The Visual Artists Rights Act (VARA)
by Miles Ringsred and Sean Clancy
The Visual Artists Rights Act of 1990 (VARA) grants what are known as “moral rights” to the author or artist of certain “works of visual art.” These rights are only given to the artist of the work and cannot be transferred (although they can be waived through a signed contract). This means that even if the artist sells the work or does not own the copyright to the work, the artist can still bring a claim under 17 U.S.C. § 106A to protect their “moral rights” in the work.
VARA only applies to “works of visual art” which is defined very carefully, and somewhat narrowly, under §101 of the Copyright Act. “Works of visual art” means paintings, drawings, prints, or sculptures, existing in a single copy or in certain limited editions. Still photographs can also qualify if they meet the same limited edition requirements and are produced for exhibition purposes only. The category of “works of visual art” does not include posters, maps, globes, charts, technical drawings, diagrams, models, applied art, motion pictures or audiovisual works, books, magazines, newspapers, periodicals, databases, electronic information services, electronic publications, or merchandising items for advertising. “Works made for hire” as defined under the Copyright Act are also not considered “works of visual art,” which can affect employees and some commissioned projects. When determining whether a particular work falls within the scope of the definition, the court is told to “use common sense and generally accepted standards of the artistic community.”
To achieve its purpose, VARA grants artists the right of attribution and the right of integrity. The right of attribution is meant to protect the artist’s reputation and does so by giving the artist the right to claim authorship of a work or to prevent the use of his or her name as an author of a work that he or she did not create or that is modified in a manner that would be prejudicial to the artist’s honor or reputation. The right of integrity gives the artist the right to 1) prevent any intentional distortion, mutilation, or modification of the work which would be prejudicial to the artist’s honor or reputation, and 2) prevent any destruction of a work of “recognized stature;” intentional or grossly negligent destruction of a work of “recognized statute” is a violation.
VARA does have exceptions. For example, ordinary wear-and-tear of the work due to the environmental factors and the passage of time are not violations. Similarly, modifications resulting from conservation or public presentation such as placement or lighting are not violations unless caused by gross negligence. Further, VARA rights apply to originals only—not copies or other reproductions.
VARA is also subject to § 113(d) of the Copyright Act, which addresses what happens to works that have been incorporated into a building, such as murals on a wall. This section states that the right of integrity does not apply if the artist consented to the installation before the effective VARA date (December 1, 1990), or, if after the effective date, when both the artist and property owner sign an agreement specifying that the work may be damaged as a result of removal.
If a work is incorporated into a building after VARA’s effective date, there’s no written waiver, and the artwork can somehow be removed without harming it (even if removal is expensive), then the building owner must provide the artist with notice before the owner can remove, modify, or destroy the work. First, the owner must make a “diligent, good faith” attempt to locate and notify the artist of the work’s removal. Second, if the artist can be located, the owner must provide notice of the works removal and give them 90 days, upon receipt of the notice, to remove the work or pay for its removal. In this situation, if the artist does remove the work, the statute provides that the artist regains title to the artwork.