orangenius
Industry Moral Rights

Can I Stop a Buyer from Destroying My Artwork?

VARA
Chicago Garden Drawing by Chapman Kelley

The Visual Artist’s Rights Act of 1990 – VARA

Take these scenarios from an article by Cynthia Esworthy, at Washington and Lee University:

  • You are a sculptor. On commission, you create a bronze frieze for a city park. A year later, you discover that the center of the frieze has been covered by a copy of the city seal. Can you force the city to remove the seal?
  • You are a well-known painter. You discover that a company that has purchased one of your canvasses is advertising one-inch square portions of it so that buyers can “own an original painting” by you. Can you stop them?
  • You are an airport. You commission a giant mobile, specifically designed for the interior of your central terminal. You would like to relocate the mobile to the exterior front entrance of the terminal, which will require weatherproofing, removal of the motor and rendering the mobile stationary, and repainting it to match the color scheme. Can the artist prevent the move or modifications?
  • You are a photographer. You discover that a limited edition triptych you created and sold has been separated into three pieces for resale. Can you require that the art is sold as a whole?
  • You are a county arts agency. You commission a mural to be placed on the side of a county building. You later discover that a state law requires you to build a handicapped access ramp blocking the lower part of the mural. Can you paint over the lower part of the mural?

In 1990, Congress tried to answer these questions with the implementation of the Visual Artist Rights Act. VARA was the first attempt to grant protection to moral rights in an artists work. Many countries had already granted these rights, and it was enshrined in the Berne Convention, the international agreement on copyright.  As a signatory, the U.S. created VARA to comply with those rules. Let’s take a look at some of the points.

First, what are moral rights? The idea is that artists put their spirit and personality into a work and therefore, the works should be protected from changes or destruction. Article 6 of the Berne Convention says this:

Independent of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author’s honor or reputation.

That means an artist can:

  • decide when a work is complete and can be displayed;
  • ensure that their name is always attached to the work, or not if they desire;
  • modify or withdraw a work after publication; and
  • prevent their work from being altered, distorted, or mutilated;
  • protect against destruction of works that have a “recognized stature.”

But these extra rights only apply to fine art works.  Specifically, VARA applies only paintings, sculptures, drawings, prints, or still photographs that are produced for exhibition, and are only single copies or limited editions of less than 200.  If the work is created after 1990, then the rights last until the author dies.  If it is a work from before 1990, then they last as long as the copyright.

The courts have further defined some limitations in their cases.  These limitations are far from exhaustive but are only highlights:

  • VARA does not protect ornamentation affixed to utilitarian objects.  If you look at the entire piece as a whole and find it to be strictly utilitarian rather than artistic, VARA does not apply.
  • Works-Made-for-Hire are not protected.
  •  The concept of intentional distortion, mutilation or modification of a work where such would prejudice the artist’s honor, or reputation has been given more flexibility as far as defining honor, reputation and modification.
  • VARA will protect against destruction of “a work of recognized stature,” but an artist must show that the art community, or society in general, view the work as possessing such stature, but it does not have to rise to the level of a Picasso.
  • Refusal to allow completion of a work is not a distortion, mutilation or modification.
  • An artist can sue to protect his/her moral rights without registering the work with the Copyright Office.
  • As with other actions brought under the Copyright Act, the Court, in its discretion, can award attorney’s fees and costs to a prevailing party in a suit litigated under VARA.

Finally, one last development in limitations on VARA is the important decision of the 7th Circuit in Kelley v. Chicago Park District.  In 1984, Chapman Kelley, a recognized landscape painter, created what he called “living art,” in a Chicago Park.  The work consisted of thousands of flowers, the size of two football fields, that would bloom at different times, creating a unique living artwork.  With the permission of the Chicago Park District, Kelley personally financed the project and maintained it with the help of volunteers.  In 2004, the Park District wanted to build a new structure at the location and asked Kelley to reconfigure the flowerbeds.  Kelley refused to approve the change.  The Park District did it anyway, cutting the area by half and moving the flowers in an entirely new configuration.  Kelley sued to have the site returned to its state as part of his moral right to not have his worked altered.

The Court concluded that Mr. Kelley’s work was not a work of art.  They stated:

“Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed.”

The result is that a work of art made from living material is automatically disqualified from copyright protection because the use of living materials comes from nature and because it has the potential for change. VARA has implications for so many artists, particularly street artists which I will discuss in future articles, but I hope this article provides a helpful overview of these extended rights.

What do you think about moral rights and the Kelley decision?  Let me know.  And please share this article if you found it useful. 

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.

Add Comment

Click here to post a comment

Your email address will not be published. Required fields are marked *

The Latest From Artrepreneur

  • Art Walks Put California on Parade

    For most Californians, walking yields to driving as the main mode of transportation. Driving is such a driving force for the state’s residents that “Saturday Night Live” created a recurring sketch about soap opera characters […]

  • The Future is Bright, Say Art Entrepreneurs

    According to a new report by the Strategic National Arts Alumni Project (SNAAP) the old adage of the struggling artist may officially be a myth. SNAAP’s special report, “Career Skills and Entrepreneurship Training for […]

  • Artist Profile: Natalia Nakazawa — Art, Work, and Life

    Natalia Nakazawa is a visual artist who works in mixed media to create paintings, tapestries, and collages. Her latest installation was displayed in a window of the iconic art deco Clocktower Building in Brooklyn’s DUMBO neighborhood. The […]

  • Art Business Conferences for the Art Entrepreneur

    Are you on your way to becoming a thriving art entrepreneur? Check out these upcoming art business conferences to increase your chances for success! The post Art Business Conferences for the Art Entrepreneur appeared first on Artrepreneur. […]

  • Eight Artist in Residence Programs to Launch Your Career

    We’ve previously reviewed how important it is to craft a bio and resume that details your art career, and today we’ll discuss one essential element that’s sure to make your career stand out: the Artist in Residence. Artist in […]

  • Write an Artist Bio to Get Noticed

    Most artists are used to expressing themselves in creative ways, but fewer understand the importance of expressing who they are in words. In this article, we'll review the creating an artist bio while offering some useful tips on its content. The […]

  • Balancing a Full-Time Job with Fulfilling Creativity

    Need more time in your day to work on creative endeavors? Here are few ideas that may help. The post Balancing a Full-Time Job with Fulfilling Creativity appeared first on Artrepreneur. […]

  • Launching an Art Startup? These Online Resources Can Help.

    Launching your own art startup can be scary. Here are a few tips and online resources that may help. The post Launching an Art Startup? These Online Resources Can Help. appeared first on Artrepreneur. […]

  • Expanding Your Art Business Beyond You [Part 2]

    Are you ready to expand your art business? Here's what you need to know about hiring and terminating employees, employee retirement plans and vacation and sick leave. The post Expanding Your Art Business Beyond You [Part 2] appeared first on […]

  • You Don’t Have to be an Artist to Work with Art

    Just because you don’t possess any artistic abilities – or just because you haven’t made it as an artist yet – doesn’t mean you can’t have a creative, art-filled career. There are plenty of “art […]

  • Expanding Your Art Business Beyond You

    Artists successfully running their own art business may be ready to hire an employee. We've covered everything you need to know, from tax requirements to insurance obligations. The post Expanding Your Art Business Beyond You appeared first on […]

  • What Photographers Need to Know About Shooting People [with Cameras]

    In this article, we'll review a key example of publicity and privacy issues, and what you need to know to keep your photography in the clear. The post What Photographers Need to Know About Shooting People [with Cameras] appeared first on […]

  • Getting What You Want: Basic Negotiation Tips For Creatives

    Selling and negotiating can be very intimidating. Fear not! Here are some common sense tips to negotiation that can help you get what you want. The post Getting What You Want: Basic Negotiation Tips For Creatives appeared first on Artrepreneur. […]

  • How to Sell Art [Without Being Annoying]

    Most artists will tell you that the hardest part of their job is trying to sell their artwork to the masses. Sure, they love the creativity and the freedom being an artist provides, but how can they make a living unless they sell their work? While […]

  • Museums Deck the Halls with Holiday Cheer for All

    Check out seasonal exhibits from some of the country’s top art museums. The post Museums Deck the Halls with Holiday Cheer for All appeared first on Artrepreneur. […]

  • Why Galleries Should Get Down with Art Fairs [A Useful Guide]

    As we're winding down from celebrating Art Basel Miami Beach, we're thinking about all the different ways galleries and artists can benefit from participating in these international art fairs. The post Why Galleries Should Get Down with Art Fairs [A […]

  • Your All Access Pass to Art Basel

    Dying to tackle Art Basel Miami Beach, but not sure where to start? You won't want to miss these stunning displays of the best of contemporary art. The post Your All Access Pass to Art Basel appeared first on Artrepreneur. […]

  • Get Your Networking on at Miami Art Week

    Miami Art Week is the perfect time for artists to network and gather contacts to keep building an art business. Check out five events primed to bring new opportunities. The post Get Your Networking on at Miami Art Week appeared first on Artrepreneur. […]

  • The Garment District: From Buttons and Bows to a Home for Art

    The Garment District Alliance has worked hard to evolve the area from a faded industrial center to a revitalized business district committed to bringing art to the streets. The post The Garment District: From Buttons and Bows to a Home for Art […]

  • United States of the Art: Six Destinations for the Great American Road Trip

    A cross-country road trip provides plenty of opportunities to create art. The post United States of the Art: Six Destinations for the Great American Road Trip appeared first on Artrepreneur. […]

  • How Does a Photography Business Make Money?

    Photographers are uniquely positioned within the art world to earn money through various revenue streams. Here's how you find work. The post How Does a Photography Business Make Money? appeared first on Artrepreneur. […]

  • The Basics of Insurance Part II: Health Insurance for Artists

    In this article, we’ll a type of insurance that you’ll want to think about as you build your art business – health insurance for artists. The post The Basics of Insurance Part II: Health Insurance for Artists appeared first on […]

  • The Emergence of the Creative Entrepreneur

    The term “starving artist” has long been part of our lexicon, signifying the significant struggle artists face bringing their creative work to market. For the lucky few that survive until they have paid their dues, the career can be […]

  • Seth Godin and Marketing for the Art World

    A good marketing strategy can help grow a business if done well. Let Seth Godin show you how to be a modern marketer in his skillshare video series. The post Seth Godin and Marketing for the Art World appeared first on Artrepreneur. […]

  • These Five Companies Put the Art in Startup

    Technology and art are intersecting in more ways than ever, and today’s art startups are revolutionizing the way art is consumed and collected. Entrepreneurs have been intersecting art and technology since the start of the .com boom. Portfolio […]

  • The Art Museum In The Digital Age

    I talked with Steve Konick, Director of Public Relations and Marketing for the Currier Museum of Art, in Manchester, New Hampshire, to understand why art museums are still relevant The post The Art Museum In The Digital Age appeared first on […]

  • Should I Open a Corporation for My Art Business?

    About 375,000 visual artists claim to be self-employed yet many don't realize that their personal assets can be at risk. Find out how opening a corporation can help protect you. The post Should I Open a Corporation for My Art Business? appeared […]

  • Model Citizens and Protected Images: Work-for-Hire and Right of Publicity

    Last week, we discussed model releases, and an example concerning a model whose image was being used by a company in a more liberal manner than what had originally been agreed upon by the model and the company. You may recall that in this instance, […]

  • Does Copyright and Trademark Law Protect 3D Printing?

    3D printing is a relatively new art form is sweeping the internet and worrying designers and Hollywood executives alike. Along with the advent of 3D printing, a steady stream of piracy and copyright infringement cases have been reported by industry […]

  • Consider this tip before signing an International Art Contract

    Most art galleries participate in art fairs throughout the year. Many of those fairs are international, such as Art Basel Switzerland or the Hong International Art Fair. International art fairs are an excellent way to position your gallery in […]

  • Six Steps to Safer Image Sharing

    Despite the unfortunate reality that image sharing on the Internet can lead to misappropriation of your work, there are some steps that can minimize the risks. The post Six Steps to Safer Image Sharing appeared first on Artrepreneur. […]

  • Does Freedom of Speech Protect Taking Photos of People Through Windows?

    Fine art Photographer Arne Svenson spent a year secretly taking photos of the Fosters, a family living across the street from his home. Does the Foster's Right to Privacy outweigh Svenson's Freedom of Expression? The post Does Freedom of Speech […]

  • Four Reasons Artists Should Hire Lawyers

    Think artists can't afford to hire lawyers? Actually, artists can't afford to not have one by their side. Here's four reasons why. The post Four Reasons Artists Should Hire Lawyers appeared first on Artrepreneur. […]

  • Death and Taxes: Save Millions Through Careful Estate Planning

    Artists and collectors can minimize estate taxes on artworks by employing a planning strategy and understanding the complexities involved with assessing the work's fair market value. The post Death and Taxes: Save Millions Through Careful Estate […]

  • Can You Spot a Fake? The Trouble with Authenticating Art

    What are the challenges for collectors in authenticating artworks? What are the legal remedies when a purchased artwork is discovered to be a forgery? The post Can You Spot a Fake? The Trouble with Authenticating Art appeared first on Artrepreneur. […]