Quilt Artists: Left out in the Cold by the Visual Artists Rights Act of 1990
Moran, Michelle, Marquette Intellectual Property Law Review
ABSTRACT INTRODUCTION I. COPYRIGHT PROTECTION FOR QUILTS AS "USEFUL ARTICLES" A. Copyrightable Subject Matter and Useful Articles B. Copyright Protection for Quilts II. VISUAL ARTISTS RIGHTS ACT OF 1990 A. Policy and Goals of VARA B. Visual Works of Art Included and Excluded from VARA III. QUILT ARTISTS' RIGHTS A. Elevating Quilt Artists' Rights to Include Rights of Attribution and Integrity 1. Determining Congressional Intent for VARA 2. Protection Under State Artists' Moral Rights Statutes B. Maintaining the Status Quo for Copyright Protection of Quilt Designs CONCLUSION
Imagine walking into a museum and observing a display of five original pieces of artwork created in the United States. The display includes a sculpture, a painting, a quilt, a photograph, and a print--all original, all protected by copyright. (1) The Copyright Act gives all the artists an equal "bundle of rights," with one exception: four out of the five artists have their "moral rights" of attribution and integrity protected, but the quilt artist is not entitled to these rights because applied art is excluded from the Visual Artists Rights Act of 1990 ("VARA"). (2)
A quilt is art because it is beautiful, and a quilt is a useful article because it provides warmth and comfort. The quilt's dual purpose creates an inequity for the quilt artist. The useful articles or applied art (3) status of the quilt eliminates for the quilt's creator the right to claim protections that are readily available to artists who work in other media, such as paint, canvas, paper, stone or metal. These artists are able to protect their rights of attribution and integrity because their works function only as art. Alice Walker's Everyday Use expresses the duality of the quilt with poignancy when the mother asks her greedy daughter, who covets the family's antique quilts: "Well," I said, stumped. "What would you do with them?" "Hang them," she said. The mother is left thinking: As if that was the only thing you could do with quilts. (4) Ironically, if that were the only thing that could be done with a quilt, then the artist would be afforded the same rights of attribution and integrity as other visual artists. The reality of a quilt, however, is that it is more than art. It seems a harsh penalty that because a quilt can be useful, the quilt artist is offered fewer rights, especially when the underlying policy expressed by Congress under VARA seems to speak directly to the artist who created and labored to produce an original quilt. (5)
To understand how copyright law fails to protect useful articles and quilts, Part I provides a basic backdrop of copyright law as it applies to useful articles and specifically how quilt designs have been protected by copyright. Part II discusses the Visual Artists Rights Act of 1990 (VARA), which protects the moral rights of attribution and integrity for visual artists. This Part reviews congressional attempts to narrowly limit who is protected under VARA--a departure from the broad coverage under other regimes that protect moral rights. Part Ill addresses how the courts interpreted VARA and applied art within VARA's context. This Part also examines how the courts determine what artworks Congress intended to protect with VARA, with a particular focus on how this issue is treated in the legislative history. Part Ill then discusses how the legislative history supports protecting quilt artists' rights of attribution and integrity because a quilt artist fits the profile of the artist Congress intended to protect with this act.
I. COPYRIGHT PROTECTION FOR QUILTS AS "USEFUL ARTICLES"
A requirement of VARA is that the visual art must be subject to copyright protection and accordingly must be copyrightable subject matter. (6) Copyrightable subject matter is limited to the design elements of the quilt. Therefore, its status as a useful article eliminates the quilt from qualifying for protection under VARA. …