This reading provides an excellent introductory comparison of copyright in the United States versus other countries. It explains how copyright here is based on economic concerns, while copyright in other countries, such as in Europe, have a natural-rights conception, which takes into account moral rights of the author. This essay compares a state statute, the California Art Preservation Act (CAPA) to VARA. It is useful to compare a state law to a federal law, because often times the question of which is right, if they are conflicting, arises. In this case, the federal law can trump the state law if it says so explicitly or by enacting a contradictory piece of legislation. It is important to note the fact that while the artist is living, CAPA is not likely to be applicable because VARA is a federal law and takes precedence, but when the artist dies and is therefore no longer protected by VARA, the artist is protected by CAPA. The issue is brought up that in trial, expert testimony is necessary to determine whether the work of art is of recognizable stature. The issue of mural conservation is raised, because conservation often requires practices that if not done carefully and correctly, can ruin or damage artwork.
This article is an important implication of the extension of VARA to protect specific works under specific circumstances (murals during conservation projects). Garfinkle provides recommendations to mural artists so they can avoid having to worry about their rights under VARA or CAPA. She also provides recommendations to property owners, so they can protect themselves from lawsuits. Because some states provided protection for moral rights before VARA was created, comparing VARA and CAPA is useful because there could have been some parts of VARA that came from state laws. By understanding state laws we can see other ways that moral rights are incorporated into United States law, because copyright law in the US was only concerned with the economic rights of the authors or artists until VARA, so this is a new addition; therefore, background information and relevant laws are useful.
Included in the Visual Artists Rights Act is a directive stating that studies must be conducted by Congress to assess the impact of the waiver clause of the act. This reading is from the United States Copyright Office and it is a summary of the VARA and its significance. It also assesses its impact on copyright in the United States. The studies assess whether the state statutes and regulations of moral rights really should be applied where they are designated. The moral rights in other countries are touched upon, so as to compare to the United States law. Since the Berne Convention, other nations have become more concerned with preserving the relationship of the author with his or her work. Interestingly, in the United States, although moral rights were not a part of the federal copyright law prior to the VARA, some states (through various court cases) have enacted moral rights laws. Such cases as Carter v. Helmsley-Spear, Inc are described to show how moral rights have been incorporated since VARA. The US Copyright Office also issued a survey that was disseminated to art related organizations. The purpose was to figure out what they knew about VARA, whether artists had been asked to waive their rights, and it sought to determine the impact of VARA, directly from the source.
This examination by the US Copyright Office is fairly extensive, and provides evidence to show that including moral rights into federal law in the United States is faced with doubts. This reading shows that after laws are passed they do not just become part of the legislative circulation and then forgotten, but that they are consequently studied and questioned. This shows the progressive nature of the legislation process. Specifically with regards to VARA, the fact that required studies were part of the act shows that doubts were in place before its passage. Including moral rights of any kind in United States Copyright Law was not done before this act was passed, so no one knew how this would turn out. Because VARA is also a new type of legislation, the fact that this article highlights that many who could be protected by VARA do not know about it, shows that more information needs to be disseminated to the public regarding new legislation.
This is the text for the Visual Artists Rights Act of 1990. The first section defines a work of visual art as "a painting, drawing, print, or sculpture" or "a still photographic image produced for exhibition purposes only" The work has to have no more than 200 copies, and each has to be signed and consecutively numbered by the author. This act protects the works of authors in the visual artistic field, and allows the authors to take credit for their work, and also to remove their name from any altered version of that work. The author can also prevent intentional changes of their work, especially if it would hurt the author's reputation. This also enumerates certain exceptions and also the duration of the rights, which is the life of the author. The act also has a transfer and waiver section that lists that rights cannot be transferred, but the author can waive them. In addition, if the work is part of the structure of a building or something of the sort, then the owner of the building needs to get permission from the author in order to remove his or her work. However, if the moving of the work will not ruin or destroy it at all, then it is permitted.
This act is the basis for subsequent cases and claims of copyright for visual works. The Visual Artists Rights Act of 1990 (VARA) adds more specifics to the United States Copyright Act of 1976. The extension to include visual artists works is an example of how changing times need new legislation. Under the original act, visual works are somewhat protected, but VARA gives more rights to the authors. Under VARA, the author can still control what is done with and to his or her work, even if he or she is not the owner of the physical piece. This is a major step forward in the United States copyright realm, because this is the first time that moral rights are given to authors; although, in Europe author’s already had moral rights.
Zakolski LA. Exclusive Rights in Copyrighted Works; Exploitation of Artistic and Literary Property A. Exclusive Rights 2. Visual Arts. American Jurisprudence 2, September, 2008.
This is a treatise from the Westlaw database, and is specifically from AMJUR. Just like most of the other readings, it first outlines the Visual Artists' Rights Act. Interestingly, it states that the rights under VARA only apply to the creator or owner of the work, regardless of if that author is the copyright owner. The main body of this piece of research summarizes court cases having to do with VARA. In such cases as, Pollara v. Seymour, 150 F. Supp. 2d 393 (N.D. N.Y. 2001), a precedent was set that just because the work was not actually up for exhibition, does not mean it does not get protection under VARA. Citing Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003), it was determined that when a banner is hand painted but used for a political message, and specifically when paid for by the organization that the message is for, then it is not protected under VARA. In another noteworthy case that is mentioned, Martin v. City of Indianapolis, a ruling was made regarding “recognized stature.” This stated that although the city claimed that it did not know the work was of prominence or supported by VARA, the fact that there were newspaper and magazine articles about the work prove that the city had access to the information; therefore the city could not claim ignorance.
This research examines the scope and implication of VARA, and exemplifies how VARA was put into use. By compiling summaries of major court cases, the treatise allows quick access to decisions regarding VARA; thus prompting further research and exploration about the topics discussed. These cases highlight how works are not protected if they are considered “work for hire” and that if sufficient information is available to the public about the significance of a work, someone cannot damage or destroy it and then claim lack of knowledge. It is necessary to research these cases further to analyze their significance entirely, but having a quick summary is useful to get the main points and facts that resulted from the decisions.
Clevenger JE. Proof of Infringement of the Visual Artists Rights Act of 1990. American Jurisprudence Proof of Facts, 3, July 2008.
This proof of facts deals with evidence for and background information regarding VARA. The reading explains moral rights and explains why the United States included moral rights into VARA, when they had never previously been incorporated into the United States Copyright Law. VARA infringements are then highlighted, and specific cases and what issues they deal with are specified. For instance, an example of a case dealing with each of the following is given: an artist’s hand painted banner; works for exhibition; photographs made as studies for paintings; sculpture park vs sculptures in a park; a 6,000-pound sculpture that was not visible to the public; an embroidered dragon that was on a fashion designers pant leg; models and technical drawings; and advertising and promotional materials. VARA is broken down into the right of attribution and integrity and then the reading covers the duration, transfer and waiver issues, and exceptions and exclusions of VARA. This reading is also useful because it highlights state protection of moral rights, and raises the question of whether VARA, a federal law, preempts state moral rights laws. A summary is also given of what is to be done about damages due to infringement, and discusses how it is difficult to create one remed,y because it is possible to violate the attribution or the integrity portion of VARA, which would need separate penalties. Elements of proof of infringement of VARA are enumerated to show when a violation has occurred; therefore, appropriate action can be taken. This is a very long reading (61 pages) and it goes further to explain interrogatories for an artist against people who may have violated VARA.
This reading provides useful background information, as well as implications of how to deal with possible VARA infringement. Because it provides example testimony and transcripts from cases, it shows how an actual VARA case could unfold, and the types of questions that should be asked. It is helpful to read transcripts to get an idea of how a case would be carried out, and what questions are asked to prove that infringement has or has not occurred. This is a very useful document to put VARA in its legal context.
Lindey A & Landau M. Chapter 16. Art Work [*] VII. Protection of Artists' Rights in Federal and State Statutes and Court Decisions. B. Federal Laws. Lindey on Entertainment, Publishing and the Arts. 3, Nov 2008.
Beginning like many of the other sources, this chapter begins with a background of VARA. However, newly noted is the fact that a bill like this was proposed several times between 1979 and 1990. It provides insight into the concerns of legislators regarding how critical including some type of moral protection for artists really was. Also, the notion that some states already had moral rights provisions in their laws is important, but now the federal law trumps the states’ provisions. Emphasis is placed on the fact that this act is setting a precedent of not just preserving the economic rights of the artist, but the moral rights as well. Because VARA is explicitly geared towards protecting “visual arts” there is argument as to whether the work is “applied art.” If the work is considered a visual art, then it must be viewed as a whole, and not on an elemental basis. This research is useful to understand the opposing argument; as to why the one party might believe that they are not infringing on VARA. The case, Carter v. Helmsley Spear Inc., is described to show how substantial of a reach VARA can have. Other cases such as Pavia v. 1120 Avenue of the Americas Associates are cited to show how state law and federal law can be interrelated. Summary paragraphs of cases include: In English v. BFC & R East 11th Street LLC; Peker v. Masters Collection; Grauer v. Deutsch; Pollara v. Seymour; and Scott v. Dixon among others. These cases all combine to specify and determine VARA’s jurisdiction, as well as putting it into application.
There are a great deal of cases in this treatise, and by giving a brief summary of each, the researcher can then go to other resources to find more detailed information about each case. Using each court case to define the limits, scope, and extent of VARA is key to its interpretation and incorporation into United States law. By starting with the history behind the act and then seeing its implementation and interpretation through court cases, we can construct a big picture of how VARA has helped shape our copyright culture.
This article highlights some of the ambiguities of VARA, such as leaving subjective and objective interpretations of harm open for debate. Because of the broad nature of the act, court cases such as Carter v. Helmsley-Spear, Inc, have expansive room for interpretation. The objective approach was taken in the case of Carter v. Helmsley-Spear, Inc. There have been subjective interpretations, like in Pavia v. 1120 Avenue of the Americas Associates. It is evident through legislation that Congress intended for VARA to have a narrow application, and to be used as a small step towards including moral rights in United States copyright law. Substantial modification of a visual work is compared to the concept of substantial similarity in traditional United States copyright law, which facilitates the objective approach to interpretation of VARA. The article also describes how if the modification to the work is considered insignificant (i.e. lighting a painting from below as opposed to above) then the artist cannot claim infringement of VARA. By comparing significant vs. insignificant modification juxtaposed against qualitative vs. quantitative modification, the scope of and debates regarding VARA are brought to the forefront. An interesting point is that when judging art, some argue that the judges do not have adequate training to deem modification as infringement.
This article is important to decipher the meaning of modification of a piece of artwork. The debate over how the act should be and is implemented highlights the ambiguities of VARA. Because VARA is the first time moral rights are worked into United States law, its scope is narrow so it can be a test to see how the expansion of protection beyond economic rights fairs. It is clear that debate exists, because of the possibility of subjective vs. objective interpretation; although Hawkins believes objective interpretation is much preferred. Once again, court cases are examined to show the way the act has been applied and interpreted; therefore, Congress can gauge whether federal copyright law in general should be expanded to include moral rights, as it does in other countries.
Patry, William F. "The Visual Artists' Rights Act of 1990 (VARA). Copyright Law and Practice. Vol 2. Arlington: The Bureau of National Affairs, Inc, 1994.
William Patry provides an overview of the Visual Artists’ Rights Act, and this chapter is divided into numerous sections to simplify VARA's breakdown. Patry states that the goal of VARA is to “preserve the physical integrity of the physical embodiment of works of visual art, both as an expression of the creativity of the artist, and in order to ensure that culture is passed on to future generations.” However, because it is so narrowly defined in what it protects, VARA shows how reluctant United States officials are to put moral rights into federal law. Patry provides insight into the reasoning behind certain provisions in VARA, such as the exclusions, which he says were “intended to eliminate opposition from the motion picture, publishing, and computer industries.” This chapter also explains each of the three rights granted by VARA: the right of attribution, integrity, and the right to prohibit destruction. Exceptions are extensively investigated, while also declaring that VARA distinguishes between exceptions regarding subject matter and exceptions regarding rights granted in Section 106A of United States Copyright Law. Interestingly, Patry touches on the issue of fair use as a possible section of conflict between “traditional copyright law and VARA.” VARA prevents parody or satire of visual artwork, because in order for parody or satire to work, the original work must be “distorted or modified” in some way that harms the artist’s reputation. Patry goes on to explain preemption regarding federal vs. state laws, among other forms of preemption.
This chapter in Patry’s book provides an excellent overview of some of the issues that arise regarding VARA. The conflicts that arise due to VARA show how new legislation always comes with its dissenters and supporters, and it always has some type of loophole or problem. Patry’s insight into why Congress added certain provisions helps the average audience to understand the legislation process with regards to copyright.
Berlowe et al begins by enumerating the five rights granted under moral rights, and differentiates those protections from those of Copyright Law, which has an economic basis in the United States. Compared to the Berne Convention, VARA is “analogous to Article 6(b),” but its scope is significantly narrower. By examining the language of VARA, the definition of a painting and a drawing are vague enough that protection could be extended to include some computer drawings. Both sides of the issue of whether digital art should be protected by VARA are argued. Some say that digital art is just mathematical, while others say that with the way technology is moving, digital art is just another new medium that artists are utilizing. The scope of VARA is also described, and then applied to digital art. In addition, Berlowe et al illuminates that because digital works are not protected under federal law, state laws can provide moral rights to digital graphic artists without preemption by VARA. Berlowe et al also states that artists should be advised on the other ways they can protect their works, which could include trademarks, licensing agreements, etc.
This article is important to argue the progressive intentions of Congress when creating VARA. Technology is always changing and it is clear that it is necessary to create laws that have room for technological advancements. With added works and ways of creating them, it is necessary to pass legislation with room for advancement. The fact that Berlowe et al explains the importance of “the environment in which the artist works, the medium of the work, the artist’s reputation, and the stature of his or her work” shows the complicated factors that go into determining protection of works. By comparing VARA to state laws, such as those in Florida, it is clear that there is tension between federal and state protection and jurisdiction. States have provided moral rights protection long before United States federal law ever did, so there is inherent conflict between the two.