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An Introduction to the Visual Artist Rights Act (“VARA”)

Visual artists pour their heart and soul into their creations, and it’s only fair that they’re afforded legal protections for their works. This is where the Visual Artists Rights Act (“VARA”) comes into play. If you’re an artist looking to safeguard your artistic legacy, this guide is for you. In this blog post, we’ll break down VARA, demystify its complexities, and show you how to use it to your advantage while optimizing for search engines along the way.

 

Understanding VARA: What Is It?

VARA, the Visual Artists Rights Act, is a federal law in the United States designed to protect the rights of visual artists, which is codified at 17 USC § 106A. It grants qualified artists two fundamental rights: the right of attribution and the right of integrity. It should be noted that this is different than copyright. These rights are separate than copyright and do not transfer when the ownership of a copyright is transferred.

 

Works Covered by VARA: What’s Eligible?

VARA applies to a specific category known as “works of visual art,” including paintings, sculptures, prints, and certain photographs (“works”) created for public display in galleries, museums, or similar venues. For works that are produced in multiples, the works must be in editions less than 200 with sequential numbering and signatures by the artist. If a work was created as a work for hire, it is ineligible for VARA protections.

 

Right of Attribution: Claiming Your Artistic Identity

This right allows an artist to claim authorship of their work, prevent others from putting an artist’s name on work they did not create, and the right to have your name not attached to a work. Usually, the removal of attribution is invoked when work is damaged to avoid harming the artist’s reputation. This right is essential in preserving artistic identity and reputation.

 

Right of Integrity: Preserving Your Artistic Vision

VARA also empowers the artist to prevent intentional distortion, mutilation, or modification of a work if it harms an artist’s reputation. Ensuring that the artistic vision remains intact, and an artist’s creations aren’t altered without your consent.  If the work is designated as having “recognized stature,” then there may be a right to prevent the intentional or grossly negligent destruction of a work. A work can obtain recognized stature “when it is one of high quality, status, or caliber that has been acknowledged as such by a relevant community.” Castillo v. G&M Realty L.P., 950 F.3d 155, 166 (2d Cir. 2020). It should be noted that recognized stature is a fluid concept that may depend on the artistic quality and the relevant community. Id.

 

How Long Does VARA Protection Last?

Typically, VARA rights persist throughout your lifetime. After your passing, these rights usually terminate on your passing.  The determining factor is whether the work was created before June 1, 1990.  If the title to the work was not from the author passed by June 1, 1990, then the protections of VARA last 50 years. 17 USC § 106A(d)(2). If the work was created prior to VARA and the ownership had been passed, then VARA protections do not apply.  Pavia v. 1120 Ave. of the Americas Associates, 901 F. Supp. 620, 628 (S.D.N.Y. 1995).

 

Exceptions and Limitations:

While VARA offers robust protection for a very select type of work, there are exceptions. For example, natural passage of time, modifications for the conservation of the work, or when the work is incorporated into buildings. That said, there are special rules surrounding when a work is incorporated in a building. VARA will apply to a work that was integrated into a building so that the work cannot be removed from the building without damaging the work and the artist consented to the installation of the work prior to June 1, 1990.  Or it will apply if, after June 1, 1990, the artist signed a contract that contained a provision indication that the removal of the work may damage the work, then VARA does not apply.

 

Waiving VARA Rights: Proceed with Caution

It’s possible to waive your VARA rights, but it must done voluntarily, with full knowledge, and recorded in writing. Usually, the waiver of VARA rights is incorporated into the contract for work, but not always.

 

Enforcing VARA Rights: Your Legal Recourse

If an artist believes their VARA rights have been violated, you should contact an attorney.  There are specific remedies which may make bring a VARA claim easier, such as the inclusion of attorney fees for works that have copyright registration with the US Copyright Office.  VARA also allows for injunctions, or legal orders that prevent or require specific action.  An injunction can be used to prevent the destruction of a work. All of these remedies are on top of any damages you may incur because of the violation of VARA.

The protections from VARA appear to be fairly narrow, however, in practice it is much broader. In 2013 a real estate developer whitewashed dozens of murals at a complex in Brooklyn, New York. Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020). These murals were part of the world’s largest open-air aerosol museum and represented work done by 21 graffiti artists. Id.  The artists brought a claim against the real estate developer based on his failure to adhere to VARA requirements. In 2018, the 21 artist were awarded $6.7 million in damages for the violation of their rights.

 

Protecting Your Creative Vision

In the ever-evolving world of art, VARA stands as a shield against the misuse and alteration of your creations. By understanding VARA and taking the necessary steps to protect your rights, you’re not just preserving your art but also securing your creative legacy.

VARA empowers artists to maintain control over their work, ensuring that it remains a true reflection of their artistic vision. To delve deeper into this topic and explore how VARA can safeguard your artistry, consult with a knowledgeable attorney who specializes in intellectual property law, such as me, Adan, at adan@apexlg.com. I do have to note that this blog is for general information purposes only and should not be relied upon as specific legal advice. This article, or contacting Apex, does not in any way form an attorney-client relationship. You might also like to read, Making your intangibles, tangible. Part 1: Copyrights or Who Owns the Copyright to AI-Generated Content?

With VARA as your ally, you can navigate the art world with confidence, knowing that your creations will stand the test of time.

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