Is your restaurant tenant planning to have a mural painted? Are you planning to install a sculpture in the lobby of one of your buildings? Be cautioned that it might not be easy to remove that work and you might find yourself on the wrong end of a lawsuit if you damage the work. Even after artists transfer their ownership interests in artwork they created, they still may have rights known as “moral rights” to works located on your property. Here’s the skinny on what you need to know about moral rights and how they can affect your property.
The Visual Artists Rights Act (“VARA”) is an amendment to the federal copyright law that grants certain moral rights to visual artists, including the rights of attribution and integrity. Under the right of attribution, an artist has the right to claim authorship of her work and to prevent the use of her name as the author of: (i) any artwork she did not create or (ii) any artwork that has been distorted, mutilated or modified in a way that is prejudicial to her honor or reputation. Under the right of integrity, the artist may generally prevent: (i) any intentional distortion, mutilation or modification of an artwork that is prejudicial to her honor or reputation and (ii) the destruction of any work of recognized stature.
Importantly, artists maintain these rights regardless of whether they have sold or otherwise transferred the artwork or their copyright interests in the work. For works created on or after June 1, 1991, the effective date of VARA, the rights provided for endure for the life of the artist, or in the case of a joint work, the life of the last surviving artist. These rights may not be transferred, but they can be waived by a writing signed by the artist.
Certain exceptions to these rights exist. For example, modifications caused by the passage of time (such as fading or dulling) or the inherent nature of the materials used to create the artwork do not violate an artist’s rights under VARA. Additionally, modifications resulting from conservation (e.g., re-touching) or the public presentation (including lighting and placement) of an artwork are not VARA violations unless the modifications are caused by gross negligence. Moreover, the law only applies to a “work of visual art,” which is defined to include paintings, drawings, prints, sculptures and artistic photographs, existing in a single copy or in a limited edition of 200 copies or fewer. Posters, maps, globes, charts, technical drawings, diagrams, models, applied art, motion pictures and other audio-visual works are specifically excluded from the definition of that term. Additionally, works “made for hire,” which are works that are prepared by an employee within the scope of her employment, are not protected under VARA.
Of interest to building owners is the so-called “building exception,” which applies to works “incorporated in or made a part of a building in such a way that removing the work from the building will cause modification of the work.” These works do not get protection from modification if the artist consented to the installation of his work in the building (if pre-VARA) or if the building owner and the artist executed a written acknowledgment that removal of the work may subject it to modification (if post-VARA). In addition, the right of integrity does not apply where an artwork can be removed without damage from a building, provided the building owner either makes a diligent, good-faith attempt without success to notify the artist of the intended removal or provides notice to the artist, who fails to remove the work or pay for its removal. When the building owner has complied with this notice requirement, the artist has no claim under VARA when the work is removed.
Since its enactment over twenty years ago, courts have decided several hard cases interpreting the language of VARA. In the real estate context, several courts have grappled with cases questioning whether the statute applies at all to the artwork in question. For example, in Carter v. Helmsley-Spear, Inc. , 71 F.3d 77 (2d Cir. 1995), a trio of artists filed a lawsuit to prevent a building owner and manager from altering artwork that they were commissioned to create for a commercial building located in Long Island City, including several sculptural forms that they affixed to the walls and ceiling of the building’s lobby. In that case, the court rejected the landlord’s claim that the work was “applied art” since it was affixed to the building, but nonetheless dismissed the artists’ case because the court found the artwork was “work made for hire,” and therefore not a work of visual at under VARA. In Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006), an artist tried to prevent a manager of a public park from removing several sculptures that he created specifically for the park, including stone forms that were integrated into the landscape of the park. The artist eventually lost the case after an appellate court ruled that his sculpture was site-specific artwork, which is not covered by VARA. This ruling was called into doubt by a court which recently dismissed on other grounds an artist’s VARA claim challenging the modification of a wildflower garden he created for a city park. See Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011). Although the property holders prevailed in these cases, they had to endure protracted legal battles in order to resolve the artists’ claims under VARA.
The Take Away
Before artwork is installed on your building, you might want to consider whether to add language in your agreements protecting you from potential VARA claims. If you are commissioning artwork to be displayed on your building, you should consider whether to include a provision in your commission agreement whereby the artist waives any and all moral rights, including the artist’s rights under VARA. If you want to hire an artist to create artwork to be incorporated into your building in such a way that removal would damage the work, you should also consider obtaining a written acknowledgment signed both by you and the artist stating that the installation of the work may subject the work to damage. You should also keep records that include the artists’ contact information and update these records regularly so that you can comply with your notification obligations in the event that you wish to remove an artwork from your premises.
If you think your tenant may commission artwork to be installed in a leased premises, you might want to consider including in the lease the tenant’s agreement to obtain a VARA waiver from any artist hired to create artwork for display on the premises. You also may want to include in your lease a provision whereby the tenant would indemnify you for any damages incurred as a result of a VARA claim.