Look, But Don't Touch: The Consequences of Removing, Modifying or Destructing Visual Art in Buildings

A valid waiver must be in writing and must specifically identify the individual artwork to which it applies. Blanket waivers are prohibited. In the case of a work that has more than one “author,” a waiver by one effects a waiver of every author's rights. The waiver requirements do not apply to works installed prior to the effective date of VARA, June 1, 1991, and a waiver is not required for works for hire, which are excluded from VARA's protection. Under the Copyright Act, a work made for hire is “a work prepared by an employee within the scope of his or her employment.” When an individual artist is commissioned by a building owner to create and install works of art within a building, the issue of whether VARA is triggered will often depend on whether the work was a “work for hire,” which in turn depends on several factors based on the specific situation. See, e.g., Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) (trial court issued injunction prohibiting building owner from modifying, destroying, or removing artwork from building; appellate court reversed because the work was a work for hire and outside VARA protection).

Under certain circumstances VARA will prohibit property owners from demolishing work installed on their property. In Martin v. City of Indianapolis, the artist had erected a sculpture in a vacant lot that was subsequently purchased by the City of Indianapolis, which dismantled the sculpture, possibly selling it for scrap. 982 F. Supp. 625 (S.D. Ind. 1997). Even though Martin had completed his work four years before VARA became effective, Martin had established that had he maintained title to the work “during those four years and beyond the 1991 effective date of VARA.” Thus, because “VARA protection extends to those works of art created prior to the effective date in which title was held by the author as of that date,” and because the city had provided no notice to Martin regarding removal of the sculpture and did not establish a waiver, the artist was entitled to summary judgment as to his VARA claim. It is important to note, however, that VARA does not extend liability for acts that arose before VARA's effective date. See 15 U.S.C. 106A(d); Pavia v. 1120 Avenue of the Americas Associates, 901 F. Supp. 620 (S.D.N.Y. 1995) (Despite artist's continuous injury from ongoing display of mutilated sculpture, only conduct occurring after VARA's effective date of May 1, 1991 was actionable; however, decision implies that, had fracture of sculpture occurred after VARA's effective date, defendants might have been liable for displaying the disfigured sculpture.)

Whether owners of property on which works are illegally installed are subject to liability under VARA is still unsettled. One court has held that VARA does not permit an artist to prevent the removal or destruction of a work placed on another's property without authorization. In English v. BFC&R East 11th Street LLC, six artists who created sculptures in a community garden and murals on the walls of adjacent buildings, all owned by New York City, could not enjoin the city from developing the lot and destroying the works, because “VARA is inapplicable to artwork that is illegally placed on the property of others, without their consent.” No. 97 Civ. 7446, 1997 WL 746444 (S.D.N.Y. 1997). On the other hand, in Pollara v. Seymour, the court refused to dismiss a VARA claim where a property manager removed a mural displayed in a building without a permit because genuine issues of material fact existed as to whether the work was destroyed intentionally. 150 F. Supp. 2d 393 (N.D.N.Y. 2001).

While the modification of a work of visual art during conservation efforts does not trigger VARA, a building owner incurs liability when the modification is caused by gross negligence. In Flack v. Friends of Queen Catherine, Inc., due to damage to a statue during storage, the statue manufacturer hired an assistant of the artist to reconstruct the clay face, allegedly resulting in a distorted, mutilated clay model. 139 F. Supp. 2d 526 (S.D.N.Y. 2001) The artist's VARA claim alleging the manufacturer's negligent hiring of this assistant and seeking to enjoin the manufacturer and the group commissioning the statute from modifying or destroying her statue was not dismissed.

Conclusion

Building owners who install qualifying visual art in buildings may not be permitted to alter, move, or remove the artwork. It is possible that under certain circumstances, VARA might prohibit building owners from demolishing a building that contains a protected art installation such as stained glass windows, decorative floor tile or murals. Builders and owners should consult copyright counsel regarding the applicability of VARA prior to acquiring a “work of visual art.”

Unknowing building owners can incur substantial liability when incorporating certain artistic works within their buildings. The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. 106A, limits the ability of a building owner to alter, move, or remove a “work of visual art.” This article will provide an overview of this statute and its interpretation and application by various courts.

VARA applies to works of visual art, defined as “a painting, drawing, print, sculpture, or photograph (but only photographs created for exhibition purposes) existing in a single copy or a limited edition of no more than 200 copies and … meet[ing] certain specified criteria as to signature and numbering.” The statute grants creator(s) of these works the rights to prevent removal, modification, or destruction of the work under certain conditions. It also grants certain “moral rights”: “attribution,” protecting (1) the author's interest in receiving recognition for the work, and (2) the artist's right to disassociate himself from a work altered in a manner the artist deems detrimental to his reputation; and “integrity,” protecting the artist's interest in preserving the work in its original form. These rights cannot be assigned or transferred by the artist and endure for the artist's life. Even if a builder, building owner, or architect purchases the work and the copyright, the artist still retains the right to prevent the modification or destruction of the work.

The greatest concerns to builders and building owners are the special rules under VARA that apply to works of visual art, such as murals, which are “incorporated in or made part of a building.” If a work can be removed without damage, VARA still requires notice to the artist and the opportunity to remove the artwork. If the artist removes the work at his or her own expense, title in the work is conveyed back to the artist. Works that would be harmed by removal cannot be moved unless an explicit waiver is obtained from the artist.

A valid waiver must be in writing and must specifically identify the individual artwork to which it applies. Blanket waivers are prohibited. In the case of a work that has more than one “author,” a waiver by one effects a waiver of every author's rights. The waiver requirements do not apply to works installed prior to the effective date of VARA, June 1, 1991, and a waiver is not required for works for hire, which are excluded from VARA's protection. Under the Copyright Act, a work made for hire is “a work prepared by an employee within the scope of his or her employment.” When an individual artist is commissioned by a building owner to create and install works of art within a building, the issue of whether VARA is triggered will often depend on whether the work was a “work for hire,” which in turn depends on several factors based on the specific situation. See, e.g., Carter v. Helmsley-Spear, Inc. , 71 F.3d 77 (2d Cir. 1995) (trial court issued injunction prohibiting building owner from modifying, destroying, or removing artwork from building; appellate court reversed because the work was a work for hire and outside VARA protection).

Under certain circumstances VARA will prohibit property owners from demolishing work installed on their property. In Martin v. City of Indianapolis, the artist had erected a sculpture in a vacant lot that was subsequently purchased by the City of Indianapolis, which dismantled the sculpture, possibly selling it for scrap. 982 F. Supp. 625 (S.D. Ind. 1997). Even though Martin had completed his work four years before VARA became effective, Martin had established that had he maintained title to the work “during those four years and beyond the 1991 effective date of VARA.” Thus, because “VARA protection extends to those works of art created prior to the effective date in which title was held by the author as of that date,” and because the city had provided no notice to Martin regarding removal of the sculpture and did not establish a waiver, the artist was entitled to summary judgment as to his VARA claim. It is important to note, however, that VARA does not extend liability for acts that arose before VARA's effective date. See 15 U.S.C. 106A(d); Pavia v. 1120 Avenue of the Americas Associates, 901 F. Supp. 620 (S.D.N.Y. 1995) (Despite artist's continuous injury from ongoing display of mutilated sculpture, only conduct occurring after VARA's effective date of May 1, 1991 was actionable; however, decision implies that, had fracture of sculpture occurred after VARA's effective date, defendants might have been liable for displaying the disfigured sculpture.)

Whether owners of property on which works are illegally installed are subject to liability under VARA is still unsettled. One court has held that VARA does not permit an artist to prevent the removal or destruction of a work placed on another's property without authorization. In English v. BFC&R East 11th Street LLC, six artists who created sculptures in a community garden and murals on the walls of adjacent buildings, all owned by New York City, could not enjoin the city from developing the lot and destroying the works, because “VARA is inapplicable to artwork that is illegally placed on the property of others, without their consent.” No. 97 Civ. 7446, 1997 WL 746444 (S.D.N.Y. 1997). On the other hand, in Pollara v. Seymour, the court refused to dismiss a VARA claim where a property manager removed a mural displayed in a building without a permit because genuine issues of material fact existed as to whether the work was destroyed intentionally. 150 F. Supp. 2d 393 (N.D.N.Y. 2001).

While the modification of a work of visual art during conservation efforts does not trigger VARA, a building owner incurs liability when the modification is caused by gross negligence. In Flack v. Friends of Queen Catherine, Inc., due to damage to a statue during storage, the statue manufacturer hired an assistant of the artist to reconstruct the clay face, allegedly resulting in a distorted, mutilated clay model. 139 F. Supp. 2d 526 (S.D.N.Y. 2001) The artist's VARA claim alleging the manufacturer's negligent hiring of this assistant and seeking to enjoin the manufacturer and the group commissioning the statute from modifying or destroying her statue was not dismissed.

Conclusion

Building owners who install qualifying visual art in buildings may not be permitted to alter, move, or remove the artwork. It is possible that under certain circumstances, VARA might prohibit building owners from demolishing a building that contains a protected art installation such as stained glass windows, decorative floor tile or murals. Builders and owners should consult copyright counsel regarding the applicability of VARA prior to acquiring a “work of visual art.”