The Visual Artists Rights Act of 1990, or VARA, is placed in Title 17 of the US Code, which contains the Copyright statutes, in sections 101, 106A, and 113. However, VARA has nothing to do with copyright. Rather, for the first time in federal law in the United States, this statute recognizes the “moral rights” of attribution and integrity. These rights have long been protected in European countries, where other moral rights are also protected and moral rights descend to the artists’ heirs. While an important development, VARA protects only a narrow, statutorily defined subclass of the visual arts, as defined in 17 U.S.C. §101.
“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.
A work of visual art does not include —
(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 [a work created for an employer]; or
(C) any work not subject to copyright protection under this title.
Thus, VARA does not protect all literary and artistic work. VARA does protect two important moral rights. First, it provides a right of attribution to authors of works of visual art. Attribution includes two related rights: (1) “to claim authorship of that work” and (2) “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.” Works created under a pseudonym are not protected under VARA.
Second, VARA provides a right of integrity, giving the author of a work of visual art “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.” There is no requirement that the work be of a recognized quality or stature. This structure relieves an author from having to establish these factual elements when suing for an injunction under VARA to prevent any such modification, or when suing for damages resulting from any such distortion, mutilation, or modification already committed.
Finally, VARA grants the author of a work of visual art, adjudged to be of “recognized stature,” the right to prevent the destruction of that work. VARA defines “any intentional or grossly negligent destruction of that work [as a] violation of that right.” This provision should serve to relieve an artist of the burden of proof when a protected work is intentionally damaged by its owner. Works of art incorporated into buildings can be trouble for both the artist and the owner of the building. The right to prevent the destruction, distortion, mutilation of a work by removing it from the building is restricted and can be waived, deliberately or unintentionally by the artist. For the owner of the building, if the artist’s VARA rights do apply, the owner must make a diligent, good faith attempt without success to notify the artist/author of the work. Alternatively, the owner of the building may move or remove the piece if the artist/author was contacted and appropriately notified of the building owner’s plans, and within 90 days of receiving the notice, the artist does not remove the work or pay for its removal. 17 U.S.C. §113(d)(2)
Unlike federal copyright statutes, VARA does not preempt or replace state statutes where the state statute provides more protection. VARA does preempt state law that is less extensive. Prior to VARA, 11 states had statutes recognizing some version of moral rights. Since VARA, three additional states have enacted such statutes. A list is provided below.
However, exceptions in the VARA provisions and the prevalence of artists being required to contract away their rights under VARA to obtain commissions, has made VARA less and less relevant. A search at the beginning of February 2015 revealed no cases involving VARA decided in 2014, only one reported case and one unreported case decided in 2013, one unreported case in 2012, and 5 reported and unreported cases in 2011. The most important and widely cited VARA cases were decided within a few years of passage.
Moral rights under VARA cannot be transferred, but can be waived. If the work was created on or after June 1, 1991 VARA rights endure for the life of the author. This is unlike copyrights, which endure for the life of the author plus 70 years. However, it is curious that VARA rights do extend to the life of the author plus 70 years if a work was created before June 1, 1991 and the author/artist did not transfer title to a work (sell or assign ownership) prior to June 1, 1991. If the author did transfer title to a work (sell or assign ownership) prior to June 1, 1991, that artist has no VARA rights at all.
State Statutes Protecting An Artist’s Moral Rights
1. CaliforniaCal. Civ. Code § 987 – California Art Preservation Act of 1979
2. ConnecticutConn. Gen. Stat. Ann. § 42-116s, 116t –
3. IllinoisIll. Rev. Stat. Ann. Ch. 815 § 320
4. LouisianaLa. Rev. Stat. Ann. § 51:2151
5. MaineMe. Rev. Stat. Ann. tit. 27, § 303 (1988)
6. MassachusettsMass. Gen. Laws Ch. 231, § 85S
7. NevadaNev. Rev. Stat. Ann. Ch. 597.720
8. New JerseyN.J. Stat. Ann. § 2A:24A
9. New MexicoN.M. Stat. Ann. § 13-4B-2 (1988)
10. New YorkN.Y. Arts & Cultural Affairs Law § 14.03
11. Pennsylvania, Pa. Cons. Stat. Ann. 73 P.S. § 2101
12. Rhode IslandR.I. Gen. Laws § 5-62-2
13. South DakotaS.D. Codified Laws § 1-22-16
14. UtahUtah Code Ann. § 9-6-409
*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.