Wherefore Thou Art #5
The Visual Artists Rights Act

Legally speaking, working visual artists look primarily to copyright and contract law -- these are the rules that define what the artist has to sell and how the stuff gets sold. Many visual artists don’t realize that there is another law that protects them beyond the modest protections of copyright and contract law. This law is the Visual Artists Rights Act, or VARA, an obscure but powerful law designed to protect an artist’s work and good name.

Congress quietly enacted VARA, which was buried in a judicial appropriations bill, in 1990. There wasn’t much debate about bill and so there is little in the books to show what (or whether) Congress was thinking when it enacted the law. This is strange, considering that VARA signals a fundamental shift in the very concept of private property and gives artists a provenance over their works that is without parallel in American law. You’d think something like this would have given Congress pause. But, apparently, no one was paying much attention, and, luckily for artists, VARA was born.

VARA provides that the artist has the right to have his or her name associated with a work of visual art that he or she creates. By the same token, VARA gives the artist the right to prevent the use of his or her name with art he or she didn’t create.

VARA gives the artist the right to have his or her name disassociated from the artist’s own work if that work is distorted, mutilated, or modified in a way detrimental to the artist’s reputation or honor. Perhaps, most importantly, VARA also gives the artist the right to prevent (by a court injunction, if necessary) any distortion, mutilation or modification to his or her work. Finally, for “works of recognized stature”, an artist can prevent a work’s destruction, and if the work is intentionally destroyed, an artist can collect damages, including attorney’s fees.

VARA’s application is limited to works of “visual art”, which are defined as paintings or drawings, and prints, sculptures, or exhibition photographs in signed limited editions of 200 or fewer. Visual art does not include posters, films, advertising material, or works made for hire. VARA rights are strictly personal to the artist during the artist’s lifetime, and cannot be transferred. Significantly, VARA rights follow the artwork wherever the artwork goes, and are enforceable by the artist no matter who owns the artwork.

Unlike copyright law, which is essentially an economic driver meant to encourage creativity, VARA enforces moral rights -- the protection of worthy art and of artists’ reputations. In fact, VARA is the direct descendant of the 19th Century French droit moral laws, which in turn were based on 18th Century concepts of individualism springing from the French Revolution and the writings of the German philosophers Hegel and Kant. The law is grounded in the sanctity of art and the special place the artist occupies in society. Yes, our Congress passed such a law. Something tells me Trent Lott wasn’t aware of all this when the law sailed through.

In the sketchy legislative history of the bill, there are indications that Congress needed to pass something like VARA to bring the U.S. into compliance with an international copyright treaty to which most of the nations in world already belonged. There was also a discussion of the need to prevent things like a then- recent episode in which some Australian guys bought a Picasso painting, cut it into 100 pieces, and sold each piece as an authentic original Picasso. Whatever the reasons for its passage, VARA protects art and artists in unprecedented and breathtaking ways.

The law has its critics, of course. On one side are those who feel that VARA is too limited, in that it doesn’t protect music, film and literary works, and that VARA’s protections should be perpetual rather than lasting only for the artist’s lifetime. On the other side are those who think that VARA goes too far, and creates an unacceptable taking of private property, and a particularly unacceptable burden on owners of buildings in which art is affixed or installed.

This last point has been the subject of a couple of interesting lawsuits. Applied strictly, VARA mandates that a building owner must maintain and protect art that is permanently affixed to a building until the relevant artist’s death. A few years ago, Leona Helmsley’s company bought a large building in Queens that contained a vast sculptural installation. The work covered all of the ceiling and most of the floor of the lobby and even the inside of the elevators, and was made from old tires and recycled glass, various “discarded” objects, some interactive stuff, and some sculpted thingees hanging from the ceiling meant to represent “space junk.” The theme of this work was ostensibly the dangers of not recycling, or something like that. This work, such as it was, was not particularly consonant with Ms. Helmsley’s interior decorating aesthetic. Imagine her surprise when she was told, after having bought the building, that she was stuck with the “artwork.” The artists refused to remove their masterpiece, and Leona’s company threatened to dismantle the work for them. The dispute wound up in court, where the lower court, likely correctly applying VARA, found that the sculpture had to stay. This decision was eventually reversed by an appeals court on a questionable technical point and Leona got to redecorate her building. The appeals court skillfully and purposefully avoided ruling on the fundamental point, which was that in the many situations like this, the artist’s rights will trump those of the real property owner. Which by almost any measure is a little perplexing.

Another messy and unresolved VARA issue is one I’m smack in the middle of right now: what, exactly are “works of recognized stature”, those special works of visual art that are protected from destruction by VARA? How is the term “wors of recognized stature” defined, and who decides? I represent an artist who created a large, mural-sized painting that was to be displayed at an informational booth at the Empire State Plaza in Albany. The work was critical of Governor Pataki’s budget cuts and their effect on legal services for the poor. My client installed the work in the early evening, and shortly afterwards Plaza maintenance staff, under orders from the Plaza manager, tore the work down. The work was found crumpled up in three pieces in the Plaza manager’s office. We sued. At trial, I brought in two art experts who testified that the painting (the experts had looked at pre-destruction photographs of the work) was an extraordinary example of political protest art (they invoked the names of Diego Rivera and other famous artists). Both experts concluded that, in their view, the painting was “a work of a recognized stature”. Nonetheless, the judge ruled that because my client did not have any plans to show the painting again, and because he viewed the painting as “advertising”, the painting was not “a work of a recognized stature.” We have appealed this ruling and are waiting (along with art lawyers and scholars around the country) for the appeals court to make a decision. Interestingly, we’re before the same appeals court that punted with the Leona Helmsley case several years ago.

VARA is not well known, and it’s underutilized. All artists should know that they have the legal right to protect their art and their honor. It’s a weird law, to be sure, but it sure can come in handy in the right situation.

© 2003 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.