The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

Don’t Deface My Painting! Artists’ Rights Under Illinois and Federal Law
By Charles G. Wentworth

In 1990, Congress passed the Visual Artists Rights Act (“VARA”),[1] creating a new cause of action and recognizing artists’ “moral rights.”  Although in existence for many years in Europe, the concept of moral rights had not yet taken more than a toe-hold in the United States.  Up to that point, it was only recognized in a few states, such as California.  VARA was unusual in that it modified existing law, giving artists the right to prohibit the modification or destruction of their artwork, even where they had sold the artwork itself and the copyrights associated with it.  One commenter called VARA “one of the most extraordinary realignments of private property rights ever adopted by Congress.”[2]  This article describes the passage of VARA, the rights it creates, and explores how that statute and others adopted by the Illinois General Assembly affect the rights of people creating, buying, and selling artwork, as well as those who have interests in real property that contains artwork, such as murals and sculptures.   

A Brief History of Moral Rights

In 1957, France passed the Code de la Propriete Intellectuelle, or the Intellectual Property Code (“Code”).  The Code recognized the importance of moral rights, or the “right of the artist to have his work attributed to him in the form in which he created it.”[3]  These rights were of “incorporeal property, exclusive and opposable against all.”[4] The Code protected artists in two basic areas: attribution and integrity.  Attribution gives an artist the “right to be recognized by name as the author of his work[,] to prevent his work from being attributed to someone else[, and] to prevent his name from being used on works which he did not in fact create.”  The right of integrity “grants the artist the power to protect her work from intentional mutilation.”  These rights were to exist forever; the Code made them “perpetual, inalienable, and imperscriptible.”  As a result, even an artist’s descendents could sue to protect a piece of artwork.[5]  The Code was later amended to make the rights available to artists, “independent of any property right in the physical object.” 

Moral rights were eventually adopted internationally by the Berne Convention (“Convention”).  Article 6bis of the Convention outlined artists’ rights:

Independently of the author’s economic rights, and even after . . . transfer of the said rights, the author shall have the right to claim authorship [attribution] and to object to any distortion, mutilation or other modification of or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation [integrity].[6]

However, while the Convention recognized certain moral rights, it did not independently create those rights in the nations joining the convention, leaving “[t]he means of redress for safeguarding the rights granted by this Article [to] the legislation of the country where the protection is claimed.”[7]  Nations would not be fully compliant with the terms of the Convention until they first passed legislation protecting the moral rights of artists in their countries. 

The United States joined the Berne Convention and adopted it in full in 1988.[8]  To implement its requirements that signatories adopt moral rights, in 1990 Congress passed VARA as an amendment to the Copyright Act.[9]  The new Section 106A gave an artist the right “to claim authorship in [works of visual art only] and . . . 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.”[10]  That Section also allowed artists “to prevent [through injunctions] any intentional distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation,”[11] as well as the right “to prevent the use of his or her name as the author of the work…in the event of [such modification].”[12]  Like France’s Code, VARA rights were “distinct from ownership of any copy of [the] work, or of a copyright or any exclusive right under a copyright in that work.”[13]  Artists could sell their artwork, the source of the VARA rights, while retaining those rights conferred by the statute. 

On its face, VARA only applied to “works of visual art.”  This included “a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast carved or fabricated sculptures of 200 or fewer.”[14]  It also protected “still photographic image[s] produced for exhibition purposes” that exist in a single copy or limited editions of 200.[15]  Excluded from protection were “any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture,” or journalistic publications, as well as advertising and packaging material, works for hire, and anything not otherwise covered by the Copyright Act.[16]

VARA also carved out special rights related to sculptures and murals—pieces of artwork literally and physically tied to a specific location:  “a work of visual art [that] has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work.”[17]  If such a piece of artwork exists, and if the artist has not waived the VARA rights, the property owner must first make a diligent attempt to contact the property owner before removing or modifying the artwork.[18]  To facilitate this, the Copyright Office is to maintain a system by which “any author of a work of visual art that has been incorporated in or made a part of a building, may record his or her identity and address” and update that information so that property owners know how to contact them.[19] 

While these rights are nearly identical to the moral rights found in the Code, there are some important differences between the two pieces of legislation.  First, VARA rights exist only during the life of the artist.[20]  Second, while not transferable or descendible, VARA rights are alienable: they may be waived at the time the artwork is sold.[21]  The final difference was that VARA rights only existed with respect to “work[s] of recognized stature.”[22] 

What is “Recognized Stature”?

Congress did not define this phrase, but earlier versions of the act had addressed how the artwork’s status would be recognized.  When first introduced in 1987, the statute stated:

In determining whether a work is of recognized stature, a court or other trier of fact may take into account the opinions of artists, art dealers, collectors of fine art, curators of art museums, restorers and conservators of fine art, and other persons involved with the creation, appreciation, history, or marketing of fine art.[23]

This earlier version of VARA allowed, but did not mandate that courts rely upon experts to determine whether a work met the “recognized stature” requirement.  This paragraph, however, was omitted from the final version of VARA passed by Congress in 1990. 

Despite the omission of this earlier definition, the Second Circuit established a rigid two‑part test to determine whether a work qualifies for VARA protection.[24]  In a case called Carter v. Helmsley-Spear, Inc. (“Carter II”), the court required a showing that the artwork actually has value and that members of the community recognize the artwork in question as such,[25] and has subsequently been adopted by other circuits and state courts.[26]  The Carter II court developed this rule based on two policies underlying VARA: “(1) the society’s interest in the preservation of works of artistic merit; and (2) the artist’s economic self-interest in preservation of his or her own works so as to enhance his or her reputation as an artist.”[27]

There is evidence that Congress did in fact intend that VARA protect “society’s interest in the preservation of works of artistic merit.”[28]  For example, during congressional debate over VARA the bill’s sponsor explained: “Artists in this country play a very important role in capturing the essence of culture and recording it for future generations. . . . I believe it is paramount to the integrity of our culture that we preserve the integrity of our artworks as expressions of the creativity of the artist.”[29]  The problem with the rule established by the Carter II court, however, is that Congress explicitly created the rights of attribution and integrity in the author, not in the society at large.  VARA rights may not be transferred to another, either by sale or inheritance, nor may they be exercised or waived by anyone but the artists themselves.  Under the statute, the community has no means of preserving art.  VARA simply gives the artists the ability to protect their good name: receiving credit where it is due, and not mistakenly (or intentionally) being labeled the authors of “bad” art that they did not produce. 

That this was the purpose of the statute was made clear by the court in Carter II: “[VARA] is meant to capture those rights of a spiritual, non-economic and personal nature.”[30]  The court did suggest that there may be some “public interest in preserving a nation’s culture.”[31]  The problem is that this comment was made in reference to how other countries and some individual American states—but not the federal government—have adopted moral rights legislation when interpreting and applying the right of integrity. For instance, California has adopted the California Art Preservation Act (“CAPA”)[32] and the Cultural and Artistic Creations Preservation Act (“CACPA”).[33]  CACPA, passed in 1982 to protect society’s interest in art preservation, created standing in “any established arts organization acting in the public interest to seek an injunction preventing damage to or restoring a work of fine art.  A work of fine art [was] defined as a work of ‘recognized quality, and of substantial public interest.’”[34]  Under that act, art may be protected by anyone who can show that the work is valuable to the community.  Assume an artist does not exert her VARA rights to protect her artwork, either because she has waived her rights or because she has died.  Under VARA, there is no further way to prevent the artwork from being mutilated or destroyed—only the artist herself may exercise the rights and petition the courts for an injunction or other remedy.  CACPA, by contrast, gives to the community at large standing to protect the artwork so long as it can show that it has value to the society. 

One problem with VARA’s “recognized stature” requirement is whether the artwork has to actually have been seen by the community in order for it to receive protection.  In Lubner v. City of Los Angeles,[35] a pair of artists had most of their artwork destroyed when a city truck rolled down a hill, demolishing their home.  The couple then sued the City of Los Angeles claiming that, because their artwork had been destroyed they were entitled to compensation based on their right of integrity. The City argued that the Lubners’ works could not have the requisite recognized stature because many of them had never been displayed outside the artists’ home.  The court, while purportedly adopting the Carter courts’ standard, instead ruled that their reputation in the community as artists would be enough to infer that their works met the “recognized stature” requirement: “Accepting the Lubners’ argument that they are recognized artists who have created and exhibited their paintings and drawings for over 40 years, we assume that their art included works of recognized stature under 17 U.S.C.A. section 106A.”[36] The Lubners received protection because they as artists were recognized in the community, not because their artwork was recognized.[37]  Any works they had or might produce would automatically meet the requirement, the court seems to say. 

Compare that with Pollara v. Seymour,[38] in which the court’s ruling on summary judgment (Pollara I) and the merits (Pollara II) reached very different conclusions. Pollara had a reputation in New York City as an artist, and had created a mural that was to be displayed at a political rally.  When the rally was cancelled, the mural was removed from where it hung and was badly torn in the process.  Pollara filed suit claiming the mural was protected by VARA and that she should receive compensation from the men who damaged it.  The defendants filed a motion for summary judgment claiming that there was no way Pollara could prevail at trial—the artwork could not be of recognized stature because the rally was cancelled and the mural was never viewed by the public.  Pollara responded by claiming that the art had never been seen, but had it been displayed, it would in fact have obtained the requisite stature.  She argued that “permitting someone to find and destroy an ‘unknown Matisse’ without recourse under VARA simply because it had not been previously displayed would be ‘an absurd standard, and would insulate those who destroy artwork prior to any public display from liability.’”[39]  The Pollara I court agreed, adopting the rule from Lubner “where, as here, the artist has demonstrated that she has an established reputation in the relevant community.”[40]

Unfortunately for Pollara, a different judge heard the trial on the merits.  Unlike Pollara I, this court refused to accept that, even if it had been shown to the public, the mural would have been recognized “in the relevant community.”[41]  The Pollara II court also suggested that, because the artwork would only appear once, it would not have sufficient recognition.  Rather, the mural was actually a “promotional item” specifically prohibited by VARA from receiving statutory protection.   

Understandably, the stature requirement has been widely criticized.  Some scholars suggest changes to VARA, one proposing that once courts give “broad recognition of an artist’s moral rights in his work. . . . No finding of the recognized stature would be required for protection against destruction of an artwork.”[42]  Proponents of this change would rewrite VARA, giving protection to all artists and not simply visual artists, thus bringing it more in harmony with the Convention, which extends protection even to written and performance artwork.  In another paper, I have argued that courts should adopt a standard from the Free Exercise Clause jurisprudence of the First Amendment to establish that the artist’s own recognition—rather than the community’s—of the artwork’s stature determines whether the piece is entitled to protection, looking then to the community only to determine damages and not protection in the first instance.[43]  To date, however, the Carter cases and their standards remain among the leading cases in this area.

Illinois State Protections for Artists

Unlike California, Illinois has no protection for moral rights.  The General Assembly has, however, adopted protections for artists in other ways.  For example, the Illinois Consignment of Art Act establishes rules governing the payment of commissions from art dealers to artists for works sold by the dealers that they have been holding and displaying on consignment.[44]  It appears that the legislature does not feel that artists are likely to be good business people, or that art dealers have a history of acting unscrupulously in dealing with artists, because the Act applies notwithstanding “[a]ny custom, practice, or usage of trade” to the contrary, and cannot be waived even through a written contract between the dealer and the artist.[45]  This puts an incredible burden on art dealers to make sure that they comply with the act because, as we will see, the penalties for failure to do so can be very steep indeed.

The Consignment Act applies wherever a person holds a “work of fine art” for another in order to sell it.[46]  Similar to VARA in its scope, those works encompass visual renditions including paintings, drawings, sculptures, mosaics, videotapes, photographs; calligraphy; graphic art such as etchings, lithographs, serigraphs, and offset print; sculptures or “craft work” in clay, textiles, fiber, wood, metal, plastic, or glass; and mixed media such as collages, assemblage, and works “consisting of any combination of the above.”[47]  Where art dealers hold these works, they do so as trustee for the artist; and after sale they hold the proceeds of that sale in trust.[48]  Additionally, the dealer is presumed to be an agent of the artist, creating fiduciary duties that place considerable liability on the art dealers to see that the artists are paid appropriately.[49]  Where such a relationship exists, the art dealer may only accept a commission on the sale where, “if prior to or within seven days of acceptance [or the artwork] the art dealer enters into a written contract with the artist which shall” describe the value of the artwork, the time within which the proceeds of a sale are to be returned to the artist, the commission the art dealer will receive, and any minimum price for which the dealer may sell the artwork and what discounts (if any) the dealer normally gives for the sale.[50]  Failure to enter into the contract entitles artists to receive an award of $50 fine, actual damages, and their attorney’s fees and costs for pursuing their rights under the act.[51]

So What?

VARA has some very important implications for a real-estate and local government practitioners, as well as attorneys focusing on intellectual property law.  For example, in the Carter cases, the sculpture at issue had been installed by the property owner’s tenant.  The owner then went into bankruptcy, and the party taking control of the building as a result was left to deal with the situation.  The new owner eventually prevailed by proving that the sculpture was actually a work-for-hire, and therefore not subject to VARA protection.  But that was after significant litigation at the trial court and an appeal to the Second Circuit Court of Appeals.  For those of you representing landlords or mortgagees, you may want to consider putting language into your leases and mortgage papers requiring that the tenant defend the landlord against claims by artists or requiring that mortgagors obtain waivers from artists who may have installed a sculpture or painted a mural at the mortgaged property.  For those representing buyers and title companies, you should consider adding VARA to any checklists you may have regarding due diligence to be completed before closing, and adding claims under VARA to any exclusions from title coverage.  It is fairly unlikely that such a claim will raise its ugly head, but if it does, you will be glad that you gave your clients the added protection.  Similarly, building budgets often require that some portion of the funds be used for artwork to be displayed in the new building—whether murals or sculptures.  The contracts related to those commissioned projects should either make clear that the work is being done for hire, or that the artist specifically waives any rights to the artwork; moral rights in addition to copyrights.

For those of you representing artists, you may want to consider whether there are other remedies available to your clients, or ways to protect them through existing laws such as the UCC.  For example, in the 1970’s the actors in Monty Python’s Flying Circus sued the television network ABC to try to recover for damages related to what they saw as a violation of their moral rights due to the way in which ABC had edited their television shows for time and content.  At the time, there was no claim in the United States for moral rights—VARA would not be passed for nearly 15 more years.  The court, however, concluded that some moral-rights-like protections were available through state unfair-competition laws and under the Lanham Act.  The court noted that artists who create work that is not covered by the Copyright Act (or today, that is not covered by VARA) may nonetheless be able “to prevent misrepresentations that may injure the plaintiff’s business or personal reputations, even where no trademark is concerned.”[52]  Copyrights may also be protected through license agreements and the ability (or inability) of buyers of artwork to create derivative works.

You may also be able to use the Uniform Commercial Code to create some rights not otherwise existent under the statutes or common law.  For example, California’s legislature allows artists whose works are sold in that state to receive a royalty on each sales.[53]  Although not applicable to sales outside of California, such royalty arrangements could be created using the UCC.  Article 9-102 of the UCC acknowledges “various categories of intellectual property” as “personal property” under the header of “general intangibles.”[54]  By recording a security agreement related to the artwork, an artist may be able to require that a portion of any subsequent sales be returned to the artist, even though there is no Illinois statute requiring royalty payments generally.

Finally, you should be sure to discuss all of these issues with your artist and art dealer clients.  Make sure that the contracts they are using comply with the Illinois Consignment of Art Act.  To the extent that they are not, you may have an obligation to advise your clients about claims they may have (or that may be raised against them) related to their business dealings. 

As you learn more about the rights that artists have in their work, you will be better able to represent your clients and help them protect their interests; not only in the artwork itself, but in how they run their businesses, and how they manage their property.  It can be surprising how expansive VARA’s application can reach, and it would be good for us all to become more familiar with it.

[1]       Pub.L. No. 101-650 (tit. VI), 104 Stat. 5089, 5128-33 (1990).

[2]       John Henry Merryman & Albert E. Elsen, Law, Ethics and the Visual Arts 283-84 (3d ed. 1998) quoted in Christopher J. Robinson, The “Recognized Stature” Standard in the Visual Artists Rights Act, 68 Fordham L. Rev. 1935, 1936 n.6 (2000).

[3]       Gilliam v. ABC, Inc., 538 F.2d 14, 24 (2d Cir. 1976).

[4]       Unless otherwise noted, the quotes in this paragraph come from the Code itself, although specific citations were unavailable. 

[5]       See, e.g., 136 Cong.Rec. H3111-02, H3115 (daily ed. June 5, 1990) (statement of Rep. Markey) (discussing French case where family of Pablo Picasso successfully recovered damages from individual who cut up one of Picasso’s paintings and sold each piece as if it were, in and of itself, a Picasso painting).

[6]       Paris Text of Berne Convention (July 24, 1971) entered into force on July 10, 1974, quoted in Jessica L. Darraby, 2 Art, Artifact & Architecture Law § 9:77 at 9-71 (West Group 2002) (1995) (alterations in original).

[7]       Id.

[8]       See Berne Convention Implementation Act of 1988, Pub.L. No. 100-568, 102 Stat. 2853 (1988).

[9]       17 USC § 101 et seq.

[10]     17 USC § 106A(a)(1)(A)–(B).

[11]     Id. at § 106A(a)(3).

[12]     Id. at § 106A(a)(2).

[13]     Id. at § 106A(e)(2).

[14]     17 USC § 101.

[15]     Id.

[16]     Id.

[17]     17 USC § 113(d)(1)(A).

[18]     17 USC § 113(d)(2).

[19]     17 USC § 113(d)(3).

[20]     Id. at § 106A(d).

[21]     Id. at § 106A(e)(1).  The waiver must be specific and in writing, signed by the author of the work.  Id.

[22]     Id. at § 106A(a)(3)(B).

[23]     S. 1619, 100th Cong. §  101, 133 Cong. Rec. 22,951  (1987).

[24]     This two part test was established by the district court in Carter I and then adopted on appeal by the Second Circuit in Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995) (“Carter II”).

[25]     See Carter v. Helmsley-Spear, 861 F.Supp. 303, 325 (1994) (“Carter I”).

[26]     See Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999); Pollara v. Seymour, 206 F.Supp.2d 333, (N.D.N.Y. 2002).  Lubner v. City of Los Angeles, 45 Cal.App.4th 525, (Cal. App. 2 Dist., 1996) also purports to adopt the standard from Carter I, but does not in fact do so. 

[27]     Pollara v. Seymour, 150 F.Supp.2d 393, 397 (N.D.N.Y. 2001).  For an excellent discussion of VARA’s establishment and the policies behind it, see Robinson, supra note 2, passim.

[28]     Id.

[29]     135 Cong. Rec. E2227 (daily ed. June 20, 1090) (statement of Rep. Markey), quoted in Visual Artists Rights Act of 1990, H.R. 514, 101st Cong. 2d Sess. 1, 6 (1990).

[30]     Carter II, 71 F.3d at 81.

[31]     Id. at 81–82.

[32]     Cal. Civ. Code § 987(a) (West 1982 & Supp. 2000).

[33]     Cal. Civ. Code § 989 (West Supp. 2000). The information about these two statutes in this paragraph can be found in Robinson, supra note 2, at 1942–44.

[34]     Id. at 1944.

[35]     45 Cal.App.4th 525 (Cal. App. 2d Dist. 1996).  Facts and procedural history described in this paragraph are found in this decision.

[36]     Id. at 531.

[37]     The couple lost on the grounds that the destruction was neither intentional nor grossly negligent as required by the statute.  Id.

[38]     Pollara v. Seymour 150 F.Supp.2d 393 (N.D.N.Y. 2001) (“Pollara I”); 206 F.Supp.2d 333 (N.D.N.Y. 2002) (“Pollara II”). Facts and procedural history for Pollara I and Pollara II are found in these two opinions.

[39]     Pollara I, 150 F.Supp.2d at 397 n.8 (quoting Plaintiff’s complaint).

[40]     Id.

[41]     Pollara II, 206 F.Supp.2d at 337 (emphasis added).

[42]     Robinson, supra note 3, at 1971.

[43]     An Artist’s Individual Rights, Charles G. Wentworth, © 2009, unpublished article.

[44]     815 ILCS 320/5.

[45]     815 ILCS 320/2.

[46]     815 ILCS 320/1(3).  

[47]     815 ILCS 320/1(7). 

[48]     815 ILCS 320/2(3).

[49]     815 ILCS 320/2(4).

[50]     815 ILCS 320/5(1).

[51]     815 ILCS 320/7.

[52]     Gilliam, 538 F.2d at 24.

[53]     CA Civil Code § 986 (West Supp. 2000).

[54]     Comment 5(d) to 810 ILCS 5/9-102.

Charles Wentworth is a sole practitioner in Glen Ellyn where he practices commercial, real-property, and appellate litigation. After graduating from the S.J. Quinney College of Law at the University of Utah, he clerked for Chief Justice John Broderick of the New Hampshire Supreme Court. He was then a litigation associate at Kirkland & Ellis LLP in Chicago before opening his own office.

 
 
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