By Monique Brown, 3L at University of Tennessee College of Law and Spring 2019 Semester-in-Residence Participant. Image by Pelle Sten, via Flickr.
If you are a visual artist, you have legal rights! The Visual Artists Rights Act (“VARA”) was adopted in 1990 as an extension of the Copyright Act of 1976, and it provides special legal protections for visual artists who create certain kinds of visual art.
VARA is the first piece of copyright legislation to grant protection for “moral rights.” Moral rights are a bundle of rights that protect and preserve the integrity of an artist’s work.
What kinds of works are protected by VARA?
VARA protects paintings, sculptures, drawings, prints, and still photographs produced for exhibition. Under VARA, a work of “visual art” is limited to only single copies, or signed and numbered limited editions of 200 or less. Additionally, certain types of works are excluded from VARA’s protection. Some examples of exclusions are posters, maps, globes, charts, technical drawings, diagrams, models, and electronic publications.
What “moral rights” do I have under VARA?
If you are a visual artist, VARA protects your right to claim authorship of works you created. Conversely, VARA also protects your right to prevent the use of your name on any work you didn’t create, or on any works you did create that have been distorted, mutilated, or modified in a way that would be prejudicial to your honor or reputation. Lastly, VARA protects your right to prevent distortion, mutilation, or modification of your art if it would prejudice your honor or reputation.
So, what does that mean for you?
Although VARA is a powerful piece of legislation for visual artists, it is important to be aware of the exceptions in the statute. VARA only applies to the protected class of works listed above, and does not apply to modification that is a result of a work’s inherent nature. For example, if a sculpture made of ice melts, the sculptor couldn’t file a VARA claim. VARA also does not apply to modifications that occur because of lighting and placement, unless the modifications were the result of gross negligence; for example, a textile’s natural fading over time wouldn’t trigger a VARA claim.
As a visual artist, these moral rights belong only to you and they can’t be transferred. You can, however, waive your rights under VARA if you sign a written waiver agreement.
Additionally, only the author of a work of visual art can make a legal claim under VARA; whether the author is the copyright owner is irrelevant to a claim under VARA.
What have courts said about VARA?
Several courts have addressed VARA; most recently, a federal district court judge in New York held that street graffiti art was protected under VARA, and that the destruction of the building covered in artists’ graffiti work was a violation of VARA. (An example of the graffiti murals created by the plaintiffs in that case is at the heading of this blog post). The judge ordered a developer to pay $6.8 million to the group of street artists who created the graffiti. This case was a very important and instrumental case for visual artists because it showed that violating VARA could result in hefty rulings.
For more information on visual artists’ rights and VARA, be sure to attend our Legal Issues for Artists workshop on May 8, 2019, brought to you in partnership with Cultural Arts Murfreesboro.