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.