Visual Artists Rights Act
VARA was the first federal copyright legislation to grant protection to moral rights. Under VARA, works of art that meet certain requirements afford their authors additional rights in the works, regardless of any subsequent physical ownership of the work itself, or regardless of who holds the copyright to the work. For instance, a painter may insist on proper attribution of his painting and in some instances may sue the owner of the physical painting for destroying the painting even if the owner of the painting lawfully owned it.
While federal law had not acknowledged moral rights prior to this act, some state legislatures and judicial decisions created limited moral rights protection. The Berne Convention required protection of these rights by signatory states, and it was in response that the U.S. Congress passed the VARA.
Exclusive rights under VARA
VARA exclusively grants authors of works that fall under the protection of the Act the following rights
- right to claim authorship
- right to prevent the use of one's name on any work the author did not create
- right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
- right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
Additionally, authors of works of "recognized stature" may prohibit intentional or grossly negligent destruction of a work. Exceptions to VARA require a waiver from the author in writing. To date, "recognized stature" has managed to elude a precise definition. VARA allows authors to waive their rights, something generally not permitted in France and many European countries whose laws were the originators of the moral rights of artists concept.
In most instances, the rights granted under VARA persist for the life of the author (or the last surviving author, for creators of joint works).
VARA provides its protection only to paintings, drawings, prints, sculptures, still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artist. The requirements for protection do not implicate aesthetic taste or value.
Honorable Jimm Larry Hendren ruled on June 6, 2011 the Visual Artists Right Act exempts undesired displays of adult art to children "online". . This was appealed and then affirmed by the Eighth Circuit Court. This judicial repeal caused this Act to not allow good Samaritan parents to prevent undesired displays of their immoral, indecent, or profane visual art to their own children against their moral wishes. This ruling left parent artists unable to continue producing adult artwork in America and protect honor because moral rights to prevent immoral display of art no longer exist.
Application and effect
VARA's application is limited to visual works that fall within a narrowly defined category. However, for works that do fall within the category of protected works, VARA imposes substantial restrictions on any modification or removal of those works. Purchasers of the works must obtain written waivers from the author if they wish to exercise any of the exclusive rights under VARA.
This has particularly been an issue for those that commission public sculptures. Absent a waiver, artists could effectively veto decisions to remove their structures from their benefactor's land. In a 2006 decision involving public sculptures that were removed from the park for which they were created, the United States Court of Appeals for the First Circuit ruled that VARA does not protect location as a component of site-specific work. VARA covered works can be moved as long as the move does not constitute "destruction, distortion, or mutilation."
Examples of works
- Tilted Arc, a well-known artwork by Richard Serra, was dismantled without his approval prior to the enactment of VARA.
- Kent Twitchell's Ed Ruscha mural was painted over without his approval. Twitchell won the largest settlement ever under VARA for $1.1 million against the U.S. government and 12 defendants.
- Text of Visual Artists Rights Act of 1990
- One attorney's analysis of the Visual Artists Rights Act of 1990
- Waiver of Moral Rights in Visual Artworks. U.S. Copyright Office. Retrieved 2005-07-01.
- RayMing Chang, Revisiting the Visual Artists Rights Act of 1990: A Follow-up Survey About Awareness and Waiver, 13 TEX. INTELL. PROP. L.J. 129 (2005): This article analyzes the history of VARA and presents empirical data about the Visual Artists Rights Act of 1990 (VARA) from an exhaustive survey that the author conducted in 2003.
- RARIN - Rights and Reproductions Information Network for Museum Professionals
- Example of a recent VARA case for mutilation of public sculpture.
- WSJ article on VARA at 20 years.
- Robert J. Sherman. Note: THE VISUAL ARTISTS RIGHTS ACT OF 1990: AMERICAN ARTISTS BURNED AGAIN. 17 Cardozo L. Rev. 373 (1995)
- See Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Circuit 2006).