THE VISUAL ARTISTS RIGHTS ACT

IVAN HOFFMAN, B.A., J.D.


        If you are an artist or an owner of art, you should be aware of a law protecting certain rights of the artist in and to his or her works.   These rights exist independent of the artist’s rights of copyright and indeed apply to the artist even if the artist is not the copyright proprietor.

The Statute

        17 USC section 106A is known as the Visual Artists Rights Act of 1990 (VARA).   The statute provides as follows:

(a) Rights of Attribution and Integrity.- Subject to section 107 [Ed. Note: the fair use section] and independent of the exclusive rights provided in section 106, the author of a work of visual art-
(1) shall have the right-
(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

        The rights above mean that the artist has the right to be known as the author of the work and that his or her name cannot be used as the author of any work he or she did not create.
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
        The above right allows the artist to have his or her name removed from a work he or she created in the event that the work is distorted or otherwise changed as indicated when the process of doing so would be harmful to the artist’s honor and reputation.
(3) subject to the limitations set forth in section 113(d), [Ed. Note: the provisions dealing with the destruction of a building etc. containing a work of visual art] shall have the right-
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

        The above sections allow an artist to prevent the indicated acts provided that those acts harm the artists honor or reputation.   Subsection (B) above however, is limited to works of “recognized stature.”  However, the statute later says that modification of a work of visual art that results from the mere passage of time or the “inherent nature of the materials” is not subject to the above provisions, nor is any modification that results from the conservation of the work nor which arise as a result of the public presentation of the work unless such acts are the result of “gross negligence.”

        The rights of the artist as to works created on or after the effective date of the VARA exist until the end of the calendar year in which the artist dies.  However, as to those works created prior to the said effective date but as to which the title has not passed from the artist prior to that date, the rights last for the duration of the rights of copyright (read “When Do Copyrights Expire?”) As to works created by joint authors, the rights expire at the end of the calendar year of  the death of the last surviving artist.

        Further, the rights granted to artists cannot be transferred to another party since they are granted only to the artist and the transfer of title to the actual work of visual art does not operate as a transfer or waiver of any of these rights unless there is an express, written waiver by the artist.  Conversely, the waiver of any of these rights does not operate as a transfer of title to the underlying work nor to any rights of copyright in the underlying work unless the artist expressly agrees in writing.

Some Limitations

        There are some significant limitations on the above rights, however, and they are contained in the act itself and in the definition sections of the Copyright law.  That law says, in part:

A “work of visual art” is--
(1)  a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

        Most significantly, the concept of a “work of visual art” does not include the following kinds of art:
(A)     (i)  any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii)  any portion or part of any item described in clause (i) or (ii);

(B)  any work made for hire; or

(C)  any work not subject to copyright protection under this title.

        The impact of the exclusions above is significant since VARA provides that the inclusion of a work of visual art in any of the kinds of uses set forth in (A) is not deemed a “destruction, distortion, mutilation, or other modification” of that work of visual art and thus an artist cannot use VARA to prevent such use.  Further, any work that is done by the artist as a work made for hire (see the various articles on my site dealing with that topic.  Click on “Articles for Writers and Publishers”) is also not covered by VARA.

Conclusion

        All rights granted to one segment of a society, in this instance artists, necessarily restrict the rights of another segment, in this instance the owners of certain art.  It is so under laws of copyright, trademark and so on as well as laws that do not deal with intellectual property issues.

        The rights embodied in VARA (and indeed broader rights than those) have been recognized within the European Union for many years.  The motivation for passage of VARA may have been to bring the United States more in line with the EU in that regard but even on a more commercial level, protecting the creative process and creators, under VARA and other laws, adds economic value to the society.  Intellectual property is, after all, today’s means of production.

© 2002 Ivan Hoffman.  All Rights Reserved.

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

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