A visual art law you had better not overlook.

• Author: Camber, Rachel A.

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 [sections] 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...