The Art of Real Estate: Understanding the Visual Artists Rights Act

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Given the sheer volume of law created in this country since its inception, one would expect that the relative rights between artists and purchasers of art would be well established, and generally understood. But try answering the following question with any sense of confidence: If money were no object, and you were to buy a painting, perhaps a Rembrandt, do you have the legal right to bring it home and draw a mustache across the face, or even burn it, if that is what you were so moved to do? Does it make a difference if the work was created by a living painter? Does an artist retain any rights in his or her work? What about artwork purchased for, or created for, a building you or your company owns? Does your ownership of the art permit you to destroy it, or even to alter it? Does it matter if the work is moveable, such as a sculpture, or if it has become a part of the real estate, such as a mural?

The Visual Artists Rights Act of 1990 ("VARA") is an attempt by Congress to answer some, but not nearly all, of these kinds of questions. VARA grants artists substantial rights to protect their works of visual art, and to some extent, their honor and reputation as reflected through that art. These rights sometimes exist in stark contrast to traditional notions of property ownership as understood by most real estate owners, purchasers, and lenders, and can lead to significant costs and inconvenience.

Traditional American notions of property ownership and copyright protection generally allow for unrestricted transfer of art as between artist and purchaser. The rights afforded artists under VARA, by contrast, have their roots in European intellectual property law and recognize distinct "moral rights" of artists with respect to works of visual art, rights that cannot be bought and sold.

In theory, Congress, in enacting VARA, sought to balance society's interest in promoting a flourishing artistic community with this country's long-held and deep-seated belief in property rights and free transferability of property. The cynics among us would hasten to point out that, in reality, the enactment of VARA probably had more to do with the fact that it was appended to a very popular piece of legislation than with any conscious, much less noble, design by Congress to promote society's interest in the welfare of artists.

THE ORIGINS OF THE VISUAL ARTISTS RIGHTS ACT

In Carter v. Helmsley-Spear, Inc., the leading case considering VARA, Circuit Judge Cardamone explains the societal policy behind VARA this way:

One of America's most insightful thinkers observed that a country is not truly civilized "where the arts, such as they have, are all imported, having no indigenous life." 7 Works of Ralph Waldo Emmerson, Society and Solitude, Chapt. II Civilization 34 (AMS ed. 1968). From such reflection it follows that American artists are to be encouraged by laws that protect their works.

Encouraging artists by creating laws that protect their works may in fact be a laudable goal, but because few real estate owners, purchasers, and lenders (those most likely to bear the economic burden of VARA) are aware of VARA, the statute as a practical matter can be a trapdoor for the unwary.

DEFINING A WORK OF VISUAL ART

VARA's protections are afforded only to a "work of visual art" which is defined by federal statute, at 101 of Title 17 of the United States Code. In brief, a "work of visual art" must be a painting, drawing, print, sculpture, or still photographic image produced for exhibition purposes only. But to understand the definition, one really needs to know the various exceptions and limitations that limit the application of VARA. Some of the more important exceptions and limitations are as follows:

* VARA only applies to a work of visual art created on or after June 1, 1990.

* A work of visual art does not include "work for hire" (works created by an artist who is an employee acting within the scope of his or her employment). …