VARA
Street art from Miami's Wynwood Arts District
Attribution & Integrity

Can the Visual Artist Rights Act (VARA) Protect Artwork from Being Intentionally Destroyed?

When a buyer or collector purchases an original work of art, they would likely assume that, as the new owner, they have the right to do anything they want with it. They can destroy it, throw it in the garbage, rip it apart and use the pieces to create a unique mixed media or appropriation piece, or burn it as a piece of performance art. What about a building covered in street art? Can the building owner demolish it to build a new structure? Under the Visual Artist’s Rights Act (VARA), artists have protections that limit the ability for owners of a physical artwork to alter or destroy it under certain conditions. Let’s take a look at those conditions.

The Visual Artist’s Rights Act (VARA)

Take these scenarios from an article by Cynthia Esworthy’s, A Guide to the Visual Arts Rights Act:

  • You are a sculptor. On commission, you create a bronze frieze for a city park. A year later, you discover that the center of the frieze has been covered by a copy of the city seal. Can you force the city to remove the seal?
  • You are a well-known painter. You discover that a company that has purchased one of your works is advertising one-inch square portions of it so that buyers can “own an original painting” by you. Can you stop them?
  • You are an airport. You commission a giant mobile, specifically designed for the interior of your central terminal. You would like to relocate the mobile to the exterior front entrance of the terminal, which will require weatherproofing, removal of the motor and rendering the mobile stationery, and repainting it to match the color scheme. Can the artist prevent the move or modifications?
  • You are a photographer. You discover that a limited-edition triptych you created and sold has been separated into three pieces for resale. Can you require that the art is sold as a whole?
  • You are a county arts agency. You commission a mural to be placed on a county building. You later discover that state law requires you to build a handicapped access ramp blocking the lower part of the mural. Can you paint over the lower part of the mural?

In 1990, Congress tried to answer these questions with the implementation of Visual Arts Rights Act (VARA). It was the first attempt to grant protection to an artist’s physical work (also known as moral rights). Many countries had already granted these rights, enshrined in the Berne Convention for the Protection of Literary and Artistic Works, the International copyright treaty.

The philosophical underpinning of moral rights is that artists put their spirit and personality into their work and therefore, the works should be protected from change or destruction. As a signatory, the U.S. had to comply with those rules but needed its own legislation to make it law. So, it passed VARA, which among other things, allowed artists to prevent their work from being altered, distorted, or mutilated.

However, these rights are limited to only fine art, specifically, paintings, sculptures, drawings, prints, or still photographs that are produced for exhibition and are only single copies or limited editions of less than 200. Additionally, the work must be considered “a work of recognized stature.”

Since VARA’s inception, the courts have further interpreted VARA’s non-destruction clause to include additional limitations:

  • VARA will protect against destruction of “a work of recognized stature,” but an artist must show that the art community or society, in general, view the work as possessing such stature but it does not have to rise to the level of a Picasso.
  • The concept of intentional distortion, mutilation or modification of artistic work has been given more flexibility, where an artist’s honor and reputation are additional factors that need to be considered.

While VARA may sound great for artists as a means of ensuring that buyers cannot destroy or mutilate their work after purchase, in practice VARA has been mixed somewhat mixed as far as its real-world application.

Two important VARA Cases with Opposite Outcomes

Chapman Kelley

The first major VARA case came in 1984. Chapman Kelley, a recognized landscape painter, created what he called “living art,” in a Chicago Park. Kelley was a painter by trade. Wildflower Works was designed to be a living version of a Kelley painting, consisting of two ellipticals, each the size of a football field. The work is framed by gravel paths and 60 varieties of native white flowers at the outer edges and more intensely colored flowers toward the center. The plan as for the display to flower “sequentially” from spring to fall and designed to thrive without watering, fertilizer, or insecticides.

Can the Visual Artist Rights Act (VARA) Protect Artwork from Being Intentionally Destroyed?
Chapman Kelley’s Wildflower Works

With the permission of the Chicago Park District, Kelley personally financed the project and maintained it with the help of volunteers.

On the 20th anniversary of the installation, the Park District announced that it wanted to build a new structure at the location and asked Kelley to reconfigure the flowerbeds. Kelley refused to approve the change but the Park District did it anyway. More than half of the 68,000-square-foot garden was removed and the shape of what remained was radically changed. The twin ovals were cut down to rectangles, fenced in by incongruous hedges, and surrounded by high-maintenance lawn and masses of rose bushes.

Kelley sued to have the site returned to its original state as part of his moral right to not have his worked altered. Surprisingly, the Court concluded that Mr. Kelley’s work was not a work of art, stating:

“Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable . . . The result is that a work of art made from living material is automatically disqualified because the use of living materials comes from nature and because it has the potential for change.”

This was a major setback for VARA and resulted in a few major cases being brought to the court. Given the result, many plaintiffs were wary of spending the money on a case that didn’t have a high level of confidence in winning

5Pointz

More recently, street artists tried to use VARA to protect art created at 5Pointz in Long Island City, New York. In the early 1970s, Gerald Wolkoff acquired warehouse buildings in Long Island City for speculative real estate investment and development purposes but did nothing with them for several decades. The buildings became covered with an assortment of graffiti.

5 Pointz Demolition

In the 1990s, Wolkoff began renting some of the warehouse spaces to street artists. Over time, the warehouses became and acclaimed location for street art. Wolkoff sanctioned its use and even agreed to a community sponsored system for who could exhibit their work. The warehouses eventually gaining the name “5Pointz.”

Then, in 2011, Wolkoff decided it was time to knock down the old warehouses and develop high-rise residential towers on the spot. The street artist community protested the action but in 2013, Wolkoff whitewashed the building complex without warning, destroying all the artist’s work. A year and a half later, the building was demolished.

The artists whose work adorned the walls sued under VARA for reparations for the artwork’s destruction. Among the various defenses, Wolkoff argued that graffiti could not rise to the “recognized stature” required for protection by VARA. In 2018, a jury disagreed awarding the artists $6.7 million. It was the first-time graffiti, or “aerosol art” had been given that protection under federal law, which may have far-reaching implications for other graffiti murals across the country.

Unfortunately, Wolkoff has appealed the verdict so until the appeal is decided, we cannot be sure that street artists will receive the protection of VARA. One caveat: Wolkoff gave his approval for the 5Pointz works so assuming that the appeal is rejected and the artists are awarded their reparations, this ruling may not apply to graffiti that is not condoned by a building’s owner. Unapproved graffiti art is considered trespassing and since the artwork is created as the result of an illegal act, may not be given the same deference as the artwork at 5Pointz. However, the many street arts zoned areas around the country, such as Miami’s Wynwood Walls or the Arts District in Los Angeles could benefit from VARA protections.

_____________

Now that you know the basic tenets of protecting artwork and a couple of high-profile cases around it, take a look again at the scenarios listed in the beginning of this article. What do you think the results of those scenarios would be? What do you think about the Kelley and 5Pointz decisions? Let us know in the comments below. And please share this article if you found it interesting and useful.

About the author

Steve Schlackman

As a photographer and Patent Attorney with a background in marketing, Steve has a unique perspective on art and law. Should you have any questions on Intellectual Property contact him at [email protected] His photography can be seen online at Fotofilosophy.com or on display at the Emmanuel Fremin Gallery in New York City.