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Understanding the Visual Artists Rights Act (VARA) 17 U.S.C. §106A

Introduction:

Does an artist still have rights to a work of art after it has been sold? The short answer is Yes. Why? All thanks to the enactment of the Visual Artists Rights Act (VARA), 17 U.S.C. §106A, by Congress in 1990. VARA grants artists protection to “moral rights” in their underlying art – even after others own the underlying work.

Rights afforded by VARA extend regardless of who owns the physical work or who owns title to the copyright. For example, an artist of a painting may sue the owner of a physical work of art for destroying the painting, even after the owner lawfully paid for the work. This is because under VARA, the artist retains “moral rights” to the painting even after its conveyance.

In order for a work of visual art to obtain protection under VARA, it must meet specific requirements. Such protections apply only to paintings, drawings, prints, sculptures, still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed and numbered by the artists.

Congress passed VARA in response to the Berne Convention, which required the protection of moral rights by signatory states. VARA constitutes the first federal copyright law in the United States which grants artists a form of moral rights in their original works.

The Origin of VARA:

In 1990, Congress enacted the “Visual Artists Rights Act” to afford artists limited moral rights of attribution and integrity of certain limited types of visual arts. Such rights follow the Berne Convention for the Protection of Literary and Artists Works to harmonize rights granted to most artists in other industrialized nations.

The Act guarantees authors of fine arts and exhibition photographs a right to claim or disclaim authorship – as well as further right to prevent distortion, mutilation, or modification of a work. The act also may provide – in limited circumstances – rights to stop destruction of a work incorporated into a building.

Congress enacted VARA after hearing testimony from a variety of stake holders – including but not limited to commercial users and artists’ representatives. Congress determined that the artists’ rights should not be absolute, but that they should be tempered by commercial realities, provided that provisions were enacted to insulate authors from being unduly influenced to give away their new-found rights. Thus, the legislation provides for waiver of these moral rights, but only by a signed, written agreement specifying the work and the precise uses to which a waiver applies.

The provision for two studies by the Copyright Office gave artists further assurance that Congress intended to review the waiver provision’s operation to assure that artists were not coerced by unequal bargaining power to forfeit their moral rights.

An early step in the Copyright Office’s research was to review state statutes to learn which, if any, afford moral rights protection. It found that nine states had enacted legislation before VARA to protect, to varying degrees, authors’ moral rights. Those following a so-called “preservation model” protect an author’s rights of attribution and integrity and generally protect artistic works against unauthorized destruction. The moral rights statutes do not protect against destruction but do ensure an author’s rights of attribution and integrity in a class of works that is sometimes limited to visual or graphic works of recognized quality. A tenth state’s law, enacted after VARA, follows a third model that protects against “alteration or destruction” and ensures proper “attribution” but applies only to works publicly displayed in state buildings.

Moral rights are also protected indirectly by state tort, privacy and publicity laws; by the federal protection of the Lanham Act; and by the Copyright Act’s protection of an author’s exclusive rights in his or her derivative works, and limits on a mechanical licensee’s rights to arrange an author’s musical composition.

The extent to which state common law and legislative protection will survive the federal Copyright Act’s preemption provisions remains unclear. Similarly, little information is available about the effectiveness of authors’ protection under these laws.

Rights Granted under VARA:

VARA exclusively grants authors of works that fall under the protection of the Act the following four core rights: (i) right to claim authorship, (ii) right to prevent the use of one’s name on any work the author did not create, (iii) right to prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation, and (iv) the right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation. In most instances, the rights granted under VARA persist for the life of the author, or the last surviving author, for creators of joint works.

Additionally, authors of works of “recognized stature” may prohibit intentional or grossly negligent destruction of a work. To date, “recognized stature” has managed to elude a precise definition. It is important to note that exceptions to VARA require a waiver from the author in writing. VARA allows authors to waive their rights, something generally not permitted in France and many European countries, whose laws were the originators of the moral rights of artists concept.

Does VARA Even Work?

In November 2017, a civil jury in the Federal District Court in Brooklyn awarded a judgement of 6.7 million to 21 graffiti artists whose works were destroyed in 2013. The jury found that a real estate developer who owned a building complex, violated VARA, when he destroyed the complex that exhibited dozens of murals by said graffiti artists. The court concluded the graffiti artists had obtained “moral rights” to the mural, extended to them by VARA.

Whether you are an artist or an avid owner of art, you should be aware of VARA, as well as its legal and monetary implications. If you have questions about the protections afforded by VARA – or if you believe your visual work is being violated under the Act – contact a Florida Copyright Attorney today at 305-374-8303 to discuss your rights.