Visual Artists Rights Act (VARA)
In 1989, Richard Serra’s controversial Tilted Arc (1981), the site-specific, 120-foot-long, 12-foot-high massive steel sculpture bisecting Manhattan’s Foley Square, was cut into three pieces and dismantled in a single night. Mr. Serra had no recourse. The federal Visual Artists Rights Act (VARA), enacted in 1990 in the wake of the removal of Tilted Arc, was intended to prevent such an act in the future. VARA grants artists the rights to prevent intentional modification to their artworks and the destruction of a artworks of “recognized stature.” Until VARA was enacted, artists in the United States had virtually no power to protect their artworks from destruction, mutilation or misattribution.
In 2005, I represented the late Henry Segerstrom in the commissioning of Richard Serra’s “Connector,” the 66-foot-tall sculpture that is the centerpiece of the Orange County Performing Arts Center’s pedestrian plaza. Even fifteen years later, Mr. Serra was adamant about protecting his artworks from any such potential threats and negotiated every single point of the agreement accordingly.
The Berne Convention required the protection of certain so-called “moral rights” by signatory countries, and it was in response that the U.S. Congress passed VARA. Since going into effect on June 1, 1991, today’s artists have far greater protections against threats to their artworks. These rights are not absolute, however. VARA applies only to a restricted category of visual artworks, extends only limited rights, and is subject to loopholes, exclusions, and waiver provisions that substantially erode its powers.
Works covered by VARA
VARA covers only limited, fine art categories of “works of visual art.” This is restricted to paintings, sculptures, drawings, prints, and still photographs produced for exhibition. Further, only single originals or signed and numbered limited editions of 200 or less copies are protected. VARA does not apply to works made for hire, posters, maps, globes or charts, technical drawings, diagrams, models, applied art, motion pictures, books and other publications, electronic publications, merchandising items or advertising.
The term “moral rights” comes from the French le droit moral, an 18th century French concept referring to rights of a non-economic, spiritual or personal nature, existing independently of an artist’s copyright. The court in a pivotal case, Carter v. Helmsley-Spear, Inc., described moral rights as “a belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality as well as the integrity of the work, should therefore be protected and preserved.”
Attribution and Integrity
Although other countries have robust moral rights protections, VARA recognizes only attribution and integrity as legal causes of action in the U.S. “Attribution” grants artists the right to claim authorship of an artwork; to prevent the use of their names as the author of artworks not created by them; and to disclaim authorship of artwork that has undergone distortion, mutilation, or other modification. “Integrity” grants authors the right to prevent intentional distortions or mutilations that will prejudice their honor or reputation; and to prevent the intentional or grossly negligent destruction of an artwork of recognized stature. Application of these standards is fact-specific and unfortunately inconsistent.
Exceptions to VARA
VARA contains several clear exceptions. Natural modifications resulting from aging or the inherent nature or quality of the materials used do not constitute modification, distortion or mutilation under VARA. Similarly, modification resulting from conservation or public presentation involving lighting and placement is not a prohibited modification unless caused by gross negligence.
A critical issue for building owners is that VARA recognizes and protects works of visual art that have been “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work.” Examples include murals, frescoes and sculptures that have been affixed or embedded into a building’s floors, walls or ceilings. There are three ways for building owners to protect against VARA liability for artwork that has been “incorporated in or made a part of a building.”
For artwork that cannot be safely removed from the property, a building owner’s removal of the art will violate the artist’s VARA right unless the artist either consented to the installation of the work into the building before VARA’s effective date (June 1, 1991), or waived through the execution of a written instrument signed by both the artist and the building owner.
De Facto Waiver
For artwork of “recognized stature” that has been incorporated into a building, but that can be safely removed, VARA only requires that building owners make a “diligent, good faith” attempt to notify the artist of its intention to remove the work. No VARA claim will exist if the building owner provides notice, but the artist fails to remove the work or to pay for its removal within 90 days after receiving notice. As an alternative to obtaining a waiver, a building owner may require that the installation of the artwork that is to be incorporated into its building be crafted in such a way to allow for its safe dismantling and removal. An artist may want to ensure the opposite.
For artworks created on or after June 1, 1991, VARA’s rights are granted for the life of the author, or in the case of a joint work, until the death of the last surviving author. Artworks created before that date, but still owned by the author on that date, expire at the same time as the copyright expires.VARA restricts the exercise of the rights of attribution and integrity to the author or joint authors of the artwork, regardless of whether they hold title either to the copyright or the artwork itself. Moral rights may not be transferred.
Moral rights may, however, be waived. The waiver instrument must be very specific: the creator must consent in a written and signed document specifically identifying the artwork, the uses of that artwork, and a clause limiting the waiver to both aspects. Where the artwork is created by more than one author, any one creator’s waiver binds the joint authors.
The legal remedies available for a violation of VARA are the same as the civil remedies available for copyright infringement: injunction, impounding, damages, profits or statutory damages, costs and reasonable attorney’s fees. Statutory damages range up to a $30,000 maximum, increasing to $150,000 for willful infringements and decreasing to $200 for innocent infringements.
Under VARA (unlike copyright infringement), an artist has a cause of action in a federal court even if his artwork is not registered with the Copyright Office. Because the burden of proof on the artist diminishes and the amount of monetary damages increases for an artwork registered before an infringement, there is a distinct benefit for an artist to register the copyright as soon as possible.
VARA issues are important for artists, but also for property owners, developers, cities, counties, and governmental agencies. VARA applies to both private and public works of art. The law is quite technical and therefore it is imperative to confer with an attorney versed in VARA if facing any questions or claims.