Visual Artists Rights Act (VARA) of 1990

Prepared by IMUA's
Arts & Records Committee

Copyright ©2006 Inland Marine Underwriters Association

The Inland Marine Underwriters Association [IMUA] is a not-for-profit national trade association focused on the commercial inland marine line of business. IMUA was organized in 1930 as a national trade association and rating bureau for all inland marine classes. In 1948 the rating bureau activities of the IMUA were transferred to the Inland Marine Insurance Bureau (now defunct) due to the 1944 US Supreme Court decision in the South-Eastern Underwriters Association case.

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INTRODUCTION

The Visual Artists Rights Act of 1990 [VARA] - 17, U.S.C. § 106A is a United States law protecting artist’s rights. For the first time federal law recognized an artist’s moral rights in his/her works of art beyond traditional property law. Since the Act is of rather recent vintage, conflicting interests were inevitable, and to this day there are debates and law suits over interpretations.

Members of the IMUA Arts and Records Committee wrote this report in order for underwriters to become more familiar with this law as it may have implications in underwriting works of art. Additionally, there is the possibility of increased claims payments for works that this law applies to.

WHAT IS "a work of visual art"?

There are essentially two legal regimes that define a "work of visual art" - VARA and US copyright law. In Sec. 602. a "work of visual art" defined as follows:

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

THE VARA STATUTE

Looking at the pertinent section of the statute, one finds the following:

(A) Rights of Attribution and Integrity.- Subject to section 107 [the fair use section] and independent of the exclusive rights provided in section 106, the author of a work of visual art-
(1) shall have the right-
(a) to claim authorship of that work, and
(b) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113(d), [the provisions dealing with the destruction of a building etc. containing a work of visual art] shall have the right-
(a) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(b) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

STATE STATUTORY LAW

Although most state moral rights legislation has been pre-empted by VARA, some state 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.

What rights does an artist have once the work is sold?

Until VARA was passed in 1990, artists in the United States had little or no means to protect their works of art from misattribution, mutilation or destruction. 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 credited as the author of the work.

VARA Considerations When Valuing Damaged or Restored Works of Art

While the Visual Artists Rights Act may apply to only a limited number of works of art which qualify for consideration, the underlying principles behind the act are drawn from cases which have wide valuation applications.

Basically, the owner of a work of art does not want the creator of that work disowning a piece because it has been altered in a way which now obscures the original aesthetic intent of the artist. Consequently those involved in the restoration of damaged works of contemporary art would be wise in seeking the advice and approval of the artist when undertaking the restoration. Otherwise, there is always the risk that the artist may disown the work after restoration, claiming that it is no longer the "original" work. And, if this happens the value of the piece will probably be diminished.

The question of whether a work retains its originality after restoration pertains to works by both living and deceased artists and examples in both fine arts and decorative arts. For example, while a high level of restoration is tolerable in pieces of European furniture, the same cannot be said about pieces of American furniture. A refinished piece of 19th century German Biedermeier furniture will most likely be more desirable after restoration while a refinished piece of 18th century American furniture may have lost most of its value if the original finish is removed.

When it comes to works of fine arts, such as a painting, the situation can be even more complex and it sometimes may provoke a law suit. The de Balkany case, heard in the United Kingdom, involves a painting by the deceased Austrian artist, Egon Schiele (d. 1918). While all experts agreed that the work in question was originally painted by Schiele, the legal question was whether the amount of repaint visited on the original piece rendered it no longer "original." Ultimately the court determined that since the painting now has approximately 90% repaint, it can no longer be considered as an original Schiele. While this particular case is not necessarily legal precedent with regards to VARA - Schiele is deceased - a living artist may still invoke VARA even if the restoration is minimal.

The VARA legislation raises the bar for fine arts which qualify for consideration. Now, not only can an artist disown a piece within the narrow corridors of the art market, the artist now has an additional forum for redress, i.e. the courts.

The case that set the stage for the enactment of VARA legislation concerned a sculpture, Tilted Arc, by the well-known sculptor Richard Serra. In the mid 1980s, the General Service Administration, responding to public demands, removed the Serra sculpture from the front of the Federal Building in Manhattan, and placed it in storage in a now deconstructed form. Since VARA did not exist at the time, Serra sued the US government claiming that his first amendment rights of artistic expression had been violated by the removal of a sculpture that was created as the result of a site-specific agreement. While the court agreed that the sculpture may have lost some of its artistic value because it had been removed from its original site, it could, nonetheless, be reassembled at a new site. Serra lost the case; however, this significant loss inspired the passage of VARA shortly thereafter to protect artists' rights in the future.

Subsequent to the passage of VARA in 1990, a significant decision was handed down by the courts in Carter v. Helmsley Spear. This case involved several works of sculpture by three artists, which had been created for a building purchased by Helmsley Spear in New York City. After the works had been installed, Helmsley Spear informed the artists that they intended to remove the sculpture.

The artists sued under VARA. They were able to convince the court that the sculpture met the high and specific requirements to be considered under VARA -- i.e. that the artists were independent contractors and not employees of the building, therefore the artwork could not be considered "work for hire"; that the work was visual art and not applied art; that the artists were of "recognized stature"; and, that the artists reputations would be affected if the work were to be removed. Consequently, an injunction against removal was granted.

There are meaningful lessons from this brief review for underwriters and their clients when contemplating the restoration of damaged works of visual arts. They would be well advised to work with professional appraisers who would know what benefits to the value of damaged art the restoration would bring. Questions should be addressed such as -

• should the living artist be consulted in the process of restoration; and,
• will the original artistic intention of the piece be compromised by the contemplated restoration?

For further information

Visual Artists Rights Act: http://www.copyright.gov/title17/92chap1.html.

Life After the Federal Visual Artists Rights Act: http://www.artslaw.org/VARA.HTM

Beyond Copyright: Do Artists Have Rights: www.studiolo.org/CIP/VARA/CIP-VARA.htm

Guide to the Visual Artists Rights Act: http://www.nyartsalive.com/vara.html

Visual Artists Rights Act: Ivan Hoffman, B.A., J.D.: http://www.ivanhoffman.com/vara.html