The Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A, is a United States law granting certain rights to artists.

VARA was the first federal copyright legislation to grant protection to moral rights. Under VARA, works of art that meet certain requirements afford their authors additional rights in the works, regardless of any subsequent physical ownership of the work itself, or regardless of who holds the copyright to the work. For instance, a painter may insist on proper attribution of his painting, and in some instances may sue the owner of the physical painting for destroying the painting even if the owner of the painting lawfully owned it.

Although federal law had not acknowledged moral rights before this act, some state legislatures and judicial decisions created limited moral-rights protection. The Berne Convention required the protection of these rights by signatory states, and it was in response that the U.S. Congress passed the VARA.

Two recent developments promise to shed more light on the legal status of unauthorized street art, which we explored earlier this year in our post Unchartered Territory: Enforcing an Artist’s Rights in Street Art.

Cohen v. G&M Realty L.P., No. 13CV05612, 2017 WL 1208416 (E.D.N.Y. Mar. 31, 2017).

As discussed in our earlier post, in November 2013, Judge Block of the Eastern District of New York declined to issue a preliminary injunction under VARA that would have stopped property owners’ demolition of 5Pointz “graffiti Mecca” in Long Island City, New York to make way for a residential development.1  In Cohen v. G&M Realty L.P, the plaintiffs argued that they were empowered to prevent the destruction of their mural under the VARA provision that allows an artist to prevent the destruction of his or her work if work is of “recognized stature.”2  The court found that some of the works in the 5Pointz composite piece might qualify as works of “recognized stature,” but otherwise did not carry through with a VARA analysis. Instead, the court declined to issue a preliminary injunction based on its finding that the plaintiffs-artists failed to demonstrate irreparable harm because money damages would be sufficient to compensate them.

The case then moved forward on the artists’ claim for damages.  The defendants moved for summary judgment, contending that the plaintiffs had not made a prima facie case for the “recognized stature” of the 5Pointz murals.  On March 31, 2017, the court denied the defendants’ motion for summary judgment dismissing the VARA claim, allowing the matter to proceed to trial on that claim.  The defendants had argued in part that “the plaintiffs’ expert report focused on the ‘recognized stature’ of the artist, rather than the work itself, in contravention of VARA.”3  The district court rejected this argument, noting that courts have employed various methods to determine “recognized stature” under VARA, including inferring a particular work’s stature based on its creator’s reputation.  The court concluded that, “[w]ith VARA silent as to how a work’s stature may be pegged, acceptance of such methodology in this case has the added benefit of honoring VARA’s broad purpose.”4

Judge Block also rejected the defendants’ contention that the methodology underlying the report on “recognized stature” submitted by the plaintiffs’ expert did not satisfy the minimum standard under the Supreme Court’s Daubert test.  The court found that the plaintiffs’ expert relied on a variety of factors in reaching her conclusion regarding the stature of the plaintiffs’ work, including:

Cohen’s multiple commissions from such entities as Coors, Heineken, Swatch, and Deutsche Bank; another’s commissions from some of Brazil’s famous brands; a third one’s hiring by celebrity clients and a public park; the opinions of leading museum professionals and other artists; the individual artist’s social media followers and their works’ Google hits; flattering newspaper accounts in The Boston Globe, The New York Times, and New York Magazine; academic approval; private and public exhibitions of the artists’ other work throughout the United States and other nations; numerous awards, including induction in the Graffiti Hall of Fame; and more.5

Judge Block found that, by citing such evidence, all of which was relevant to the question of stature, the plaintiffs’ expert adequately explained the documents she reviewed, relevant industry customs and practices, and the general bases for her opinion.  The expert thus satisfied the Daubert minimum, and her opinion would be admissible in evidence for evaluation by the jury, even though the court expressed “some skepticism” regarding its “cogency.”

It would thus appear that—absent an eleventh-hour settlement—we will now have our first VARA trial testing whether unauthorized street art is legally protected from destruction by the owner of the site where the unauthorized art was situated.

Thrasher v. Siegel, No. 2:17-cv-03047 (C.D. Cal. April 24, 2017).

On April 24, 2017, muralist Monte Thrasher brought suit in Los Angeles against various individual and corporate defendants alleging that they had painted over his well-known Six Heads mural in violation of VARA.  Thrasher began working on the Six Heads mural—located on an exterior wall of a building in the Los Feliz neighborhood of Los Angeles—in 1992, and thereafter periodically retouched the mural.  According to Thrasher’s complaint, the defendants painted over the mural in 2014, without first obtaining Thrasher’s permission, so that another mural (commissioned by the occupant of the building) could be painted on the same surface.  Thrasher argues that, by painting over his mural—which included his name and contact information—the defendants infringed his rights of integrity and attribution, in violation of 17 U.S.C. § 106A.  The recently filed complaint does not, however, allege that the mural was of “recognized stature” and therefore protected from destruction.

Given the limited judicial guidance on VARA’s application to unauthorized art, whether and how the Central District of California addresses Thrasher’s claim will be of great interest.

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1. Cohen v. G&M Realty L.P., 988 F. Supp. 2d 212 (E.D.N.Y. 2013).
2. Id. at 215.
3. Cohen v. G&M Realty L.P., No. 13CV05612FBRLM, 2017 WL 1208416, at *3 (E.D.N.Y. Mar. 31, 2017).
4. Id.
5. Id.

As street art – typically painting or drawing on someone else’s wall – grows in status in art circles,1 street artists are finding that their work is increasingly being exploited without their permission. While a number of these artists have attempted to assert copyright2 or Visual Artists Rights Act (“VARA”) rights to protect their work, courts have not yet had occasion to establish a legal framework in which street artists can reliably protect their work because these claims largely have ended in private settlements.

With the increasing appropriation of street art several questions have arisen but are still  unresolved by courts:  Do street artists have copyright in their work?  Should they be able to prevent the unauthorized copying, sale, removal or destruction of their (by and large unauthorized) work?  To the extent copyright offers inadequate protection, may street artists assert VARA rights in their work?

I. Unauthorized Street Art and Copyright

For street artists who create their work on someone else’s property without the property owner’s permission, there is an awkward dilemma:  Should street art which is the result of illegal trespassing and (arguably) criminal mischief3 be entitled to legal protection under federal copyright law?

A. Villa v. Pearson Education, Inc. Casts Doubt on the Copyrightability of Unauthorized Street Art.

The Copyright Act does not explicitly state that illegality in the course of a work’s creation prevents copyrightability or is a defense to an infringement claim. Courts have addressed the copyrightability of unauthorized art on few occasions, without offering clear guidance.

Villa v. Pearson Education, Inc., decided over a decade ago, casts doubt on the copyrightability of unauthorized street art.There, street artist Hiram Villa, known by his pseudonym “UNONE,” brought a copyright infringement suit against Brady Publishing alleging, among other things, that the publishing company reproduced his unauthorized mural in a book without his permission.5  Villa had not registered copyright in his works, however, and the court dismissed the action for that technical reason and declined to exercise supplemental jurisdiction over the artist’s state law claims.6  Villa thereafter obtained a Certification of Registration from the United States Copyright Office and filed a new complaint alleging copyright infringement.  Brady again moved to dismiss the complaint, arguing in part that “the mural in question is not protected by copyright . . . because it is illegal graffiti.”7  The court denied Brady’s motion to dismiss, reasoning in part that Brady’s argument “turn[s] on questions of fact” as it “would require a determination of the legality of the circumstances under which the mural was created.”8  By acknowledging a need to assess the underlying “legality”  of a work’s creation to assess its copyrightability, the court implicitly accepted the defendant’s argument that a work’s unauthorized creation on someone else’s property could be a defense to copyright infringement.  Ultimately, the parties reached a settlement, providing no further guidance on the copyrightability of unauthorized art.

A respectable argument exists that the circumstances in which a work of art was made, or the ownership of the physical object on which the artwork is created, should not affect the artist’s copyright rights in the artwork.  It is a well-established principle of copyright law that copyright is distinct from ownership rights in the physical object embodying the work.  Even if the artist trespassed to make her mural, why should that permit a third party to profit off that mural by using it to sell books or handbags?

Since Villa, several other street artists have brought suit under the Copyright Act attempting to protect their work.  In July 2014, Miami street artist David Anasagasti, better known by his pseudonym “Ahol Sniffs Glue,” sued American Eagle Outfitters, alleging the retail brand reproduced his work in apparel advertising campaigns.9  In August of that year, artist Maya Hayuk sued Coach, the handbag retailer, claiming that the luxury brand prominently featured her “Chem Trails NYC” mural in promoting its apparel and accessories lines.10  Around that time, a trio of California-based graffiti artists sued fashion designer Roberto Cavalli S.p.A. and various retailers for reproducing their mural in marketing clothing and accessories.11  To the dismay of artists desiring legal guidance, however, all these cases settled out of court.

B. Banksy and the Splitting of Rights between Artist and Property Owner

Assuming that unauthorized street art is protectable under the Copyright Act, copyright would still not grant the artist ownership of the tangible medium of expression in which the work is fixed; that belongs to the property owner of the wall (or other object) on which the art has been created.  This tension between property law and copyright law splits between property owner and artist the rights that would otherwise belong exclusively to the copyright holder under Section 106 of the Copyright Act:  The property owner, who owns the physical embodiment of the work, would have the right to display and sell the original work, whereas the copyright holder would have the exclusive right to reproduce the work and prepare derivative works without interfering with the property owner’s rights.

This tension between property law and the Copyright Act led to the situation in 2010 where a property owner, not the artist, sought to protect an artist’s graffiti work.  In that case, Bioresource Inc., claiming ownership of the site of the crumbling Packard Plant in Detroit, sued 555 Gallery over the gallery’s removal of a 1,500-pound cinderblock wall featuring artwork by famously elusive British graffiti artist Banksy.12  Bioresource brought suit in Wayne County Circuit Court, arguing that the mural was worth at least $100,000.13  The parties settled the case out of court, with Bioresource agreeing to donate the mural to the gallery, which in turn agreed to pay Bioresource a symbolic amount.14

II. Unauthorized Art and VARA

In 1990, Congress enacted the Visual Artists Rights Act (“VARA”), codified at Section 106A of the Copyright Act, to protect artists’ moral rights – namely, the rights of integrity and attribution.  Thus, VARA entitles an author of a work of visual art to prevent intentional modification of that work “which would be prejudicial to his or her honor or reputation,” prevent the use of his or her name as the author in the event of prejudicial modification, and prevent destruction of a work of “recognized stature.”15  VARA provides another tool that street artists might employ to protect their creations.

A. English and Pollara: VARA Might Offer Protection for Unauthorized Art

In English v. BFC & R East 11th Street LLC, a group of artists brought suit under VARA seeking a preliminary injunction to prevent the defendants’ unauthorized destruction of their unauthorized murals in a community garden.16  The district court held that VARA does not apply to unauthorized works of art if the works are permanently affixed to the structure, invoking public policy considerations:  “[O]therwise parties could effectively freeze development of vacant lots by placing artwork there without permission.  Such a construction of the statute would be constitutionally troubling, would defy rationality and cannot be what Congress intended in passing VARA.”17  English’s distinction between removable and unremovable works of art suggests that VARA may offer protection for unauthorized art if it is removable.

In Pollara v. Seymour, the Northern District of New York highlighted the same distinction between removable and unremovable works of art.  There, the artist installed a mural in the property owners’ plaza under the incorrect assumption that the company that commissioned her work had obtained a permit.18  The property owner subsequently removed the unauthorized mural from its frame and significantly damaged the work in the process.19  The artist brought suit under VARA, and the property owners moved for summary judgment, arguing in part that the work was not entitled to protection under VARA because the work was installed without permission.  The court rejected this argument, reasoning that there was “no basis in the statute to find a general right to destroy works of art that are on property without the permission of the owner.”20  The defendants further argued the mural was not entitled under VARA to protection against intentional or grossly negligent destruction because it was not a “work of recognized stature.”21  The court declined to resolve this issue on summary judgment, finding that there were questions of fact to be decided.22  Following trial, the court ultimately dismissed the plaintiff’s claim and held that the plaintiff failed to demonstrate that her mural was a “work of recognized stature,” reasoning that the mural evidently was “not intended to have any lasting value.”23  Whether street art may qualify as a “work of recognized stature” was addressed by the Eastern District of New York in assessing destruction to 5Pointz, discussed below.

B. 5Pointz:  Preventing the Destruction of Street Art of “Recognized Stature”

In November 2013, the Eastern District of New York declined to issue a permanent injunction under VARA that would have stopped property owners’ demolition of the 5Pointz “graffiti Mecca” in Long Island City, New York to make way for a residential development.24  In Cohen v. G&M Realty L.P, the plaintiffs argued that they were empowered under VARA to prevent the destruction of their mural under the VARA provision that allows the author of a work to prevent that work’s destruction if it is of “recognized stature.”25  The court found that some of the works in the composite piece might qualify as works of “recognized stature,” but otherwise did not carry through with a VARA analysis.  Instead the court noted that the plaintiffs had failed to demonstrate irreparable harm:

[P]laintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings and VARA—which makes no distinction between temporary and permanent works of visual art—provides that significant monetary damages may be awarded for their wrongful destruction.  In any event, paintings generally are meant to be sold.26

The court further found the “transient nature” of the plaintiffs’ work to be dispositive as to the issuance of an injunction.  According to the court, the plaintiffs had always known that the walls on which they painted their murals would be destroyed.27

Although sympathetic to the artists’ interests – “our souls owe a debt of gratitude to the plaintiffs for having brought the dusty walls of defendants’ buildings to life”28 – the court’s analysis seems to foreclose the availability of injunctions under VARA to graffiti artists, even if they are of recognized stature:   under the court’s reasoning, the availability of statutory damages, the existence of an art market, and graffiti’s very ephemeral nature all mitigate against a finding of irreparable harm.

III. Conclusion

To the dismay of many street artists, it remains unclear whether copyright law affords protection for unauthorized street art.  Villa arguably cast doubt on the copyrightability of unauthorized works over ten years ago, but no subsequent decision has gone so far as to explicitly deny copyright protection on that basis.

Under copyright law, the artist’s rights in street art conflict with those of the property owner insofar as the property owner owns the tangible original work.  The tension between artist’s rights and the property owner’s rights resurface under  VARA, but in a different guise.  In that context, the issue is whether an artist can assert moral rights in street art and thereby freeze the development of a building.  That very policy concern led the court in English to deny VARA protection to an unremovable, unauthorized mural.

Given the unsettled state of the law, there remains the policy-oriented question of whether such works should be copyrightable.  Insofar as copyright law is intended to incentivize creation, assuming that street art is a practice that at least sometimes has value to the public, does the creation of street art benefit under a regime of copyright?  In other words, is copyright necessary to incentivize the creation of more street art?  The proliferation of street art in the absence of robust intellectual property protection probably suggests a negative answer to that particular question.

Conversely, if illegality in creation is a bar to copyrightability, the tension between property rights and copyright still does not disappear.  If we care seriously about property rights, should copyright law extend rights to a book publisher, for instance, seeking to profit from the underlying, unauthorized work?

Finally, there is a fundamental tension when street artists – whose very genre of art is premised on its “outlaw” nature – ask the courts legal protection under the Copyright Act or VARA.

 

1. See e.g., Allison Young, “Making Money by Mocking Power: Inside the New Banksy Exhibition,” CNN WORLD (Oct. 24, 2016), http://www.cnn.com/2016/10/24/arts/the-art-of-banksy-melbourne/ (Stating that street artist Banksy, who has stenciled graffiti in New York, London and Melbourne and other places, “is one of the most influential artists in the world.”); see also, “Street Art Expo NYC 2016 Celebrates Three Generations of Graffiti Art with: Part One, Flint Gennari, Alski, Nic 707, Moody Mutz, Plasma Slug, Chief 69 and more,” Street Art NYC (May 24, 2016), http://streetartnyc.org/blog/2016/05/24/street-art-expo-nyc-2016-celebrates-three-generations-of-graffiti-art-with-part-one-flint-gennari-alski-nic-707-moody-mutz-plasma-slug-chief-69-and-more/; see also Jonathan LeVine Gallery, http://jonathanlevinegallery.com/tag/street-art/; Lowbrow Artique, http://www.lowbrowartique.com/gallery/; Woodward Gallery, http://woodwardgallery.net/; Museum of the City of New York, https://collections.mcny.org/Gallery/24UPN47RMLQ.
2.  Under United States copyright law, a work receives protection if it is an “original work of authorship fixed in any tangible medium of expression.”  17 U.S.C. § 102. A work is “original” if it was “independently created” and possesses “at least some minimal degree of creativity”; it need not be novel.  Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). A work is “‘fixed’ in a tangible medium of expression when its embodiment in a copy . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”  17 U.S.C. § 101. Copyright entitles the owner to a set of exclusive rights, including the right to reproduce the work, prepare derivative works, distribute copies, and, for certain types of works, display the work. 17 U.S.C. § 106.
3.  N.Y. Penal Law § 145.60 makes it a Class A misdemeanor to make an “etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property . . . on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.”
4.  Villa v. Pearson Educ., Inc., No. 03 C 3717, 2003 WL 22922178 (N.D. Ill. Dec. 9, 2003).
5.  Id. at *1.
6.  Id. at *1.
7.  Id. at *2.
8.  Id. at *3.
9.  Anasagasti v. American Eagle Outfitters, Inc., Case No. 1:14-cv-05618 (S.D.N.Y. July 23, 2014).
10.  Hayuk v. Coach Services, Inc. et al, Case No. 1:14-cv-06668 (S.D.N.Y. Aug. 19, 2014).
11.  Jason Williams et al v. Roberto Cavalli, S.p.A. et al, Case No. 2:14-cv-06659 (C.D. Cal. Aug. 25, 2014).
12.  The Associated Press, Banksy Battle: Packard Plant Ownership Sues Detroit Art Gallery for Removal of Graffiti Mural, MICH. LIVE (July 7, 2010), http://www.mlive.com/news/detroit/index.ssf/2010/07/banksy_backlash_packard_plant.html.
13.  Id.
14.  Anne Laure Bandle, Andrea Wallace & Marc-André Renold, Banksy Mural – Bioresource, Inc. and 555 Nonprofit Studio/Gallery, Platform ArThemis, https://plone.unige.ch/art-adr/cases-affaires/banksy-mural-2013-bioresource-inc-and-555-nonprofit-studio-gallery.
15.  17 U.S.C. § 106A.
16.  English v. BFC&R E. 11th St. LLC, No. 97 CIV. 7446 (HB), 1997 WL 746444, at *1 (S.D.N.Y. Dec. 3, 1997), aff’d sub nom. English v. BFC Partners, 198 F.3d 233 (2d Cir. 1999).
17.  Id. at *4.
18.  Pollara v. Seymour, 150 F. Supp. 2d 393, 394 (N.D.N.Y. 2001).
19.  Id.
20.  Id. at 396 n.4.
21.  Id. at 396.
22. Id. at 399.
23.  Pollara v. Seymour, 206 F. Supp. 2d 333, 337 (N.D.N.Y. 2002), aff’d, 344 F.3d 265 (2d Cir. 2003).
24.  Cohen v. G&M Realty L.P., 13-CV-5612 (FB) (E.D.N.Y. Nov. 20, 2013).
25.  Id. at 3.
26.  Id. at 24-25 (citation omitted).
27.  Id. at 26.
28.  Id. at 23.

 

Nathan Cole and Joanna Liu assisted with the drafting of this post.

On August 23, 2016, Judge Gary Feinerman of the Northern District of Illinois ruled in Fletcher v. Doig in favor of artist Peter Marryat Doig, finding that Doig did not create a painting owned by plaintiff Robert Fletcher.1

Plaintiffs, Fletcher and his gallerist Peter Bartlow, filed suit against Doig in 2013, claiming that Doig tortiously interfered with their attempted sale of an abstract desert landscape painting (“Desert Landscape”) and seeking $7.9 million damages, plus costs and a declaratory judgment that Doig created Desert Landscape. Doig maintained that he was not the creator of Desert Landscape. Doig had to expend significant resources defending himself against Plaintiffs’ claims, and ultimately uncovered the actual creator of Desert Landscape. Before the seven-day bench trial, Judge Feinerman denied Doig’s motion to dismiss for lack of personal jurisdiction and for forum non conveniens, denied Doig’s summary judgment motion, and denied Doig’s motion in limine to exclude plaintiffs’ expert witnesses. After the bench trial, Judge Feinerman orally delivered his decision, in which he concluded that any similarities between Desert Landscape and Doig’s authentic paintings were “purely coincidental.”

The case raises the obvious question: why isn’t an artist’s assertion that he has not created a work enough?

Creator: Doige vs. Doig

Plaintiff Fletcher, a former corrections officer at Thunder Bay Correctional Center in Thunder Bay, Ontario, bought Desert Landscape in 1976 for $100. Plaintiffs claimed that Fletcher met Peter Doig in the 1970s, first at Lakehead University in Ontario and subsequently at Thunder Bay. Plaintiffs asserted that Fletcher was friendly with Doig while Doig spent five months at Thunder Bay for LSD possession, and that they remained in contact while Doig was on parole. During this time, plaintiffs claimed, Fletcher encouraged Doig’s art career and bought Desert Landscape. When Fletcher and Bartlow attempted to sell that work more than thirty-five years later, however, Doig, whose Swamped (1990) sold for $25.9 million at Christie’s New York in May 2015, denied that the painting was his creation. Doig asserted that he was never at Thunder Bay, he never met Fletcher, and he did not paint Desert Landscape.

Plaintiffs argued that Doig was either confused or lying. They pointed to supposedly uncanny similarities between Desert Landscape and other paintings from Doig’s oeuvre, the fact that Doig was in Canada in the 1970s, and Doig’s public admissions that he took LSD.

Doig argued that the dispute was a matter of mistaken identity. In moving for summary judgment, he pointed out that Desert Landscape was signed “’76, Pete Doige” – not his name – with a signature different from his own. He also presented evidence of the deceased amateur painter Peter Edward Doige, who lived in Ontario in the 1970s, was enrolled at Lakehead University (at the same time as Doig), spent time at Thunder Bay Correctional Center, and took art classes while serving his sentence. Additionally, Doig’s legal team provided school records, yearbook photos and a list of thirty witnesses who could attest to the fact that Doig was not at Thunder Bay in 1976. Despite this evidence, Judge Feinerman denied summary judgment.

Expert: Bartlow vs. Schiff

At trial, plaintiff Bartlow’s expert testimony was the primary evidence introduced by plaintiffs to establish a link between Desert Landscape and Doig’s style. Bartlow was not familiar with Doig’s artwork before Fletcher contacted him to sell Desert Landscape, but he subsequently devised a method for comparing that painting to Doig’s acknowledged paintings (which Doig’s counsel dubbed the “Bartlow Method”), concluding that Desert Landscape contains patterns that Doig repeatedly uses. At trial, Bartlow superimposed a transparency of known Doig paintings over an image of Desert Landscape and then rotated the transparency to reveal shapes or lines with approximately matching form and placement. During cross-examination, however, Doig’s counsel demonstrated that this method could also be used to match Desert Landscape to paintings by Leonardo da Vinci and René Magritte.

Richard Shiff, an art historian at the University of Texas, provided expert testimony on behalf of Doig. Shiff, who presented himself as a connoisseur of Doig’s work, said that the Bartlow Method was “entirely unreliable” and questioned Bartlow’s objectivity in light of his economic interest in the sale of Desert Landscape.”2 Shiff based his opinion that Doige (not Doig) painted Desert Landscape on a conversation with Doige’s sister and on his examination of other paintings by Doige.

Questioning the Court’s Qualifications as Authenticator

Generally, artwork authentication is clear-cut if the artist is alive, because the artist’s statement is sufficient. Most authentication disputes arise because the artist is deceased, or because a living artist disclaims the work as his or her own due to deterioration or damage. This case was different because the court took into its own hands the question of whether a living artist who disclaimed a work had created that work in the first place. The University of Glasgow’s Donna Yates discusses this “uncharted territory” of authentication for Apollo Magazine here. Yates, like many others, expressed shock that this lawsuit wasn’t “instantly dismissed as frivolous,” called the case “absurd” and was “relieved” that Doig won. Doig stated that this case could set a “dangerous precedent” where “[t]he final authority for authentication of a work of art would no longer be the surviving artist himself, but a judge or jurors who are at best nominally familiar with the classification of works of art or artistic practice.”

Artists have a right to disclaim authorship of “any work of visual art which he or she did not create” under the federal Visual Artists Rights Act (“VARA”), called their right of attribution. VARA also gives artists a right of integrity, i.e., the ability to disclaim authorship of a work of visual art if that work has been distorted, mutilated or otherwise modified in a way that is prejudicial to his or her honor or reputation.

Yet there is a rationale that could justify a trial under some circumstances, despite a living artist’s disavowal of a work. In New York, the Appellate Division, First Department, looked to the possible bad-faith motivations of an artist for disclaiming a work in finding that the artist could have been its creator, despite his claim otherwise. In a case involving the Polish-French artist Balthus, the New York court found it possible that apparent “personal animus against his former wife” could explain the artist’s false disavowal, and reversed and remanded a trial court’s ruling that both a preparatory sketch and a well-known oil painting were not by the artist.3 The First Department noted that defendant’s expert had suggested that Balthus had repudiated other works in the past “to punish former lovers or dealers with which he has had disagreements.”4

Here, there was no basis to question the artist’s good faith: Doig had no relationship with plaintiffs and did not stand to gain in any way by rejecting the work.

While the Doig case may be an outlier, it also may affect the ability of other living artists to authenticate their own work definitively, without risk of liability and not subject to the second-guessing by judges and juries. In addition, it may indirectly strengthen the hand of art authenticators – who have been subject to legal threats and claims in recent years to such an extent that several foundations have ceased offering authentication services altogether. The travesty that unfolded before Judge Feinerman could be the catalyst needed to push through a bill introduced in the New York State Legislature to protect art experts from frivolous lawsuits by permitting a court to shift onto a losing plaintiff the attorney’s fees incurred by the art authenticator in defending his or her opinion. (That bill was blocked in the last session of the New York State Assembly because of general opposition to fee-shifting provisions.)

Katharine Haydock assisted with drafting this post.

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1. 13-cv-03270 (N.D. Ill.).
2. Bartlow was to receive a 25% commission on that sale.
3. Arnold Herstand & Co. v. Gallery: Gertrude Stein, Inc., 211 A.D.2d 77, 83 (1995).
4. Id.

In a recent decision, the Ninth Circuit Court of Appeals adopted a utility-based standard for determining when a work of art is deemed “applied art” and therefore not entitled to protection under the Visual Artists Rights Act (“VARA”).1  VARA was enacted in 1990 as an amendment to the Copyright Act, and incorporated the concept of droit moral to prohibit the “intentional distortion, mutilation or other modification” of a work of visual art, rather than a work of “applied art.”2  In Cheffins v. Stewart,3 the appeals court held that the appropriate standard for determining whether a work of art is ineligible for protection under VARA as “applied art” is whether the work “was – and continues to be – utilitarian in nature.”4

This ruling poses substantial obstacles for works that contain a utilitarian function to receive protection under VARA.  Despite the court’s attempt to clarify the difference between “applied art” and “visual art,” its analysis also may create more uncertainty for artists who seek to bring a VARA claim, since many art works contain utilitarian aspects, and it is unclear when a retained utilitarian function becomes significant enough to result in a work being deemed “applied art.”

The appeal arose from a dispute between the owners of La Contessa, a former school bus transformed into a replica of a 16th century Spanish galleon, and the defendant, who had purchased a plot of land on which the owners stored La Contessa.  For years, La Contessa transported attendees at the Burning Man Festival in Nevada, but the festival ultimately banned it as unsafe for transportation.  At that point, La Contessa moved to a plot of land that the defendant subsequently purchased; he then burned the wooden galleon enhancements in order to sell the underlying bus to a scrap metal dealer.  The owners of La Contessa sued the defendant on the basis that his destruction of La Contessa violated VARA because he intentionally damaged the work.  The defendant argued La Contessa was not protected by VARA because it fell under the category of “applied art,” not “visual art.”  The District Court agreed, ruling for the defendant on summary judgment.

The Ninth Circuit affirmed the District Court’s judgment, ruling that “La Contessa plainly was ‘applied art’” not protected by VARA given the school bus’s original utilitarian purpose and its fundamentally utilitarian nature after embellishment by the artists.5  Recognizing that VARA does not define “visual art” or “applied art,” the appellate court adopted a standard where “the focus of [the] inquiry should be on whether the object in question originally was – and continues to be – utilitarian in nature.”6  If the object retains a significant utilitarian purpose, then it constitutes “applied art” unprotected by VARA.  In adopting this test, the court hoped to avoid the need for courts to critique art or weigh the importance of artistic qualities when analyzing whether a work is protected by VARA.

Applying this test to the facts, the majority noted that La Contessa began as “a simple school bus – an object which unquestionably served the utilitarian function of transportation,” and while the creators adorned the bus with various “elaborative decorative elements” that had “many artistic qualities,” the primary function of La Contessa remained utilitarian.7  The work was used for transportation at the Burning Man festival and also served as a stage for performances and shows.8  As such, La Contessa “continued to serve a significant utilitarian function upon its completion” and therefore constituted “applied art.”9

Judge McKeown, writing in concurrence, disagreed with the majority’s “utilitarian” test and instead proposed a more nuanced, flexible approach in determining the nature of works so as not to “unduly narrow the protections of artists under [VARA].”10  Judge McKeown stated that the appropriate question to ask when determining whether a work of art constitutes applied art is whether “the primary purpose of the work as a whole is to serve a practical, useful function, and whether the aesthetic elements are subservient to that utilitarian purpose.”11  To highlight the flaws she perceived in the majority’s ruling, Judge McKeown described numerous historic works of art that would not be protected as visual art, including the Caryatids of the Acropolis and the monumental carvings of Ramses at the temple of Karnak, as these works retained a significant utilitarian function as they “are in fact columns that provided buildings with structural integrity.”12

Although the Court of Appeals hoped to avoid a need for “line drawing” when defining applied art,13 the test the majority adopted may not provide the clarity and objectivity for which it hoped.  Lower courts will still need to determine when a retained utilitarian purpose is “significant,” which may draw them into a quagmire of artistic analysis.  For example, when weighing the “significance” of the utilitarian purpose, should a court look to the artist’s intent for the work, or a subsequent owner’s actual use?  Will a work’s artistic merit inherently reduce its utilitarian significance?  Does the significance of the utilitarian function change over time, as advances in design and technology render the utilitarian function obsolete?  Further, by articulating such a stringent standard, the Ninth Circuit increased the likelihood that lower courts will classify any work that contains a subsidiary utilitarian element as “applied art.”  This will significantly narrow the reach of VARA and deter artists from bringing claims with respect to destruction of works that may incorporate utilitarian elements, thusly undermining one of VARA’s main goals.  Judge McKeown hoped to avoid such a scenario by arguing that the court’s focus should be on the “primary purpose” of a work, which acknowledges the possibility that both a utilitarian and visual purpose may co-exist in a work, and would ultimately provide greater protection to artists and their works.


1. This standard largely conforms to those promulgated by the Second Circuit in Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995) (holding that a sculpture constructed of portions of a school bus and affixed to a wall in a building lobby was not “applied art”) and Pollara v. Seymour, 344 F.3d 265 (2d Cir. 2003) (holding that “VARA may protect a sculpture that looks like a piece of furniture, but it does not protect a piece of utilitarian furniture, whether or not it could arguably be called a sculpture.”).
2. See 17 U.S.C. § 106A(a).
3. No. 12-16913 (9th Cir. June 8, 2016).
4. See id. at 10.
5. Id. at 13.
6. Id. at 10.
7. Id. at 13.
8. Id.
9. Id.
10. Id. at 18.
11. Id. at 19 (emphasis added).
12. Id. at 24.
13. Id. at 11.