UNITED STATES LAW'S FAILURE TO APPRECIATE ART: HOW PUBLIC ART HAS BEEN LEFT OUT IN THE COLD.

• Author: Stewart, Emma G.

INTRODUCTION

Art is an integral mode of communication, identification, and innovation. (1) Artworks in public spaces in particular contribute to societal and cultural expression, especially because works of public art and their messages are accessible to all. (2) With heightened accessibility, however, comes a heightened need for protection. Public art's increasing popularity and visibility through projects like Banksy's viral graffiti art; (3) Anish Kapoor's popular Cloud Gate (commonly referred to as "The Bean") in Chicago; (4) and Kristen Visbal's Fearless Girl, appearing on Wall Street overnight on International Women's Day, (5) have generated much interest on the topic of public art and both its values and challenges. (6) Amidst calls to recognize and protect pieces of public art, this Note focuses on the needs of public artists, whose personal and moral rights were for the first time protected, (7) albeit incompletely, with the passing of the Visual Artists Rights Act (VARA). (8) Public art's unique nature and complex, difficult-to-define attributes mean that offering legal protection to artists is both absolutely essential and exceedingly challenging. (9) While the law has made strides in enacting protections for visual artists and their work, (10) the exclusionary, strictly defined contours of these laws are an ill fit for the amorphous and evolving field of public art. As a result, many artists who create public artworks are left with inadequate legal protection or, oftentimes, no protection at all. (11) At the heart of this unfortunate gap in legal protection lie attempts by Congress and the courts to articulate a satisfactory definition of art. These legal definitions of art determine which pieces will be considered protectable art in the eyes of the law, and are of necessity narrower than artistic reality. (12) As a result, the legal definition of art in any given context will depend upon the purpose of the statute and a balancing of competing interests. (13) The difficult exercise of creating a satisfactory legal definition of art is well demonstrated through visual art's problematic definition in the context of artists' moral rights, (14) particularly when viewed through the unique lens of public art. It is public artists that are perhaps most in need of moral rights, and yet the work of these artists is often ignored by and excluded from the legal definition of art in VARA. And this is despite the rise of public art in cultural importance and popularity. (15) An adequate definition of art must, in the case of public art, appropriately balance the interests of public artists, community members, and property owners. Instead, VARA's definition of visual art, and the resulting limited reach of the Act, denies artists basic, minimal protections, and weighs heavily in favor of those who own the property on which their works are displayed. (16) This imbalance undermines VARA's purpose and has resulted in the devastating loss of many precious public artworks. (17)

Section I of this Note will provide a history of both the legal and artistic developments of public art. Next, Section II will identify and discuss crucial problems with the way that VARA defines and limits visual art that prevent the statute from providing adequate protection to public artists. Section III will then compare the definition of visual art found in VARA to other attempts to define art both artistically and legally. Finally, in Section IV, this Note proposes removing unnecessary limitations on VARA's definition of visual art and expanding it to resemble copyright's definition of visual art. In order to recognize and protect artists who create the works that define the culture and spirit of communities across the country, (18) VARA must be made more inclusive of public art.

1. HISTORY

   1. Legal Development

      In general, "[t]he law of copyrights is the single most important area of visual arts law." (19) "Copyright protection allows a creator to profit economically from his or her investment of time, skill, and energy by giving a limited monopoly in his or her work." (20) Rather than broadly discussing copyright protection, codified in the Copyright Act, (21) this Note focuses more narrowly on the development and protection of an artist's moral rights, or "right[s] given to an artist to assert limited authority over a work of art even after the art is sold or transferred." (22) Unlike the economic protection provided by copyright law, moral rights were created to protect an artist's honor and reputation. (23) This separate moral protection is based on the idea that "[a]n artist's professional and personal identity is embodied in each work created by that artist," and thus "[e]ach work is a part of his or her reputation ... [and] is a form of personal expression (oftentimes painstakingly and earnestly recorded)." (24)

      The concept of an artist's moral rights was first codified in French civil law. (25) The bundle of moral rights protects artists primarily through the inclusion of four rights: (1) the right of disclosure, or the right to control when a work is published, if at all; (26) (2) the right of attribution, or the right to claim and disclaim authorship; (27) (3) the right of integrity, or the right to prevent intentional modification of a published work; (28) and finally, (4) the right of withdrawal, or the right to remove a work from the public. (29) While not widely recognized, moral rights may also include protection from excessive criticism and attacks on an artist's personality. (30)

      Moral rights are incorporated into the Berne Copyright Convention, which requires its members to protect artists' moral rights at a minimal level. (31) In response to the increased recognition of moral rights around the world, the United States became the Berne Convention's eightieth member on March 1, 1989. (32) To minimally comply with the obligations of the convention, Congress passed VARA in 1990, with an effective date of June 1, 1991. (33) Upon its passage, VARA became the first federal copyright law in the United States to protect certain moral rights of artists. (34) This was groundbreaking for the artistic community, as federal copyright laws had previously protected only an artist's economic rights. (35) Despite the fact that VARA is nearly three decades old, it has recently returned to the public spotlight after the Eastern District of New York's decision to award substantial money damages to creators of the destroyed 5Pointz murals (36) in Cohen v. G & MRealty L.P. (37) The Second Circuit affirmed the decision in a major victory for public artists. (38)

      Modeled after the protections provided by the Berne Convention, VARA incorporates two of the previously described moral rights, the right of attribution and the right of integrity, into federal copyright law. (39) The Act achieves this by protecting an artist's right to choose when to claim ownership of an artwork, (40) and by protecting artists' work from "intentional distortion, mutilation, or modification" that is damaging to their honor or reputation. (41) In addition, for works of recognized stature, VARA provides further protections preventing destruction. (42) These moral rights are waivable but not transferable, and last for the lifetime of the artist. (43) As a whole, VARA affords protection only to a narrowly defined category of works of visual art. (44) This shortcoming and its impact on public artists is the focus of this Note.

   2. Artistic Development

      In order to understand VARA's strengths and weaknesses in protecting the moral rights of artists, an analysis of public art and its history is illuminating. Through recognizing the importance of art in public spaces, this Note seeks to find an appropriate balance between the needs of artists creating modern public art, and the landowners and communities that own and use the spaces into which the art is incorporated.

      1. The Importance of Public Art

         The law must protect the rights and interests of the artists who create public art in order to foster their artistic freedom and creativity, and subsequently the development of public art. Accessible artistic expression plays an important role in individual freedoms, democracy, and shared cultural identities in communities. (45) More concretely, there is also an economic value to public art. (46) A city with public art attracts young, creative, and educated people; communicates that the city is vibrant, innovative, and diverse; and even appeals to tourists. (47) Art, exemplified through the dynamic and functional nature of public art, "cultivates] and sustain[s] human culture." (48) Public art is a growing commodity in many communities and has become an integral part of urban development. In fact, not only does public art play a role in building the culture of a community, some community cultures are built around public art. (49)

      2. What Is Public Art?

         A complete, precise definition of public art, with all its variations, is impossible to articulate. (50) One attempt at a working definition identifies four broad categories of public art:

         Public art is art outside of museums and galleries and must fit within at least one of the following categories: 1) in a place freely accessible or visible to the public: in public', 2) concerned with, or affecting the community or individuals: public interest', 3) maintained for or used by the community or individuals: public place', 4) paid for by the public: publicly funded. (51) After recognizing that public art can come in many forms, another definition distinguishes public art from other types of art:

         What distinguishes public art is the unique association of how it is made, where it is, and what it means. Public art can express community values, enhance our environment, transform a landscape, heighten our awareness, or question our assumptions.... Public art is a reflection of how we see the world--the artist's response to our...