DESTRUCTION OF ARTWORK

IVAN HOFFMAN, B.A., J.D.


        Art that has been created for or is otherwise included as part of a building, such as the huge murals we all see painted on the side of these buildings, is protected from destruction under certain circumstances.  As a part of the Visual Artists Rights Act (VARA) (read the article by that title), which is part of the United States Copyright Act, there is federal legal protection for this kind of art.

The Statute

        Section 113 (d) provides in part:

(d)(1) In a case in which-

(A) a work of visual art 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 as described in section 106A(a)(3), and

(B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.

        What the above sections mean is this:  The rights of copyright in any sort of visual or graphic art that fall within the scope of VARA include the rights set forth in section 106 (a), (2) and (3).  These rights are:
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113(d), shall have the right-

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

        However, to the extent that the art has been incorporated into a building, then the above rights are not available to the artist if the artist has consented to the installation of that art prior to the effective date of VARA or the artist and the building’s owner have executed a written agreement on or after that effective date in which the artist “specifies” that such art may be destroyed etc.  Presumably the word “specifies” means that such language granting a building’s owner would be expressly set forth in that agreement.

        The statute goes on to state:

(2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author’s rights under paragraphs (2) and (3) of section 106A(a) shall apply unless-

(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affecting the work of visual art, or

(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.

For purposes of subparagraph (A), an owner shall be presumed to have made a diligent, good faith attempt to send notice if the owner sent such notice by registered mail to the author at the most recent address of the author that was recorded with the Register of Copyrights pursuant to paragraph (3). If the work is removed at the expense of the author, title to that copy of the work shall be deemed to be in the author.

        What the above sections mean is this:  As to artwork as to which the above waiver portion of the statute does not apply, if the owner of a building wishes to remove such artwork and provided that such removal can be done without the destruction of the artwork as described in section 106(A)(3), the artist still retains his or her rights under both sections (2) and (3) of 106(A) unless the owner of the building tried to give notice but could not find the artist or provided the indicated notice to the artist and the artist did not timely reply.

        If the artist consents to the removal at his or her expense, then the ownership of that particular copy of the work belongs to the artist or, in appropriate circumstances, to the estate of the artist subject to the other rights of the estate of a deceased artist.

        Further:

(3) The Register of Copyrights shall establish a system of records whereby any author of a work of visual art that has been incorporated in or made part of a building, may record his or her identity and address with the Copyright Office. The Register shall also establish procedures under which any such author may update the information so recorded, and procedures under which owners of buildings may record with the Copyright Office evidence of their efforts to comply with this subsection.
        The Copyright Office does not provide a specific form for such registration but provides what are the essential terms to be included in such form and a procedure for recording the same at the Copyright Office.  It is the responsibility of the artist (or the artist’s agent) to prepare and file such forms.

        California has a similar statute (Civil Code Section 987) and there may be such statutes in other states as well.  To the extent that they cover the same legal ground as the federal statute, however, the state laws may be preempted by the federal law.

Conclusion

        As with other aspects of VARA (read also “The California Resale Royalties Act” ), while there are the statutory legal protections for artists, the same law also imposes obligations on the part of the artist to attend to his or her business.

        For those artists who do comply and are diligent in protecting their rights, the rewards can be significant.

© 2002 Ivan Hoffman.  All Rights Reserved.

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This article is not intended as legal advice.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship.

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.

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