Art law Pacific Standard Time USA

This copyright confusion ought to end

The Visual Artists Rights Act does protect America’s site-specific work, despite recent rulings

Growing injustice: Chapman Kelley’s wildflower garden in Chicago’s Grant Park has been the subject of long-running litigation after park officials substantially altered it without the artist’s permission

What is it about the US Visual Artists Rights Act (Vara) that causes people to do such strange things?

Los Angeles’ murals are disappearing under layers of graffiti because state officials believe Vara prevents them from touching the murals (see p35). This despite the fact that Vara contains an explicit exception for modifications “which [are] the result of conservation”. If you spray paint a sculpture I own, it’s not a Vara violation for me to clean off the spray paint.

But these California officials aren’t the only ones to get tangled up interpreting Vara. Federal judges do it all the time too.

A few years back, in a case called Phillips v Pembroke, the United States Court of Appeals for the First Circuit held that Vara did not apply to site-specific works. On that court’s reasoning, because Vara always allows a work to be moved (the so-called “public presentation” exception), and to move a site-specific work is, by definition, to destroy it, it follows that site-specific work cannot be the type of work the statute is meant to protect. “Vara does not protect site-specific art,” the court held, “and then permit its destruction by removal from its site pursuant to the statute’s public presentation exception.”

In a more recent case, involving wildflower artist Chapman Kelley, the trial court adopted the same reasoning, but, on appeal, the Court of Appeals for the Seventh Circuit suggested, more sensibly, that an “all-or-nothing approach to site-specific art may be unwarranted… Site-specific art—like any other type of art—can be defaced or damaged.”

That seems obviously right. The Phillips v Pembroke rule would allow any sort of modification or distortion of a site-specific work. Someone could go into the park at night and splash red paint all over Kelley’s wildflower installation or shave a swastika into it. Isn’t that exactly the kind of thing the statute was meant to prohibit? Can it really be OK to deface some works (those that we call “site-specific”) but not others (those that have not acquired that description)? Somehow, that is exactly how two separate federal courts have interpreted Vara.

Or take Mass MoCA’s 2007 lawsuit against artist Christoph Büchel. In that case, after a planned exhibition fell apart before the work could be completed, Büchel claimed that the museum went on to modify the work, often contrary to his instructions and without his approval. (Full disclosure: I represented Büchel in the dispute.) The trial court, while stopping short of categorically holding that Vara does not apply to unfinished works, nevertheless repeatedly expressed scepticism about the possibility. At one point, it noted that “unfinished art may not be covered by Vara at all”.

But where did it ever get that idea? The language of Vara itself does not address the issue one way or the other. But Vara is not a stand-alone law: it is a part of the US Copyright Act, which does say, quite clearly, that “where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time” (17 USC 101, emphasis added). Another way to describe a work, only a portion of which has been fixed at a particular time, is “unfinished”. As the appellate court in the case concluded, “the statute’s plain language extends its coverage to unfinished works.”

So what is going on here? Why would a federal court suggest that Vara does not apply to unfinished works? Why would more than one court rule that because a work is site-specific it loses all protection under the statute? And why would local officials conclude that they are prevented by Vara from removing graffiti from important murals?

I’m not sure, but each of these cases involves a departure from the plain language of the statute. The definition of “work” in the Copyright Act—and therefore Vara—clearly includes unfinished works. There is no distinction in the language of the statute between site-specific and non-site-specific works. There is a clear exception under the law for conservation. Art may be mysterious, but Vara is not. Stick to the text.

The writer is a partner in the law firm John Silberman Associates PC, New York

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