Moral Rights Under The Visual Artists Rights Act (VARA)

Moral rights refer to the personal rights of creative artists to control the display and alteration of their works and use of their names. Artists have a continuing relationship with their works, even if they do not own the actual physical works or copyrights to the works. Moral rights are based on the understanding that artists’ reputations depend on the presentation of their works, and that unauthorized attribution, modification, or desecration can damage artists’ reputations. The Visual Artists Rights Act of 1990, also known as VARA, is a federal law that protects the moral rights of visual artists.

Rights of Attribution and Integrity

VARA addresses visual artists’ rights of attribution by establishing rules about identifying authorship of works. Visual artists’ rights of integrity are granted under VARA through rules related to the modification of works. VARA states that an author of a work of visual art has the right:

• To claim authorship of that work;
• 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;
• 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;
• 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
• 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.

A work of “recognized stature” under VARA is protected from unauthorized destruction, but VARA does not define “recognized stature.” Courts have deemed “recognized stature” to mean meritorious work by “art experts, other members of the artistic community, or some other cross-section of society.”

Duration

For works created after the 1990 law went into effect, the artist’s moral rights last as long as the life of the artist. For works created before the VARA’s enactment, the rights are of the same duration as the copyright, which are generally as long as the life of the author plus 70 years. For works created by more than one artist, the moral rights last as long as the life of the last surviving artist.

Limitations

VARA applies to specific works of visual art, defined as “paintings, drawings, prints, sculptures and still photographic images,” and only if the works are “produced for exhibition purposes” and “[exist] 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.” VARA does not protect any “poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, merchandising item or advertising, promotional, descriptive, covering, or packaging material or container.” VARA also does not cover work made for hire, or work that is not under copyright protection. These limitations are significant and important to know because artists creating work for their employer, for commercial purposes, for a publication, or under the numerous other conditions described in this section would not have VARA applicable to that work.

Exceptions

Natural changes resulting from the “passing of time, or the inherent nature of the materials” are not protected by VARA. Additionally, modifications as a result of “conservation, or of the public presentation, including lighting and placement” are not protected, unless the modifications are grossly negligent. Further, the right of attribution does not apply to reproductions, depictions, or portrayals of the original works.

Waiver and Transfer

VARA allows express, written waiver of moral rights by artists. For works created by two or more artists, one artist’s waiver of rights can sufficiently waive the rights of all artists within the group. A waiver of rights under VARA does not mean a transfer of title or copyright to the work unless the artist expressly agrees in writing. Unless there is an explicit, written transfer by the artist, rights under VARA cannot be transferred even if there is a transfer of ownership of the actual physical work or copyright of the work.

State Moral Rights Laws

Several states have adopted moral rights laws that work in combination with VARA and provide even greater protection. The California Art Preservation Act, also known as CAPA, prohibits intentional “defacement, mutilation, alteration, or destruction” of fine art and allows the artist to claim or disclaim authorship for “just and valid reason.” Fine art is defined as “an original painting, sculpture, or drawing, or an original work of art in glass, of recognized quality,” not including work for hire for commercial use.

Kent Twitchell v. West Coast General Corp: A Lawsuit Under VARA/CAPA

American muralist Kent Twitchell created The Ed Ruscha Monument, a six-story mural on the side of a federal government-owned building in Los Angeles, over the period of nine years between 1978 and 1987.  In 2006, his mural was painted over without Twitchell’s notification or consent, in violation of VARA and CAPA. Both laws prohibit the destruction of certain public artwork without 90 days notice to the artist and an option for the artist to remove the work himself.  Twitchell sued the US government and 11 other defendants, including contractors and managers who maintained the building and were involved in destruction of the work. In 2008, Twitchell settled his lawsuit for approximately $1.1 million, the largest settlement ever awarded to an artist under VARA and CAPA at the time of this writing.

What You Should Do to Protect Your Moral Rights

If you are an artist creating work, know that you possess the moral rights contained within VARA if the work meets all of the specified requirements. If your work doesn’t fall under the strict definition of visual art under VARA, you are not protected under VARA and should negotiate for moral rights within contracts relating to the use and/or sale of your work. Even if you are protected under VARA, it is good practice to have your rights explicitly laid out in a contract with users and/or buyers of your work. Also be careful when waiving your moral rights, if you decide to do so. A waiver of moral rights must be explicitly written to specify the identity of the work and the circumstances under which the waiver applies.

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