VARA 101. Ashlye M. Keaton, Esq. 2012

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1 VARA 101 Ashlye M. Keaton, Esq. 2012

2 Visual Artist Rights Act (VARA) Photo: Street Painter by Pedro Simoes, Courtesy

3 Visual Artist Rights Act (VARA) Moral Rights Overview Visual Artists Rights Act (VARA) Rights of Integrity and Attribution

4 Moral Rights Droit Moral Country of Origin: France

5 Moral Rights Droit Moral Affects artist's character as opposed to direct economic recourse Ensures credit to artists Recognized in more than 80 countries Codified in 1928 Berne Convention Recognized by U.S. per 1990 Visual Artists Rights Act (VARA) Some State statutes enforce some moral rights

6 Moral Rights Droit Moral Right to Create or to refrain from creating Right to Disclosure Right to Withdraw Right to/from Excessive Criticism Right to Integrity Right to Name Attribution

7 Moral Rights Droit Moral The Right to Integrity Prevention of destruction, distortion alteration Interest in protecting its original form

8 Visual Artists Rights Act (VARA) Effective 1990 Adopted by Congress and made part of domestic legislation as an extension to the U.S. Copyright Act Follows policies set forth by within the Berne Convention framework Extends rights of attribution and integrity to Authors

9 VARA and Moral Rights In passing Visual Artists Rights Act (VARA), Congress for first time provided for protection of artists' moral rights under Copyright Act. Carter v. Helmsley-Spear, Inc., S.D.N.Y.1994, 861 F.Supp. 303, 33 U.S.P.Q.2d Photo: Graffiti: Star Wars; Yoda Along the Sungai Klang, Kuala Lumpur, Copyright Tan Meng Chwen, Courtesy

10 VARA was made part of the U.S. Copyright Act Title 17 U.S.C. Section 106(A). Rights of certain authors to attribution and integrity Photo: Courtesy

11 VARA Case Studies Case Studies: Constitutionality Visual Artists Rights Act (VARA) is not unconstitutionally vague, despite its failure to define terms honor, reputation, and stature, since those terms have commonsense, easily understood meaning that should be apparent to all parties reviewing VARA. Carter v. Helmsley-Spear, Inc., S.D.N.Y.1994, 861 F.Supp. 303, 33 U.S.P.Q.2d Case Studies: VARA Purpose Visual Artists Rights Act (VARA) secures the moral rights of artists and protects the right of an artist to preserve a work of art even after that work is sold. Scott v. Dixon, E.D.N.Y.2004, 309 F.Supp.2d 395, 70 U.S.P.Q.2d Purpose of section of Visual Artists Rights Act (VARA), which provides artist with right to prevent intentional distortion, mutilation, or modification of work of visual art if it would be prejudicial to artist's honor or reputation, is to protect artists' integrity. Carter v. Helmsley-Spear, Inc., S.D.N.Y.1994, 861 F.Supp. 303, 33 U.S.P.Q.2d 1225.

12 VARA: Literal Language from the Copyright Act (a) Rights of attribution and integrity. Subject to section 107 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; (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 (3) subject to the limitations set forth in section 113(d), 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. (b) Scope and exercise of rights.--only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are coowners of the rights conferred by subsection (a) in that work. 17 U.S.C. Section 106A

13 (c) Exceptions. VARA: Literal Language from the Copyright Act (1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(a). (2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence. (3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of work of visual art in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a). (d) Duration of rights. (1) With respect to works of visual art created on or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, the rights conferred by subsection (a) shall endure for a term consisting of the life of the author. (2) With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106. (3) In the case of a joint work prepared by two or more authors, the rights conferred by subsection (a) shall endure for a term consisting of the life of the last surviving author. (4) All terms of the rights conferred by subsection (a) run to the end of the calendar year in which they would otherwise expire. (e) Transfer and waiver. (1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors. (2) Ownership of the rights conferred by subsection (a) with respect to a work of visual art is distinct from ownership of any copy of that work, or of a copyright or any exclusive right under a copyright in that work. Transfer of ownership of any copy of a work of visual art, or of a copyright or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred by subsection (a). Except as may otherwise be agreed by the author in a written instrument signed by the author, a waiver of the rights conferred by subsection (a) with respect to a work of visual art shall not constitute a transfer of ownership of any copy of that work, or of ownership of a copyright or of any exclusive right under a copyright in that work. 17 U.S.C. Section 106A

14 VARA: Scope and Exercise of Rights Only Authors have VARA rights Self Portrait by Vincent Van Gogh; Image Courtesy Photo by Nik Hewitt, Courtesy

15 VARA: Extends Exclusively to Authors or Co-Authors Only the author of a work of visual art has the rights conferred in that work, whether or not the author is the copyright owner. The authors of a joint work of visual art are co owners of the rights conferred in that work.

16 VARA: Definition of a Work of Visual Art under Copyright Act 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) The following: (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. 17 USC Section 101.

17 VARA: Summary of Works of Arts Painting Drawing Print Sculpture Protected Still photographs of images produced for exhibition only existing in single copies or limited editions of 200 or fewer, signed and numbered by the artist.

18 VARA Case Studies Case Studies: Work of Visual Art Artist's hand-painted banner was not a work of visual art subject to protection under the Visual Artists Rights Act (VARA); banner was created for the purpose of drawing attention to political advocacy organization's information desk, as part of a lobbying effort, and the banner overtly promoted in word and picture a lobbying message, the banner was commissioned and paid for by the political advocacy organization and the organization determined in advance the banner's content. Pollara v. Seymour, C.A.2 (N.Y.) 2003, 344 F.3d 265, 68 U.S.P.Q.2d House did not fall within definition of work of visual art under Visual Artists Rights Act (VARA). Landrau v. Solis Betancourt, D.Puerto Rico 2007, 554 F.Supp.2d 102. Murals, as subset of paintings, are visual art protected by Visual Artists Rights Act (VARA). Hunter v. Squirrel Hill Associates, L.P., E.D.Pa.2005, 413 F.Supp.2d 517. Photographic prints that photographer gave to artist were produced by developing negatives for primary purpose of assisting artist by providing studies for paintings artist planned to create, and thus, they were not produced for exhibition purposes only, as required to qualify as works of visual art protected under Visual Artists Rights Act (VARA); once photographs were developed, photographer and artist reviewed them and discussed which frames would make good studies for paintings, and photographer turned possession of prints over to artist. Lilley v. Stout, D.D.C.2005, 384 F.Supp.2d 83, 75 U.S.P.Q.2d 1843.

19 VARA Applicability of Timeframe When Works Are Created VARA effective date: May 1, 1991, six (6) months after enactment of VARA on December 1, 1990 VARA applies to works created before the effective date set but title to which has not, as of such effective date, been transferred from the author, and VARA applies to works created on or after such effective date, but shall not apply to any destruction, distortion, mutilation, or other modification of any work which occurred before such effective date.

20 VARA: Duration of Rights With respect to works of visual art created on or after the effective date of VARA, the rights conferred shall endure for a term consisting of the life of the author. With respect to works of visual art created before the effective date of VARA, but title to which has not, as of such effective date, been transferred from the author, the rights conferred shall be coextensive with, and shall expire at the same time as, the rights conferred by Section 106. This means if a work was created before VARA and transferred, then VARA does not likely apply to that work. In the case of a joint work prepared by two or more authors, the rights conferred shall endure for a term consisting of the life of the last surviving author. All terms of the rights conferred run to the end of the calendar year in which they would otherwise expire.

21 VARA: Retroactive Effect Case Studies: Retroactive Effect Project agreement between city and artist in connection with large outdoor sculpture created by artist, which was entered into prior to adoption of Visual Artists Rights Act (VARA), did not result in waiver of artist's rights under VARA for purposes of action brought after city demolished sculpture as part of urban renewal project; while agreement called for city to give notice prior to demolition of sculpture, no such notice was given, and nothing happened prior to demolition which could be construed as a waiver of rights under VARA. Martin v. City of Indianapolis, C.A.7 (Ind.) 1999, 192 F.3d 608, 52 U.S.P.Q.2d Stainless steel sculpture that was completed four years before Visual Artists Rights Act (VARA) became effective was work of visual art within scope of VARA protection where artist established that he maintained title during time between completion and enactment of VARA and beyond effective date of VARA. Martin v. City of Indianapolis, S.D.Ind.1997, 982 F.Supp. 625.

22 VARA: Scope and Exercise of Rights Revisited Rights Extended to Authors: Attribution Integrity

23 VARA: Elaboration of Rights Extend to Authors (a) Rights of attribution and integrity.--subject to section 107 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; (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 (3) subject to the limitations set forth in section 113(d), 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.

24 VARA: Authors Rights Summarized Right to attribution Right to prevent misattribution Right to prevent use of author s name in the event of distortion, modification or mutilation of the artwork, when it affects author s honor or reputation In some cases: To prevent intentional distortion, modification or mutilation when compromising to author s honor or reputation To prevent destruction of a work of recognized stature

25 VARA: On Murals The rights conferred by Section 106(A)(2)and(3) shall not apply when: (A) a work of visual art has 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, and (B) the author consented to the installation of the work in the building either before the effective date of VARA, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal,

26 VARA: On Murals If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work, the author's rights under Section 106(A)(2)and(3)shall apply, unless: (A) the owner has made a diligent, good faith attempt without success to notify the author of the owner's intended action affecting the work of visual art, or (B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal. An owner shall be presumed to have made a diligent, good faith attempt to send notice if the owner sent such notice by registered mail to the author at the most recent address of the author that was recorded with the Register of Copyrights. If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author.

27 VARA: Prejudice to Honor or Reputation Case Studies: Prejudice to honor or reputation In determining under Visual Artists Rights Act (VARA) whether intentional distortion, mutilation, or modification of work of visual art would be prejudicial to artists' honor or reputation, court will consider whether such alteration would cause injury or damage to artists' good name, public esteem, or reputation in artistic community. Carter v. Helmsley- Spear, Inc., S.D.N.Y.1994, 861 F.Supp. 303, 33 U.S.P.Q.2d Artist's allegation that alteration of his sculpture had prejudiced his honor and reputation were sufficient to bring alleged acts within scope of Visual Artists Rights Act (VARA). Pavia v Ave. of the Americas Associates, S.D.N.Y.1995, 901 F.Supp. 620, 36 U.S.P.Q.2d 1622.

28 VARA: Authors of Works with Recognized Stature VARA extends even more Rights to Authors of Works with Recognized Stature. It allows authors to prevent intentional distortion, mutilation and modification in some cases.

29 VARA: Works of Recognized Stature Case Studies: Work of recognized stature Works of recognized stature, within the meaning of the Visual Artists Rights Act (VARA), are those works of artistic merit that have been recognized by members of the artistic community or the general public; to achieve VARA protection, an artist must show not only the work's artistic merit but also that it has been recognized as having such merit. Scott v. Dixon, E.D.N.Y.2004, 309 F.Supp.2d 395, 70 U.S.P.Q.2d Artist's mural was not a work of recognized stature within meaning of Visual Artists Rights Act (VARA); mural was to have been used solely to publicize one event sponsored by public interest group, and there was never any intent by the artist to preserve her work for future display. Pollara v. Seymour, N.D.N.Y.2002, 206 F.Supp.2d 333. Stainless steel sculpture was work of recognized stature, within Visual Artists Rights Act (VARA) where model for sculpture won best of show in annual art show reported in local newspapers, art gallery director positively described it as interesting and aesthetically stimulating, and newspaper art critic and associate professor described it as fine piece of public sculpture, and there were other reviews and reports in newspaper and art newsletter. Martin v. City of Indianapolis, S.D.Ind.1997, 982 F.Supp Artist need not demonstrate that his or her work is equal in stature to that created by artists such as Picasso, Chagall, or Giacometti to satisfy provision of Visual Artists Rights Act (VARA) stating that author of work of visual art shall have right to prevent any destruction of work of recognized stature. Carter v. Helmsley-Spear, Inc., S.D.N.Y.1994, 861 F.Supp. 303, 33 U.S.P.Q.2d 1225.

30 VARA: Exceptions The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification. The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification unless the modification is caused by gross negligence. The rights described in paragraphs (1) and (2) of VARA shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of work of visual art in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification. So, What does this mean?

31 VARA: Definition of a Work of Visual Art Revisited A work of visual art does not include: 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; any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; any work made for hire; or any work not subject to copyright protection under this title. 17 USC Section 101.

32 VARA: Conclusion VARA secures the moral rights of artists and protects the right of an artist to preserve a work of art even after that work is sold. VARA affords rights to authors only. Authors rights include rights of attribution and integrity.

33 THANK YOU! Ashlye Keaton ELLA Project

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