In 1958, an Alexander Calder black-and-white mobile was donated for placement in the Pittsburgh Airport. The Allegheny County Department of Aviation repainted the mobile green and gold, locked it into place and motorized it. Although the work was being presented in a manner contrary to the artist's intentions, Calder had no right for relief against the county government. The relief he would have sought would have been due to his moral rights, which were not protected at the time in Pennsylvania, much less anywhere else in the United States.
In an earlier case, The Rutgers Presbyterian Church painted over a mural of Christ painted by Alfred Crimi because the parisioners objected to the showing of too much bare chest. No notice was given to the artist prior to the destruction of the work and Crimi lost his suit for compensatory damages.
MORAL RIGHTS
Moral rights provide the artist-creator of certain works of art with the power to protect those works and the artist's reputation after the work has been sold, and such rights generally fall into three categories. The first is the artist's right of creation, which controls whether a particular work shall be created or destroyed. It would appear that such a right need not be protected by law, but consider what would happen if a famous artist, dissatisfied with the result of his or her labors, decided to destroy a work, after which the remains were discarded. How would that artist prevent an unscrupulous collector from finding the remains, restoring and selling it? Such a result would obviously run contrary to the artist's intent and a statutory right of creation would enable the artist to recover the work.
Another moral right is the right of paternity, to be credited with the creation or authorship of one's work of art. Conversely, this right also protects one's right to disclaim authorship if the work was not created by the artist or if the work was altered by another to a certain degree. This right would have allowed Alexander Calder the relief of removing his name from his work of art when it was painted, immobilized and motorized.
Finally, the artist's right of integrity would be protected. As the creator of a work of art, it is important to prevent others from altering, mutilating, or destroying your art without your consent. The right of integrity would allow an artist to enjoin others from such behavior even if the artist no longer owns the work.
This right is of the most concern to most artists and has been the subject of the most state legislation in the past. Even Rhode Island, which has done little to protect the rights of its substantial arts community, has given statutory protection to an artist's right of integrity as well as paternity.
THE VISUAL ARTISTS RIGHTS ACT
Most of the states' moral rights legislation, though, has been preempted by the enactment of the Visual Artist's Rights Act (VARA) as an amendment to the United States Copyright Act of 1976. This legislation has brought the United States into line with much of the European community where artist's rights have been protected for many years. In fact, the phrase moral rights comes from the french phrase Droit Moral.
VARA gives the author (or creator) of a work of visual art the right to:
Claim authorship of the work;
Prevent the use of his/her name as the author of a work he/she did not create;
Prevent the use of his/her name as author of a work that has been distorted, mutilated or modified to a certain degree; and
Under certain circumstances, prevent the distortion, mutilation, modification or destruction of a work of visual art, though this right is restricted when the work has been incorporated into a building with the consent of the author.
VARA provides protection of these rights for the duration of the life of the author(s) of the work, and these rights cannot be transferred to another party, though they can be waived if done so by an express written and signed waiver.
Many questions existed about the enactment of VARA and whether it constituted a of taking of the property of a subsequent owner of the artwork without due process, especially since the artist could exert his/her control over the property as to its destruction or alteration, even though the artist had transferred ownership in it. VARA, though, has passed its first test in the case of three artists named John, collectively called "J X 3", who contracted with a managing agent of a building in Manhattan "to design, create and install sculpture and other permanent installations" in the lobby and other areas of that New York City building.
For the sake of brevity, all the facts of this case need not be repeated here except that the artists were found by the Court not be employees of the managing agent or its client and therefore, the works they created were not considered works-for-hire. Further, the defendants in the case ordered the plaintiffs to leave the property prior to completion of the work and the plaintiffs believed that the defendants planned to alter or remove the work from the building. The plaintiffs then sued under VARA to prevent any alteration or destruction of the artwork and to allow them to complete the project.
The first decision of the Southern District of New York was that VARA does not constitute an unconstitutional taking of property without due process. It merely places a burden upon a property owner that allows installation of a work of visual art at the property. Further, that burden does not remain in place in perpituity, but only for the life of the artist.
The Southern District's second opinion discussed the merits of the plaintiffs' case and, in so doing, provided the legal community with some judicial interpretation of VARA. The Court ruled as follows:
1. VARA protects "works of visual art" which is defined as including paintings, drawings, prints and sculptures existing in a single copy or in limited edition. It will not protect works of "applied art," defined as ornamentation affixed to utilitarian objects, such as a building directory, in such a way that the object, when viewed as a whole, is strictly utilitarian.
2. Works-for-Hire are not protected.
3. That, although a work includes numerous elements throughout a building's lobby and it entails various media, it can still be considered a single copy of a single sculpture which is a "work of visual art."
4. VARA protects against the intentional distortion, mutilation or modification of a work where such would prejudice the artist's honor or reputation. The Court defined "prejudice" as injury or damage due to some judgment of another, "honor" means good name or public esteem, and "reputation" is the condition of being regarded as worthy or meritorious. The Court decided, though, that the formula for deciding whether such harm exists must be flexible.
5. Since VARA will protect against destruction of "a work of recognized stature," an artist must show that art experts, the art community, or society in general view the work as possessing such stature. The work need not be considered equal in stature to a Picasso or a Chagall and it need not be aesthetically pleasing to the trier of fact.
6. Although VARA mandates the preservation of a protected art work and the artist's moral rights, the plaintiffs did not convince the Court that the defendant's refusal to allow completion of the work constituted a distortion, mutilation or modification in violation of VARA.
7. Unlike other actions persued under Title 17, an artist can sue to protect his/her moral rights under 17 U.S.C. 106(a) without registering the work with the Register of Copyrights, and the artist can elect to recover actual damages under sections 504(a) and (b), or statutory damages under sections 504(a) and (c).
8. As with other actions brought persuant to the Copyright Act, the Court, in exercising its discretion, can award attorney's fees and costs to a prevailing party in a suit litigated under VARA.
STATE STATUTORY LAW
Although most state moral rights legislation has been preempted by VARA, some statutes which provide greater protection to artists may survive. One such statute in California creates and protects an artist's right to collect a percentage of the proceeds from the sale of his/her "work of fine art" to subsequent purchasers. This right to "resale royalties" even survives the death of the artist and inures to the artist's heirs. The right to resale royalties is another long-standing European concept called droite de suite and it is currently under consideration for inclusion as an amendment to the copyright laws of the United States.
Other state statutes protect the rights of artists and are not pre-empted by VARA. Many states have statutes that create a consignment relationship where an artist delivers his/her artwork to a gallery and where no express agreement exists to the contrary. These laws provide artists with the means to claim ownership of the works and of the proceeds from their sale until the gallery pays the artist, thus providing protection for the works and for the proceeds from a gallery's creditors or from intentional conversion by the gallery's owners.
Fine print disclosure laws require dealers of "fine prints" to disclose certain information to buyers of those prints. Such information may include the name of the artist; whether the artist signed the print; how many were signed; the medium and manner of reproduction; how the master was used; and how many prints were produced for a limited run. The penalty for providing false information can entitle the buyer to anything from a full refund to treble damages for the seller's knowing deception.
Although fine print disclosure laws are intended as a form of consumer protection, they have the effect of protecting the artist from dilution of their market by discouraging the unauthorized distribution of copies of the artist's work which are labeled as fine prints. Unfortunately, neither consignment laws nor fine print disclosure laws are available in Rhode Island. Still, Calder and Crimi would be gratified to know that some laws are finally available to protect the rights of visual artists in their works of fine art.
footnotes
1. Karlen, Artists Rights Today, 4 Cal. Law 22 (1984).
2. Crimi v. Rutgers Presbyterian Church, 194 Misc. 570, 89 N.Y.S. 2d 813 (1949).
3. R.I. Gen. Laws 5-62-2, et seq. (1987).
4. 17 U.S.C.  106(A) (1990).
5. Buffet v. Fersing, Recueil Dalloz [D. Jur.] 570, 571 (Cour d'appel 1962); Guille v. Colmant, Recueil Dalloz-Sirey [D.S. Jur.] 284, Gasette du Palais [Gaz. Pal.] 1.17 (cour d'appel, Paris 1967); Bonheur v. Pourchet, Cour de Paris, D.P. 1865.2.201.
6. 17 U.S.C.  106(A)(a)(1)(A).
7. 17 U.S.C.  106(A)(a)(1)(B).
8. 17 U.S.C.  106(A)(a)(2).
9. 17 U.S.C.  106(A)(a)(3).
10. 17 U.S.C.  113(d) (1976, as amended 1990).
11. 17 U.S.C.  106(A)(d).
12. 17 U.S.C.  106(A)(e).
13. Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994).
14. See 17 U.S.C.  201(b) and Community for Creative Non-Violence v. Reid, 109 S. Ct. 2166 (1989).
15. Carter, 861 F. Supp. 303, 312.
16. Carter v. Helmsley-Spear, Inc., 852 F. Supp. 228 (S.D.N.Y. 1994).
17. Id. at 237.
18. Carter, 861 F. Supp. 303, 315, 316.
19. Id. at 316.
20. Id. at 322.
21. Id. at 323.
22. Id. at 325.
23. Id. at 329.
24. Id. at 329-330.
25. Id. at 330.
26. Cal. Civ. Code section 986 (as amended 1982).
First Published Version, copyright 1996 David M. Spatt
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