Wednesday, May 25, 2011

The Rise of (Visual) Artists' Rights

"Judge Not" by Debbie Buchanan Engle

May 25, 2011
What does the law have to do with artists? Copyright, contracts, trusts and estates, and intellectual property are only a few of the myriad legal issues facing artists today. For this post, however, I will focus on the Visual Artist Rights Act (VARA), an interesting piece of federal legislation passed in 1990. VARA has popped up in a few recent news stories and caught my attention. I wondered: Why does this legislation only apply to visual artists? Does VARA work in favor of artists?

Some background information: VARA is found in the Copyright Act. Copyright protects original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works. Copyright protection begins from the time a work is created in a fixed form and, with some exceptions, immediately becomes the property of the creator of the work. In order to be in the best position to protect and enforce your copyrights, registration of the work with the copyright office is recommended.

VARA goes one step beyond copyright protection; while copyright protects a creator’s financial rights, VARA protects his or her moral rights.

Moral rights represent the personal and reputational rights of a creator. Moral rights belong to an artist no matter who owns the copyright. These rights include:
  • Right to claim authorship
  • Right to prevent the use of one’s name as the author of a work which her or she did not create
  • Right to prevent the use of one’s name as the author if his or her work is changed or altered
  • Right to prevent any intentional modification of a work which would be harmful to the artist’s honor or reputation
  • Right to prevent any destruction of a work of recognized stature
However, VARA only protects fine visual artworks. These include paintings, drawings, and sculptures, as well as prints existing in a single copy or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. The full list of qualifications for (and disqualifications) for a work to be protected under VARA can be found at the U.S. Copyright Office website.

But why are only visual artists protected in VARA? Where is the moral right protection for other disciplines? One possible explanation for the extra protection of visual art could be due to its physical nature. For example, if a physical copy of a music recording is destroyed, typically other copies of the recording exist as an mp3, CD, or vinyl record (or “phonorecords”). On the other hand, if a fine visual artwork is destroyed, that work could have been one of few existing copies.

Does VARA work in favor of artists? Critics of VARA point to the rise in artists waiving their moral rights as a negative result of the legislation. Unlike copyright, an artist can never dissociate herself from the moral rights of the work—VARA ensures that moral rights belong to the author for the duration of his or her life. Now, artists are increasingly asked to sign contracts waiving their moral rights in the work. Effectively, this means that the author will still own a work’s moral rights, but he or she will not be able to take legal action in that particular instance should her moral rights be violated.

Sergio Muñoz Sarmiento, attorney and Associate Director for Volunteer Lawyers for the Arts in New York City, explains that an artist should not have to choose between keeping and waiving all her moral rights. First, Sarmiento emphasizes that artists should get legal advice before signing anything. Find a lawyer who understands the unique nature of art and artists. A lawyer can then suggest different possible scenarios to artists (relocation, restoration, demolition, etc.), and together the lawyer and artist can negotiate an appropriate contract (avoiding waiving all moral rights).

Organizations like Volunteer Lawyers for the Arts offer legal classes for artists and inexpensive consultations. For those interested in continuing research on the topic, books like Tad Crawford’s Legal Guide for the Visual Artists are also reliable sources of information. Sarmiento’s blog on art and law, Clancco, also offers an insightful exploration of the relationship between art and law.

Sarmiento explains that there has been a dramatic increase in litigation of both copyright and VARA cases. Cases have expanded to include not only artists versus institutions, but also artists versus artists. Artists have become much more educated on their rights and have begun to protect themselves and their work. Previously, an artist would have had to go to a library—perhaps even a law library—to find out more about her rights.

However, the internet has engendered a new wave of education for artists.

The rise of copyright litigation signals a radical shift in the power dynamic for artists. Through easy access to legal information, artists have more power than ever before. In our conversation, Sariemento concluded, “The law is having an effect proactively for artists’ rights. This is a moment when artists can leverage law as a medium and affect the way that art can be produced and received in the 20th century.”

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