IP News

In a victory for several aerosol artists and for what are commonly referred to as "moral rights," the Second Circuit Court of Appeals gave its seal-of-approval to the legal framework applied in a substantive decision on the Visual Artists Rights Act of 1990 (VARA). In Castillo v. G&M Realty, L.P., the Second Circuit affirmed a $6.75 million judgment against a real estate developer for willfully violating VARA rights for 45 works of visual art. Nos. 18-498-cv (L), 18-538-cv (CON), 2020 U.S. App. LEXIS 5228 (2d Cir., Feb. 20, 2020). The lower court's finding of willfulness increased the maximum amount of statutory damages the defendant could be liable for by a factor of five, and then it awarded the maximum amount of damages possible. While the case expounds upon a body of law seldom explored, it also serves a sobering reminder to litigants on just how much their candor can impact credibility and damages. In particular, the court found that "if not for [the defendant's] insolence, these damages would not have been assessed." Cohen v. G&M Realty, L.P., 320 F. Supp. 3d 421, 447 (S.D.N.Y. 2018) (Cohen II). By affirming the decision, the Second Circuit and lower court have created a framework to evaluate a work's "recognized stature," as required by VARA.

VARA and 'Moral Rights'

VARA amended original copyright protections to add two "moral rights," which commonly exist in European countries for works of visual art. See, Robert J. Sherman, Note, The Visual Rights Act of 1990: American Artists Burned Again, 17 Cardozo L. Rev. 373 (1995). Works of visual art include aesthetically creative works that exist in a single copy or limited edition copies of 200 or fewer. See, 17 U.S.C. §101. VARA afforded authors of these works two categories of rights beyond that of typical copyright protection. The first is the right of attribution, i.e., an artist's right to claim authorship and prevent incorrect attributions of authorship. The second is the right of integrity i.e., an artist's right to prevent intentional destruction of their work. See, 17 U.S.C. §106A(a). Both rights exist regardless of ownership of the work and are afforded the same damages — actual and statutory — as other copyrighted works. See. 17 U.S.C. §106A(b); Cohen II, 320 F. Supp. 3d at 429-430. Statutory damages range from $750-$30,000 for each work and that amount can be increased in the cases of willfulness up to $150,000 per work. See, 17 U.S.C. §504.

A copyright infringement analysis, however, varies greatly from VARA infractions in two key aspects. First, VARA infractions do not require the copyright holder to register the work before filing a lawsuit. Second, the right to "prevent any destruction of a work" is only afforded to works "of recognized stature," meaning only certain works can qualify under the statute. 17 U.S.C. §106A(a)(3)(B). At issue in Castillo was whether or not aerosol works created by artists who knew their works would eventually be destroyed could nonetheless obtain such stature and the appropriate legal framework to use in evaluating whether a work had sufficiently obtained stature. Previously, neither the Second nor the Ninth Circuit (often seen as the most influential circuits with respect to copyright law) appellate courts had occasion to determine the appropriate legal framework to evaluate stature.

Other Cases Discussing Recognized Stature Under VARA

The Southern District of New York had once before substantively considered whether or not a work of visual art was one "recognized stature." In Carter v. Helmsley-Spear Inc. the court created a two pronged-test to create the framework for stature. 861 F. Supp. 303 (S.D.N.Y. 1994)¸ aff'd in part and rev'd in part, 71 F.3d 77 (2d. Cir. 1995) The first step requires that the work in question demonstrates "that the visual art in question has 'stature[,]' i.e.[,] is viewed as meritorious." The second step is "that this stature is 'recognized' by art experts, other members of the artistic community, or by some cross section of society." Id. (citing Carter, 861 F. Supp. at 325).