The State of California enacted the California Art Preservation Act (CAPA) of 1979, eleven years before the United States Congress enacted the Visual Artists Rights Act (VARA). CAPA was intended to protect the works of California visual artists. An understanding of VARA is critical because the supremacy clause of the U.S. Constitution provides federal law preempts state law. To the extent these laws conflict, the terms of VARA shall apply. However, there are some differences between VARA and CAPA which are critical to artists and businesses dealing with artwork in the State of California.
Differences – VARA and CAPA
There are some significant differences between VARA and CAPA. Therefore, in California a different set of rules applies to the treatment and sale of artworks. Before getting into a discussion, here are the highlighted differences:
Single Original vs. Multiples
CAPA refers specifically to “fine art,” which is described as “an original painting, sculpture, drawing, or an original work of art in glass of recognized quality, but shall not include work prepared under contract for commercial use by its purchaser.” CAPA only applies to singular original works and does not protect multiple copies of a work. VARA does protect multiple copies with certain stipulations as set forth in the law.
CAPA is limited to works “of recognized quality,” which may be consistent with VARA’s “work of recognized stature.” Whether a work of art is “of recognized quality” or a “work of recognized stature will be decided by the court. A court may find that there is a difference between art of recognized quality and art of recognized stature. While the term “quality” seems to apply more to the nature of work of art itself, the term “stature” appears to apply to the work’s or artist’s reputation.
Removal or Destruction of Artwork
In situations where a sculpture, mural or fountain has been integrated into a building structure, VARA provides that if the building owner wants to alter or tear down the structure, the owner must contact the artist in writing and allow the artist ninety days to remove it, at the artist’s expense. CAPA provides for the same ninety-day period, however if the mural cannot be removed without damage, the owner can proceed to destroy it without notice. CAPA also provides that if the artist and the owner enter into a written contract signed by both parties and recorded in the appropriate county recorder’s office, then the owner must make a good-faith attempt to notify the artist or the artist’s heirs prior to removal.
A right of attribution grants an artist the right to claim authorship of a work of art, or in appropriate circumstances to disclaim authorship. If a work has been altered or displayed in a manner inconsistent with the artist’s wishes, the artist might want to disclaim authorship. Both VARA and CAPA contain the moral right of attribution, however there is different specific language regarding attribution which could result in different outcomes depending upon which law is applied by the court. The biggest distinction is that CAPA may be enforceable after an artist’s death. During the artist’s life the validity of CAPA is mostly suspended (because VARA preempts CAPA during the artist’s lifetime). However, upon the artist’s death and for the fifty years thereafter, CAPA is valid and enforceable by the beneficiaries or representative of the artist.
Under VARA, an artist has two related rights of integrity: (1) the right to prevent intentional distortion, mutilation or other modification of the work which is prejudicial to his/her honor or reputation, and (2) the right to prevent destruction of a work of “recognized stature.” In category 1, an artist can prevent intentional distortion or mutilation, but not destruction. If the work is not “of recognized stature,” the work may be destroyed without violating the artist’s rights of integrity under VARA. There is no such two-tiered approach under CAPA. If the work qualifies as a work of “recognized quality,” then it cannot be intentionally altered or destroyed. Neither VARA nor CAPA protects against damage caused by ordinary negligent acts.
Although most artists and businesses involved in art believe that VARA and CAPA are essentially the same law, there are distinct differences that should be analyzed in the event an artwork is damaged, altered, distorted, or removed from a building.