2000).
Esworthy, Cynthia. A Guide to the Visual Artists Rights Act, 1992. http://www.law.harvard.edu/faculty/martin/art_law/esworthy.htm.
Iglendza, Marko. Moral Rights Protection Under the Visual Artists Rights Act of 1990: The Judicial Interpretation in Carter v. HelmsleySpear, 5 DePaul J. Art, Tech.& Intell. Prop. L.187 (1995).
Mass. Museum of Contemporary Art Found., Inc. v. Buchel, 539 F. 3d 38. USCA 1st cir. 27, Jan. 2019. No. 08-2199.
Phillips v. Pembroke Real Estate, Inc., 459 F. 3d 128. USCA 1st cir. 22, Aug. 2006. No. 05-1970.
Pollara v. Seymour, 206 F. Supp. 2d 333. NDNY. 30, May. 2002. No. 99-CV-923.
Pottier v. Hotel Plaza Las Delicias, Inc., 379 F. Supp. 3d 130. USDC for Dist. Puerto Rico. 9, May. 2019. Civil Action No. 3:18-01378-WGY.
Thurston, Natalia. Buyer Beware: The Unexpected Consequences of the Visual Artists Rights Act, Berkeley Technology Law Journal, Vol.20:701, (2005).
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