How Effective Has VARA Been?

The Visual Artists Rights Act of 1990 (VARA) was enacted as an amendment to copyright law for the United States to really get on board with the International Berne Convention for the Protection of Literary and Artistic Works (first accepted by signatories in 1886 but not ratified by the United States until 1988). Finally, hardworking American authors of original works of fine art would be granted a few “moral rights.” That was the promise. But where are we, 25 years in? What artists are granted these rights, and what stands in the way of exercising them?

VARA, codified at 17 U.S.C. '106A, grants the author a series of (waivable) rights: To be given attribution; to disclaim authorship in the event of mutilation; to prevent mutilation; and to prevent destruction of works of recognized stature. An artist will retain copyright and VARA rights even when the physical work has been sold, in most cases.

In a straightforward VARA case, the sole author of a recognized work would likely see a cause of action arise when the work was destroyed intentionally without notice. Exceptions and gray areas abound.

To the extent that today's fine artists receive legal educations (frequently in partnership with Volunteer Lawyers for the Arts agencies nationwide), VARA is a prime takeaway. When artists move into gentrifying neighborhoods and respond to RFPs to install public artwork, VARA is on their minds. Artists who know about VARA hope it will apply to them if something goes wrong: If the mural is painted over with an advertisement or the sculpture is destroyed, there is a remedy. Right?

The Serra Case

Every fine artist knows about Richard Serra. In the decade leading up to the enactment of VARA, the renowned sculptor installed “Tilted Arc” in front of the Javits Federal Building in Manhattan, NY. Serra accepted the commission only after being reassured of its permanence. The sculpture, a Cor-Ten steel commentary, made the metaphorical problem of public access to government a literal one, by diverting foot traffic around the massive installation.

Outrage ensued.

The General Services Administration (GSA), which had commissioned Serra's most ambitious work to date for $175,000, had it removed for an additional $50,000. The sculpture that was once so provocative now had nothing to say when removed from the context of the site. It was sliced up and stored in defeated stacks.

But Serra, well-known and respected by those testifying in his favor (including contemporaries Claes Oldenburg and Keith Haring) had no recourse. The U.S. Court of Appeals for the Second Circuit noted that Serra was not even “constitutionally entitled to a hearing before the sculpture could be removed” as the government had full control over the expression it had purchased ' and if it was aesthetically displeasing, the work could be destroyed. See, Serra v. United States General Services Administration, 847 F.2d 1045 (2nd Cir 1988).

More outrage ensued.

Serra refused to display Tilted Arc ever again as it had lost all meaning. The GSA began commissioning upbeat, less threatening work to embellish, rather than comment on, federal sites.

The next year, VARA passed, and with it came a new hope. Going forward, an artist would have not only economic, but moral rights: attribution and integrity.

In attempts to enforce these moral rights, however, artists encounter roadblocks. VARA's most powerful protections won't apply to every work of visual art installed after June 1, 1991. The art must be important enough to obtain “recognized stature” status to gain protection against destruction. The stature standard requires a showing that the art is viewed by “art experts, the art community or society in general” as possessing stature.

This fluid definition allows for VARA to preserve new forms of art. In a recent development in a set of VARA cases the art law world has been watching for years, a question of fact arises regarding whether graffiti art at the famous (now demolished) 5 Pointz building in Queens, NY, may be of recognized stature. If so, the artists may see legitimate VARA claims arising from the destruction of the building and/or whitewashing the work.

VARA rights, if applicable and not waived, last for the life of the artists (regardless of who owns the physical artwork). To be enforceable, a VARA waiver requires a written instrument including identifying details of the work and uses of the work and clearly stating that partial or total alteration or destruction may occur. Waivers are common.

Even those artists who don't explicitly waive their VARA rights may find they have given a de facto waiver. Owners of the work have to make a good-faith attempt to contact the artist prior to some forms of alteration or destruction. Artists are infamous for being tough to nail down, so maintaining a working address with the Copyright Office can ensure any notice is received in time to take action under VARA.

Damages Under VARA

Should the work be of the correct type and rights unwaived, damages could be awarded or settled upon. In 2008, mural artist Kent Twitchell settled a VARA case for destruction of his giant “Ed Ruscha Monument” for a record $1.1 million. But despite Twitchell's happy press statement that the result will benefit other artists, the settlement under several legal theories (including California's more protective California Art Preservation Act) does not guarantee similar protection for other artists.

Lastly, even if all other elements are in place for a VARA claim, if the work is made for hire (as defined by the statute and the courts), no VARA rights will attach.

Conclusion

VARA was proposed by Sen. Ted Kennedy to address inadequacies in the domestic code, and to protect the rights and works of American artists both at home and abroad. Unfortunately, 25 years into its life it seems that VARA is unreliable. An attorney reviewing a commissioning or purchase agreement cannot rely on moral rights. The attorney must help the artist to demand corresponding contractual rights, and instruct the artist on how to police and enforce them. Artists taking commissions that explicitly request a waiver of VARA rights, or which are billed as a work for hire, must be counseled carefully about the consequences up front.

Miriam DeChant is the director of legal services at the Arts + Business Council of Greater Philadelphia, where the Philadelphia Volunteer Lawyers for the Arts program provides pro bono legal assistance to the region's creative industries. This article also appeared in The Legal Intelligencer, the Philadelphia-based ALM sibling of Entertainment Law & Finance.

The Visual Artists Rights Act of 1990 (VARA) was enacted as an amendment to copyright law for the United States to really get on board with the International Berne Convention for the Protection of Literary and Artistic Works (first accepted by signatories in 1886 but not ratified by the United States until 1988). Finally, hardworking American authors of original works of fine art would be granted a few “moral rights.” That was the promise. But where are we, 25 years in? What artists are granted these rights, and what stands in the way of exercising them?

VARA, codified at 17 U.S.C. '106A, grants the author a series of (waivable) rights: To be given attribution; to disclaim authorship in the event of mutilation; to prevent mutilation; and to prevent destruction of works of recognized stature. An artist will retain copyright and VARA rights even when the physical work has been sold, in most cases.

In a straightforward VARA case, the sole author of a recognized work would likely see a cause of action arise when the work was destroyed intentionally without notice. Exceptions and gray areas abound.

To the extent that today's fine artists receive legal educations (frequently in partnership with Volunteer Lawyers for the Arts agencies nationwide), VARA is a prime takeaway. When artists move into gentrifying neighborhoods and respond to RFPs to install public artwork, VARA is on their minds. Artists who know about VARA hope it will apply to them if something goes wrong: If the mural is painted over with an advertisement or the sculpture is destroyed, there is a remedy. Right?

The Serra Case

Every fine artist knows about Richard Serra. In the decade leading up to the enactment of VARA, the renowned sculptor installed “Tilted Arc” in front of the Javits Federal Building in Manhattan, NY. Serra accepted the commission only after being reassured of its permanence. The sculpture, a Cor-Ten steel commentary, made the metaphorical problem of public access to government a literal one, by diverting foot traffic around the massive installation.

Outrage ensued.

The General Services Administration (GSA), which had commissioned Serra's most ambitious work to date for $175,000, had it removed for an additional $50,000. The sculpture that was once so provocative now had nothing to say when removed from the context of the site. It was sliced up and stored in defeated stacks.

But Serra, well-known and respected by those testifying in his favor (including contemporaries Claes Oldenburg and Keith Haring) had no recourse. The U.S. Court of Appeals for the Second Circuit noted that Serra was not even “constitutionally entitled to a hearing before the sculpture could be removed” as the government had full control over the expression it had purchased ' and if it was aesthetically displeasing, the work could be destroyed. See, Serra v. United States General Services Administration, 847 F.2d 1045 (2nd Cir 1988).

More outrage ensued.

Serra refused to display Tilted Arc ever again as it had lost all meaning. The GSA began commissioning upbeat, less threatening work to embellish, rather than comment on, federal sites.

The next year, VARA passed, and with it came a new hope. Going forward, an artist would have not only economic, but moral rights: attribution and integrity.

In attempts to enforce these moral rights, however, artists encounter roadblocks. VARA's most powerful protections won't apply to every work of visual art installed after June 1, 1991. The art must be important enough to obtain “recognized stature” status to gain protection against destruction. The stature standard requires a showing that the art is viewed by “art experts, the art community or society in general” as possessing stature.

This fluid definition allows for VARA to preserve new forms of art. In a recent development in a set of VARA cases the art law world has been watching for years, a question of fact arises regarding whether graffiti art at the famous (now demolished) 5 Pointz building in Queens, NY, may be of recognized stature. If so, the artists may see legitimate VARA claims arising from the destruction of the building and/or whitewashing the work.

VARA rights, if applicable and not waived, last for the life of the artists (regardless of who owns the physical artwork). To be enforceable, a VARA waiver requires a written instrument including identifying details of the work and uses of the work and clearly stating that partial or total alteration or destruction may occur. Waivers are common.

Even those artists who don't explicitly waive their VARA rights may find they have given a de facto waiver. Owners of the work have to make a good-faith attempt to contact the artist prior to some forms of alteration or destruction. Artists are infamous for being tough to nail down, so maintaining a working address with the Copyright Office can ensure any notice is received in time to take action under VARA.

Damages Under VARA

Should the work be of the correct type and rights unwaived, damages could be awarded or settled upon. In 2008, mural artist Kent Twitchell settled a VARA case for destruction of his giant “Ed Ruscha Monument” for a record $1.1 million. But despite Twitchell's happy press statement that the result will benefit other artists, the settlement under several legal theories (including California's more protective California Art Preservation Act) does not guarantee similar protection for other artists.

Lastly, even if all other elements are in place for a VARA claim, if the work is made for hire (as defined by the statute and the courts), no VARA rights will attach.

Conclusion

VARA was proposed by Sen. Ted Kennedy to address inadequacies in the domestic code, and to protect the rights and works of American artists both at home and abroad. Unfortunately, 25 years into its life it seems that VARA is unreliable. An attorney reviewing a commissioning or purchase agreement cannot rely on moral rights. The attorney must help the artist to demand corresponding contractual rights, and instruct the artist on how to police and enforce them. Artists taking commissions that explicitly request a waiver of VARA rights, or which are billed as a work for hire, must be counseled carefully about the consequences up front.

Miriam DeChant is the director of legal services at the Arts + Business Council of Greater Philadelphia, where the Philadelphia Volunteer Lawyers for the Arts program provides pro bono legal assistance to the region's creative industries. This article also appeared in The Legal Intelligencer, the Philadelphia-based ALM sibling of Entertainment Law & Finance.