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.