To many, the Visual Artists Rights Act of 1990, VARA, requires that if an artist wishes to protect their right to prevent mutilation or alteration of the visual works or get credit for the creation of a piece of art, that artist must bring action in Federal Court as Federal law takes precedence over any state law that effects the same rights and obligations. A Federal action can be a very expensive proposition. Just ask any lawyer.
In actuality, there are certain state's law that probably still apply to the rights of visual artists, especially if you live, or can file your legal action, in the states of California or New York.
VARA limits its protection to unique, visual works of "fine" art. What this means, basically, is that the work of many artists who create works of graphic design, works for trade or commercial purposes or for reproduction or which are simply not considered "fine" art, will not be given any protection by this federal law. Further, California provides that a creator of fine art can collect royalties from profits made on subsequent sales of said fine art. VARA does not give this right.
New York and California protect the creator's right to reserve ownership of original artwork which meets the broader definition of "any work of visual or graphic art of any media including, but not limited to, a painting, drawing, sculpture, craft, photograph or film." New York also protects reproduction rights in the more broadly defined artwork.
There are other rights that the laws of various states protect that are not included in VARA. A very important right is the right to have a relationship between the artist and a gallery, agent or other company declared a consignment arrangement in the absence of an agreement to the contrary. This provides that artist with considerable protection in the event the artwork disappears or the gallery, or agent, refuses to pay the artist after the sale
First Published Version, copyright 1992 David M. Spatt
NEGOTIATING AFTER THE VISUAL ARTISTS RIGHTS ACT
Many artists believe that since the Federal Visual Artist Rights Act (VARA), they no longer need to worry about negotiating post-sale rights into their written contracts. VARA protects an artist's right to prevent a purchaser of artwork from altering or destroying the artwork without permission of the artist and assures the artist right to be credtied as the author of the work.
Most artists, though, still must negotiate these rights as the Federal Act only protects rights in strictly-defined "visual art."
The definition includes paintings, drawings, prints, sculptures or still photographs, but excludes posters, maps, globes, charts, technical drawings, diagrams, models, applied art, motion pictures or other audiovisual works, pantomimes, choreographic works and sound recordings. Other works not specifically included in the definition also would probably not be entitled to protection under the statute.
As a rule, artwork that is created for commercial or trade usage, such as graphic design and illustration, is not afforded protection by the statute, although the New York and California Visual Artists statutes may provide some limited protection for artists within those jurisdictions. In any event, the safest bet is to include post-sale rights within a written contract
First Published Version, copyright 1993 David M. Spatt
VARA'S FIRST CASE
As already explained on this page, VARA is not someone's name. It is the U.S. Visual Artist Rights Act. It was enacted to protect the post-sale rights of artists who have created works of fine art and the act was made a part of the Copyright Act. Until recently, there were no cases which sought to enforce the act, but there is one now involving three artists trying to protect their work from destruction by a New York building's owner. This is important as opinions published by the courts determine how laws will be applied and interpreted.
A pre-trial published opinion on a case, though did deal with some preliminary issues and mentioned a few important points. The Court stated that VARA is constitutional as it does not compel property owners to allow an invasion of their property interests. Rather, it only places certain burdens on those who permit the installation of works of visual art on their property. The Court also said that preliminary injunctions are available under VARA to prevent irreparable harm, since VARA is part of the Copyright Act and the Copyright Act allows such injunctions.
Later, the U.S. District Court rendered its verdict in that same case and the following discussion is a summary of that decision as interpreted by this writer. The idea behind VARA is to prevent intentional distortion or modification of an original work of visual art, where the modification or distortion would prejudice the artist's honor or reputation. It also prevents the intentional or grossly negligent destruction of works of recognized stature. Finally, it protects the artists right to be credited with the creation of the work and the right to not be credited as the creator if the works is altered or modified or if the artist did not create it. This is a very brief and basic explanation of the law, but it is all that seemed appropriate here. For a more detailed discussion of VARA, state rights and this case see MORAL RIGHTS
The case, which took place in New York City, involved three artists who were commissioned to create a single work of art ithat encompassed the lobby and other elements of a commercial building. After beginning the project, a new owner of the building decided not to allow completion of the work and to destroy that which had already been created. Natually, the artists fought back and for once there was a law to protect them.
For the sake of brevity, I will provide the most important conclusions of the court, without supplying much of the reasoning behind them.
STATE STATUTORY LAW
Although most state moral rights legislation has been pre-empted 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. Resale royalties are a European concept called Droite de Suite and it is currently under consideration for inclusion as an amendment to the U.S. Copyright Act.
Other state statutes protect the rights of artists and are not pre-empted by VARA. Many states have laws that create a consignment relationship where an artist delivers 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 delivered works and of the proceeds from the sale of those works until the gallery pays the artist. This protects the artist's interest in the works or the proceeds, thus protecting the works and proceeds from a gallery's creditors or from intentional misuse by the gallery itself.
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 various remedies including a full refund or triple 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 were improperly labeled fine prints.
Unfortunately, neither consignment laws nor fine print disclosure laws are available in Rhode Island. The local artist can still take advantage of these laws in other states though, by entering written contracts which specify that the laws of the state of the other party shall be applicable to the contractual relationship, assuming that other state has such laws. Be aware that making such a choice may force the artist to go to that other state in the event of a lawsuit involving the contract. (see STATE LAWS)
First Published Version, copyright 1996 David M. Spatt
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copyright 1997 David M. Spatt, All rights reserved
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