Protect Your Artwork: Understanding the Visual Artists Rights Act

The Visual Artists Rights Act (VARA) is part of the U.S. Copyright Law and is found at 17 U.S.C. §106(A). This law went into effect in 1990 and grants certain rights to visual artists. It is akin to moral rights laws which have been in existence for many more years in European countries.

 

Works of art meeting applicable requirements provide the artist with certain rights in their works which are in addition to rights available to all authors under the Copyright Law. These rights are personal to the visual artist and exist irrespective of ownership in the work itself and ownership of copyright rights in the work.

 

Under VARA, a visual artist (called an author of visual art in the statute) has the right:

• to claim authorship of the work;
• to prevent use of the author's name on any visual art which the author did not create;
• to prevent any intentional distortion, mutilation or modification of the work which would be prejudicial to the author's honor or reputation.

In addition, an author of a work having a "recognized stature" has the right to prevent intentional or grossly negligent destruction of a work.

 

These artist's rights are subject to Fair Use exceptions and certain exceptions for works incorporated into or made part of a building. In addition, modification of a visual work of art which is a result of the passage of time or the inherent nature of the materials is not a violation of the artist's VARA rights, nor are modifications which are the result of conservation or public presentation, including lighting and placement, unless caused by gross negligence. 

  

The law is applicable to a "work of visual art" as defined in section 101 of the Copyright Law (17 USC§101) which specifies paintings, drawings, prints or sculptures, or still photographic images which exist in a single copy or a limited edition of 200 copies or less signed and consecutively numbered by the author. For sculptures, the limited edition is 200 or less multiple cast, carved or fabricated copies consecutively numbered by the author and bearing the signature or other identifying mark of the author. Aesthetic taste or value are not requirements for protection under the VARA Act.

 

Purchasers of visual works covered by the statute must obtain written waivers from the author if they wish to exercise any of the exclusive artist's rights enumerated under the VARA law. Absent such a waiver, the artist can effectively veto decisions about the work. This has been a contentious issue particularly with respect to public sculptures, site-specific art and commissioned works. Litigation has arisen from assertions of artist's rights violation occasioned by movement of a sculpture from a public park, removal of murals from a building lobby, removal of graffiti from a building wall, and destruction or modification of a public art installation.

 

The VARA rights extend for the lifetime of the author for works created after the effective date of the law (Dec. 1, 1990). For joint authors, the term is for the life of the last surviving author. For works created before the effective date of the law, the rights are coextensive with the usual copyright term.

 

The rights provided under the VARA law do not apply to any reproduction, depiction, portrayal or other use of a work in, upon or in connection with any item that is a work made for hire or any one of the items enumerated in footnote [1].

 

The rights of the author may not be transferred, but those rights may be waived so long as the waiver is in a written instrument signed by the author. If there is a joint work of visual art prepared by two or more authors, a waiver of rights made by one author waives the rights for all the authors.

 

An important aspect of this law is that ownership of the VARA rights is distinct from ownership of any copy of the work or ownership of a copyright or any exclusive right under copyright in that work. Transfer of ownership of any copy of the work of visual art or of a copyright or any exclusive right under a copyright does not constitute a waiver of the VARA rights. A waiver of rights by the author with respect to a work of visual art does not constitute a transfer of ownership of any copy of the work or of ownership of any right of copyright.

 

The Golden Rule with respect to dealing with a work of visual art is to have a written agreement signed by the artist and purchaser which spells out the rights of ownership and copyright acquired by the purchaser, any waivers under VARA and any rights retained by the artist.

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[1] 17 USC§101 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).