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Can I Stop a Buyer from Destroying My Artwork?

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.

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