On October 27, 2017, the New York Chapter of the Copyright Society of the USA hosted a panel exploring the history, caselaw and policies underlying the Visual Artists Rights Act (“VARA”).[1]  The panel featured Amy Adler, Emily Kempin Professor of Law at New York University School of Law; Irina Tarsis, Founder and Director of the Center for Art Law; and Daniel H. Weiner, Partner at Hughes Hubbard & Reed LLP.  Barry Werbin, Counsel at Herrick, Feinstein LLP, moderated the panel.  Each of the panelists’ unique VARA experience engendered a well-rounded review of a hot area of law.  Fittingly, the panel took place during the second week of the “5Pointz” jury trial, in which the very issues under discussion were being litigated before Judge Block of the Eastern District of New York.[2]

Enacted in 1990, VARA provides artists with “moral rights” protection for their visual works of art, provided the works themselves meet certain requirements.[3]  The two main protections VARA offers are the “right of attribution” and the “right of integrity.”[4]  The right of attribution grants the artist the right to claim authorship of her work (in other words, to prevent the attribution of the artist’s work to someone other than herself) and to prevent the false attribution to her of a work of art she did not create.[5]  The right of integrity grants the artist the right to prevent any intentional modification of her work that would be “prejudicial to his or her honor or reputation.”[6]  The right of integrity also grants an artist the right to prevent the destruction of her work of art so long as that work has achieved “recognized stature.”[7]

Dan Weiner started off the panel by looking back at some of the most important cases in VARA’s history.  Mr. Weiner first spoke about his experience litigating the first case decided under VARA, Carter v. Helmsley-Spear,[8] as plaintiffs’ counsel.  Twenty-three years later, that seminal case served as a central precedent in the 5Pointz trial, as the Helmsley-Spear district court opinion established the test for determining whether a work has achieved “recognized stature” under VARA.  Under this two-tiered test, a plaintiff must first show that the artwork at issue has “stature,” meaning that it is “viewed as meritorious,” and, second, “that this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society.”[9]  Mr. Weiner then provided synopses of several of the most prominent post-Helmsley-Spear VARA cases, including Martin v. City of Indianapolis,[10] Phillips v. Pembroke Real Estate,[11] and Massachusetts Museum of Contemporary Art Foundation v. Büchel.[12]

In her presentation, Professor Adler discussed some of the policy considerations implicated by VARA, with a focus on the tension between American copyright law and Europe’s more author-centric civil law tradition of moral rights, “droit moral.”  While the rights granted by VARA are substantially more expansive than the rights otherwise granted under the U.S. Copyright Act, VARA rights are relatively limited when compared with droit moral—both as a matter of the plain language of the statute and, in particular, as a matter of the courts’ narrow interpretation and application of the law.  While acknowledging the almost universal agreement among scholars, practitioners and artists that American moral rights should be expanded—and while granting that, to some degree, she is coming at the issue as a devil’s advocate—Professor Adler advanced her own argument “against moral rights.”  From a policy perspective, she questioned whether it is right to assume that artists given this set of rights would in fact wield them in a manner consistent with the public interest.  For example, Professor Adler suggested that there may be circumstances under which artistic destruction is in the best interest of the public, or, conversely, where an artist’s impulse may be to destroy his work when the public interest is in that work’s preservation.

Irina Tarsis wrapped up the panel by discussing several ongoing litigations invoking VARA, with particular emphasis on the 5Pointz trial.  Ms. Tarsis shared her impressions of the trial after attending as an observer over the course of its first weeks; she noted that much of the testimony focused on the legitimacy of graffiti or “aerosol art” as an art form.  We now know that the 5Pointz jury ultimately agreed[13] with plaintiffs that the “aerosol art” works at issue achieved “recognized stature.

In the Q&A session following the panelists’ presentations, all three panelists indicated that they shared an interest in promoting the creation of more public art; however, there was no consensus on how effective they thought VARA would prove in furthering that goal. As we await a judicial ruling in the 5Pointz trial, the question lingers as to whether following the jury’s recommendation in favor of the aerosol-artist plaintiffs would embolden other artists to use their VARA rights to their advantage, or, ironically, if it will disadvantage artists by scaring developers away from commissioning or even allowing art on their property—a harm which VARA cannot remedy.

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[1] 17 U.S.C. § 106A.

[2] Cohen v. G&M Realty L.P., 1:13-cv-05612-FB-RLM (E.D.N.Y. filed October, 10, 2013). As discussed further in a separate piece on this blog, the 5Pointz jury subsequently returned an advisory verdict finding that the property-developer defendant violated the 21 “aerosol artist” plaintiffs’ VARA rights.  A written decision from Judge Block is expected.

[3] An earlier piece on this blog examines the distinction between a work of visual art and a work of applied art, to which VARA’s protections does not apply.

[4] 17 U.S.C. § 106A(a).

[5] Id.

[6] Id.

[7] Id.

[8] Carter v. Helmsley-Spear Inc., 861 F.Supp. 303, 325 (S.D.N.Y. 1994), rev’d on other grounds, 71 F.3d 77 (2d Cir. 1995).

[9] Id. at 325.

[10] Martin v. City of Indianapolis, 982 F. Supp 625 (S.D. Ind. 1997), aff’d, 192 F.3d 608 (7th Cir. 1999).

[11] Phillips v. Pembroke Real Estate Inc., 288 F. Supp 2d 89 (D. Mass. 2003), aff’d, 459 F.3d 128 (1st Cir. 2006).

[12] Mass. Museum of Contemporary Art Found. v. Büchel, 565 F. Supp. 2d 245 (D. Mass. 2008), aff’d in part, vacated in part, 593 F.3d 38 (1st Cir. 2010).

[13] Michael Salzman, co-chair of Hughes Hubbard & Reed’s art law practice, is quoted in this Wall Street Journal article regarding the 5Pointz developer’s missed opportunity of obtaining waivers from each of the artists in order to proactively protect himself from the artists asserting their VARA rights down the road.