Visual Artists Rights Research Articles

The Visual Artists Rights Act in augmented and virtual realities

The expansion of augmented reality (AR) and virtual reality (VR) has brought to light the gaps in U.S. law regarding moral rights protections in the digital age. The U.S. offers limited protection of moral rights under the Visual Artists Rights Act (VARA). Although protections are limited, AR and VR programs could violate artists’ moral rights under VARA by modifying existing art used in their programs and by not giving an artist’s work attribution. Another question that has emerged is whether VARA could protect digitally produced art. VARA is a limiting statute and narrowly defined visual art to exclude most digitally produced art. Therefore, in order for digital art to be protected under VARA, the U.S. needs to modernize the statute to fit into a digital world.

Legal protection for visual artists

AbstractIt is essential that sculptors, architects, and other three‐dimensional artists gain some familiarity with the extent and limits of intellectual property (IP) law and how it protects visual artists and their works. The main areas of IP legal protection for artists are traditional copyright law, the Visual Artists Rights Act, and the Architectural Works Copyright Protection Act. This article attempts to distill the large and complex discipline of intellectual property rights for visual artists. Legislative bodies, courts, nongovernmental organizations, international and intergovernmental institutions, and IP experts continue to struggle with the question of how to balance the public‐good benefits of legal protection for artists with the demands of commerce. From copyrights to courts to alternative resolutions and other interventions, IP is a discipline broad and intricate, but visual artists have many options, including legal, organizational, and educational opportunities, to strengthen their position.

VARA Turns Thirty-One: How Amending the Visual Artists Rights Act of 1990 to Add Guiding Language Can Further Advance the Act’s Purpose

Congress passed the Visual Artists Rights Act (“VARA”) in 1990, introducing the doctrine of moral rights into United States law. Moral rights consist of four rights: attribution, disclosure, withdrawal, and integrity. VARA recognizes the rights of attribution and integrity to preserve the integrity of artworks and of the country’s cultural heritage by encouraging artists to create. The passing of VARA has been met with criticism but also with excitement that Congress recognized the importance of artists’ non‌-economic rights. In the thirty‌-one years since the enactment of VARA, caselaw has developed that shows how courts and parties are interpreting its language. One main issue with VARA as written is that there is a lack of guidance in interpreting the standards, which has created some judicial confusion. If Congress were to amend VARA to provide more guiding language, it would give courts a clear and detailed framework when interpreting it. While some degree of flexibility must be maintained, additional guiding language would further promote VARA’s purpose and ensures fairness.

A Textualist Interpretation of the Visual Artists Rights Act of 1990

This essay provides a textualist interpretation of a relatively obscure statute, the Visual Artists Rights Act of 1990. It observes that the textualist interpretation of the statute is the opposite of the statute’s intention and purpose. And it asks whether that is a problem, or something we should celebrate.

Utilitarianism v. Deontology: A Philosophy for Copyright

The Anglosaxon copyright system is founded upon theories of utilitarianism, whereas the European system, generally upon deontology. A series of particular traits aid us at the identification of which theory a copyright system supports. For example, the management of the moral rights of authors and creators shows this difference very eloquently. In Europe, starting with the Berne Convention of 1886, authors and creators enjoy a right to paternity, a right to first publication and a right to integrity of the work; in the US, it is mainly visual artists only who enjoy similar protection, under the Visual Artists Rights Act of 1990. In the last decade or so, the European Union has proceeded with a number of copyright Directives which approach the American system much more than in the past ever thought possible. Whereas national legislations on moral rights remain intact, the 1991 Directive on Computer Programs, the 1996 Database Directive, the 2001 Information Society Directive of 2001 and the 2001 Resale Right Directive lean strongly towards the economic rationale of copyrights. The work attempts to show how this approach has occurred, at a time where no major change in philosophical thought of copyright in the European Union appears sustainable. This work also attempts to explain why the economic rationale seems to have superseded the deontological one in the EU, stressing the impact of lobbying by the copyright industries and pressure from forces outside the European Union. The work, finally, arrives at a conclusion founded upon the supremacy of the deontological reasoning behind copyright.

Law, Visual Art, and Money

This Essay explores explore areas where law and art interact, and where, it seems, money changes things. It discusses three areas of the law that encourage the creation of visual art, starting with the basic combination of property and contract, and moving to the more targeted law of copyright and, finally, the law specifically targeting the visual arts: the Visual Artists Rights Act (VARA). The essay then takes up the task of exploring the ways in which both the rights and protections offered by VARA and by copyright law are affected by commercial exploitation of visual artworks. It also examines the effect that commercial exploitation of works of art have in the context of rights of publicity. In the case of VARA, copyright’s fair use factors, and many states’ approaches to the limits on the rights of publicity, the taint of money or commercial exploitation is a cause for suspicion, inconsistent with romanticized notions of the pursuits of a true artist, and thus leads to less or no protection for the creation or the creator. In these contexts, visual art created for overt monetary gain, especially through pieces reproduced in multiple copies or used in promotions or advertisements, are just like any other commodity; no special solicitude or protection is to be given to those artworks or those artists. And, at the other end of the commercial spectrum, wild commercial success of an artist permits a court to assume a true artist, because the external art world has bestowed that judgment already and judges are relieved of having to make the determination. While judging what is art and who is a real artist is a task the law may be ill-equipped to handle, the proxy of money is only superficially appealing because it is based on an outdated and romanticized notion of who is an artist and, ultimately, what is art.

They Can’t Take that Away from Me: An Indemnification Solution to Unmerited VARA Claims

Artist Cady Noland rose to prominence during the art market boom of the 1980s with mixed-media installations that employed found imagery to comment on the darker side of American social identity. Her work has garnered the highest price ever paid at auction for the work of a living female artist. Despite critical and commercial success, Noland has expressed deep concern over what she considers the improper handling and presentation of her art by collectors, auction houses, and museums. She has likened the auction process to “cutting up a writer’s words and throwing them up in the air,” further stating, “[i]f I had known that everything would be flipping at auction, I would have made works that were impervious.” Noland’s idiosyncratic behavior likely would have remained art world gossip had she not become embroiled in several highly publicized lawsuits. Noland stopped creating new works altogether in 2001 and refuses to facilitate any exhibitions devoted to her career. For nearly two decades, she has spent her time monitoring older works and recently appeared to have discovered a method that may halt continued resales. In 2012, Noland began renouncing authorship of works that she is known to have created but which have allegedly deteriorated to the point that she no longer approves of them as “her art,” resulting in multiple legal actions.5 Because an artist’s acknowledgement rather than her hand typically defines whether a work is considered “original,” Noland’s disavowals have the potential to render her art unsaleable, inflicting financial harm upon the collectors who currently own the pieces. Who should absorb this sudden loss in value? This Note argues that market participants should be indemnified against legally baseless revocations of attribution by living artists. Noland justifies her disavowals under the Visual Artists Rights Act of 1990 (“VARA”), the American answer to the French concept of droit moral or moral rights.8 Moral rights provide artists with control over the integrity and attribution of their art even after it has been sold. In a narrow set of circumstances, VARA permits a living artist to disavow her works if they have been modified so extensively as to be prejudicial to the artist’s reputation (excepting changes caused by aging or conservation). But there is a dearth of case law defining terms like modification, prejudice, and reputation. Even among Noland’s disavowals there is variation: she revoked authorship of the aluminum print Cowboys Milking because she perceived wear on its corners, and of the wooden building facade Log Cabin because conservators allegedly rebuilt the entire piece without permission. Noland is one of relatively few artists to bring lawsuits under VARA, and research for this Note has uncovered no cases of an owner or other stakeholder suing an artist for improperly invoking VARA. Even if a party were to sue Noland for abusing VARA and successfully obtain an injunction forcing her to legally affirm authorship of a work, this would likely not remedy the market damage caused by her public disavowal. No matter the conclusion of a court, collectors are unlikely to invest millions of dollars in art unsupported by its creator. Unfortunately, moral rights law in the United States has not yet addressed this situation. This Note proposes that the indemnification solutions contained in the droit moral provide a possible solution to the problems that result when an artist disavows her art without legal cause.

Authors in Disguise: Why the Visual Artists Rights Act Got it Wrong

In the civil law tradition, moral rights protection is justified on the ground that a work of creative authorship reveals the author’s individual process of creativity and artistic autonomy. Thus, given the infusion of “self” that occurs by virtue of the authorship process, an author should be entitled to claim certain personal guarantees such as the right of attribution and the right of integrity, which allow an author to prevent modifications to her work that are inconsistent with her artistic vision. Some critics are troubled, however, by the very concept of moral rights.

Commercializing the Digital Canvas

Over the past two decades, a series of trends in constitutional and intellectual property have significantly reshaped the impact of traditional intellectual property laws for the art community. Attribution of a work to the artist and protection of the integrity of a work from alternation are historical bedrocks of artistic protections, but those protections have been diminished for digital artists. The Visual Artists Rights Act excludes digital works from the definition of works of visual art, thus excluding these works from rights of attribution and integrity. At the time, rights of attribution and integrity were seen as quasi-trademark rights, and artists were protected under the Lanham Act. Since then, however, the Supreme Court has extended copyright’s preemption over trademark, undermining an artist’s ability to have non-contractual protections for the artist’s identity and integrity in a work. In addition, a second trend within the digital environment has created additional tensions for artists whose works include celebrities, athletes, or other members of the public. The Supreme Court has made the clear determination that video games are entitled to complete First Amendment protection, placing those works in the same category as film, publishing, and works of art. Despite this free speech protection to the medium, a series of inconsistent decisions among state and federal courts have made unclear when the use of a person’s likeness in a video game—or video art instillation—would constitute a violation of the person’s rights of publicity.

CAUTION-Contains Extremely Offensive Material: <em>David Wojnarowicz V. American Family Association</em>, The Visual Artists Rights Act, and A Proposal To Expand Fair Use To Include Artists’ Moral-Rights

CAUTION-Contains Extremely Offensive Material: <em>David Wojnarowicz V. American Family Association</em>, The Visual Artists Rights Act, and A Proposal To Expand Fair Use To Include Artists’ Moral-Rights

Protecting Artistic Vandalism: On Graffiti and Copyright Law

Does copyright law protect graffiti? Preserving graffiti art and protecting it against unauthorized reproductions are growing concerns in the art scene. This article argues that copyright law covers graffiti works because copyright is neutral towards works created by illegal means. As copyright is a right over the intangible aspect of the work only, it does not exclude works created by illegal means. This is true even under an incentive-based copyright system such as the United States Copyright Act: copyright does not give incentives to commit illegal acts; it just gives incentives to create valuable artistic works, regardless of the means with which the work is created.This article analyzes the challenges that artists face in enforcing their rights in their graffiti, under the Copyright Act and the Visual Artists Rights Act (VARA). Graffiti offers a unique case study to understand copyright's nature and scope.

Massachusetts Museum of Contemporary Art Foundation v. Christoph Büchel: An Appellate Perspective on the Visual Artists Rights Act

When the U.S. Congress passed the Visual Artists Rights Act (VARA) in 1990, no legislator really anticipated that courts would be applying the act to art installations that were only half-finished. But this was the very challenge that the U.S. Appellate Court for the First Circuit faced in Massachusetts Museum of Contemporary Art Foundation, Inc. v. Christoph Büchel. Deliberating over a failed football-field-sized art installation wryly entitled “Training Ground for Democracy,” the appellate court was asked to determine whether VARA protected Swiss artist Büchel's moral rights in his half-finished work that if completed would have given viewers “training to be an immigrant, training to vote, protest, and revolt, training to loot, training [in] iconoclasm, training to join a political rally, training to be the objects of propaganda, training to be interrogated and detained and to be tried or to judge, training to reconstruct a disaster, training to be in conditions of suspended law, and training various other social and political behaviors.”

Theme et VARAations: Why the Visual Artists Rights Act Should Not Protect Works-In-Progress

Many countries recognize rights, which allow artists some level of control of their art after it is sold, for example by guaranteeing that their work’s authorship is acknowledged and that it cannot be modified without their permission. In contrast to Europe, where they have long existed, these have only been broadly recognized in American law since 1990, when Congress enacted the Visual Artists Rights Act (VARA). Although other parts of VARA have received extensive scholarly attention, one question that has been essentially overlooked is whether VARA applies to unfinished works of art. This is surprising, because it has been central in some of the most well-known VARA decisions. Until very recently, those opinions that could have weighed in on the issue have also avoided it. But given how often the issue arises, courts could not avoid it forever, and in late January of 2010, the United States Court of Appeals for the First Circuit decided in Massachusetts Museum of Contemporary Art v. Buchel, No. 08-2199, 2010 WL 297834 (1st Cir. Jan 27, 2010), that VARA fully applies to works-in-progress, from the first stroke of the artist’s brush onward. Although some authors have rejected the doctrine of rights wholesale, that is most decidedly not the aim of this paper. Instead, its central argument is that VARA does not (and should not) apply to any works-in-progress, regardless of whether these works would (or should) be protected in finished form. Although this implies that that MassMoCA was wrongly decided, the argument is much broader. Indeed, the MassMoCA opinion’s cursory analysis belies the fact that the question of works-in-progress is very complex. Accordingly, this paper examines VARA’s statutory history, contemporary art theory, and the economic underpinning of the unique American moral-rights framework and concludes that they all suggest no VARA protection for works-in-progress. Further, this reading is (counterintuitively) most consistent with the statute’s aim to protect artists’ moral rights. Unlike with completed art, rights in unfinished works are protected existing legal remedies.

Moral Rights: Diagnosis and Rehabilitation

The United States offers some of the strongest intellectual property laws in the world. Why then does U.S. law grant such weak moral rights protection? The answer is not simply political apathy. Rather, it stems from a long-standing perception that moral rights conflict with fundamental American cultural, historical, and legal traditions. The first part of this manuscript presents a brief history of moral rights law. The next part examines the varying forces that have contributed to the poor reception of moral rights in the United States. After an examination of the limited protection of the Visual Artists Rights Act, the paper shows that moral rights are more compatible with American socio-legal theory than currently believed. This article concludes that the more harmoniously moral rights are viewed, the more likely courts will interpret them less restrictively and Congress will offer less resistance to expanding moral rights protections.

Dead on the Vine: Living and Conceptual Art and Vara

The Visual Artists Rights Act of 1990 (VARA), arriving in the wake of U.S. adherence to the Berne Convention, provides moral rights of integrity and attribution to artists who have created certain copyrightable physical works of visual art. Since - and before - the time of VARA’s enactment, however, many artists have been working with genres and media to produce art that is not comfortably accommodated within the scope of protected works contemplated by VARA. An increasing number of recent works of Conceptual and Appropriationist Art raise questions about fixation and original expression that are required for copyrightability that, in turn, is required for protection under VARA. This article discusses the uncomfortable fit of VARA and many contemporary works of art, and particularly those that incorporate to a significant extent living works in their natural state. The discussion focuses on the recent decision in a dispute involving a VARA claim in a living landscape (Chapman Kelley v. Chicago Park District, N.D. Ill., 2008). It concludes that works of art in which nature and chance play a dominant role are Conceptual works in which the artist’s contribution is limited to ideas that should not be protected by copyright or VARA.

Visual Artists Rights Act Analyzing the Moral Right of the Artist and the Public

Richard Serra's Tilted Arc, a controversial piece of public art, was inconspicuously taken down by the United States General Services Administration. The Cor-ten steel arc was dismantled and placed in a storage warehouse in Brooklyn, New York. A year and a half later, the United States Congress passed the Visual Artists Rights Act (VARA), protecting artists and their work from public destruction. Because an artist's identity is associated with the work itself, the destruction or modification of work in public spaces is now protected by law. The question is posed, would Richard Serra's Tilted Arc, have been protected if the controversy began after the enactment of the Visual Artists Rights Act? This paper will look at both sides of the enacted law, and whether the law is beneficial to public as well as the artist.

Moral Rights: Diagnosis and Rehabilitation

The United States offers some of the strongest intellectual property laws in the world. Why then does U.S. law grant such weak moral rights protection? The answer is not simply political apathy. Rather, it stems from a long-standing perception that moral rights conflict with fundamental American cultural, historical, and legal traditions. The first part of this manuscript presents a brief history of moral rights law. The next part examines the varying forces that have contributed to the poor reception of moral rights in the United States. After an examination of the limited protection of the Visual Artists Rights Act, the paper shows that moral rights are more compatible with American socio-legal theory than currently believed. This article concludes that the more harmoniously moral rights are viewed, the more likely courts will interpret them less restrictively and Congress will offer less resistance to expanding moral rights protections.

Copyrights, moral rights, and the end of the right of attribution under US trademark law

In the spring of 2003, the United States Supreme Court was presented with what appeared to be the relatively simple issue of whether the provisions of the U.S. Trademark Act (“the Lanaham Act”) prohibiting “false designations of origin” could be used to prevent the copying of creative work without giving attribution or credit to the original producers of the work. The Supreme Court, in Dastar v. Twentieth Century Fox Film Corp., incorrectly held that the relevant provision, section 43(a), was incapable of identifying the parties or entities that were the origin of “communicative content” because “origin of goods” as used in the provision only applied to the producers of the tangible physical objects. The holding in Dastar goes against over 50 years of precedent, literal statutory language, and legislative history. Prior to the Dastar opinion, plaintiffs had been successful in cases involving unauthorized edits of recordings, television programmes, stories, omission of co-author's credit, and even imitation of artistic style by asserting that under trademark law the incorrect attribution or credit was a “false designation of origin”. That avenue is no longer open. All attribution right under the Copyright Act, however, is quite limited in scope and only applies to “works of visual art” a definition that was included as part of the Visual Artists Rights Act of 1990 (VARA). As discussed in this article, the provisions of VARA were never intended to pre-empt or supersede other laws related to attribution. The Supreme Court ignored the distinction between trademark law and copyright law. The two are not mutually exclusive. Dastar Film Corp. v. Twentieth Century Fox Film Corp. is one of the most important cases in the United States intellectual property law in years. Congress should rectify the doctrinal wrongs wrought by the Supreme Court so that credit is given where and when credit is due.

Buyer Beware: The Unexpected Consequences of the Visual Artists Rights Act

Buyer Beware: The Unexpected Consequences of the Visual Artists Rights Act

The Visual Artists Rights Act of 1990

The Visual Artists Rights Act of 1990