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

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.