Don't Touch My Mural: Artists' Rights under the Visual Artists Rights Act

I recently presented a workshop for artists on the Visual Artists Rights Act (VARA), which led to me thinking about a closer look at VARA than discussed in a previous blog post. Many creators of visual works do not even know that they may have special rights protecting their artwork that are not available to other artists. Here are the top things visual artists should know about the Visual Artists Rights Act:

What is the Visual Artists Rights Act (VARA)?

The Visual Artists Rights Act, 17 U.S.C. §106A, is a 1990 federal law that amended the Copyright Act. VARA is based upon the historical concept of moral rights, which have been recognized in Europe for centuries. Moral rights, sometimes called droit moral, come from the belief that an artist’s individual personality is inseparably connected to their artwork. Whereas copyright is connected to (and exists upon) creation of a work, moral rights are personal to an artist themselves.

Until Congress passed VARA, the United States did not recognize moral rights. Copyright offered some protections to visual artists, but with VARA the U.S. recognized the “right of attribution” and the “right of integrity.”

VARA’s “right of attribution” gives artists the right to (1) claim authorship of a work, (2) prevent the use of their name as the author of a visual artwork they did not create, and (3) prevent the use of their name with any visual artwork if the artwork is distorted, mutilated or modified.

The “right of integrity” gives visual artists the right to (1) prevent the intentional distortion, mutilation or modification of their artwork that would be prejudicial to their honor or reputation, and (2) the right to prevent destruction of a visual artwork of recognized stature. 17 U.S.C §106A.

Artists who successfully make a claim under VARA may be awarded actual or statutory damages, attorneys’ fees, and legal costs. Statutory damages may be between $750 and $30,000 for each work, and up to $150,000 for willful violations. 17 U.S.C. §504.

The Constraints of VARA

VARA is subject to certain limitations regarding its applicability.

I. Works of Visual Art

VARA only applies to works of visual art. “Works of visual art” are defined under 17 U.S.C. §101. These include original paintings, drawings, prints, or sculptures that exist in a single copy or limited editions of less than 200 and signed or numbered by the author. It also includes still photographs that are created for exhibition and exist in a single copy or editions of less than 200 copies and signed or numbered by the author.

Certain kinds of visual work are specifically excluded the definition, too, including any “(i) poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication; (ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container; [or] (iii) any portion or part of any item described in (i) or (ii).” 17 U.S.C.  §101.

II. Works for Hire

“Works for hire” are also excluded. “Works for hire” include works created during the course of employment.

It also includes works specifically ordered or commissioned where the parties agree in writing that it was a work for hire. However, the work must also fall within one of nine enumerated categories. These are works that are created (1) as a contribution to a collective work, (2) as a part of a motion picture or other audiovisual work, (3) as a translation, (4) as a supplementary work, (5) as a compilation, (6) as an instructional text, (7) as a test, (8) as answer material for a test, or (9) as an atlas.

A work created under commission that does not fall within one or more of these categories would not be a “work for hire.”

III. Artworks Attached to or Made Part of a Building

Artists who create artworks attached to or made part of a building should be aware of other limitations. VARA protection does not apply in the case of destruction, distortion, mutilation, or modification of the artwork if:

A. The author consented to the installation of the work prior to December 1990, or

B. The author agreed in writing to the destruction, distortion, mutilation, or modification of the artwork if removed from the building.

VARA also does not apply in case of removal without destruction distortion, mutilation, or modification of the artwork if:

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, or

B. The owner provided written notice, and the author failed either to remove the work or to pay for its removal within 90 days.

17 U.S.C §113(d).

IV. Site-Specific Artwork

Some federal courts have determined that VARA does not apply to visual art that is “site-specific,” even though there is no specific provision in the statute that excludes “site-specific” works. In Phillips v. Pembroke Real Estate [1], the court determined that artist David Phillips had no protection under VARA to prevent the removal and relocation of sculptures he created for a park when the location itself was an integral element of the artwork. Other courts have declined to apply a “site-specific” exemption in its decisions. [2]

VARA vs. Copyright Law

While artists’ rights under copyright law and VARA may complement each other, there are some key differences.

1. VARA rights exist only for the duration of the life of the artist. By contrast, for works created after January 1, 1978, copyright generally exists for the life of the artist, plus 70 years.

2. A work must be protectable under copyright law to be protectable under VARA. For example, a work that is not original or have elements of creativity would not be protected under copyright law, and, therefore, also not protected under VARA.

3. Copyright in a work may be transferred or assigned to another. However, transfer of copyright does not terminate VARA rights. Only a waiver may void VARA rights, and such a waiver must be express, in writing, identify the work, and identify the uses of the work to which the waiver applies. Therefore, visual artists who don’t have copyright in their artwork may still have rights under VARA.

4. Copyright registration of a work with the U.S. Copyright Office is required to assert a claim of copyright infringement. However, an artist does not need to register a work to make a claim under VARA.

Does VARA Still Have Value?

Despite it being law for over 35 years, VARA is still used less frequently than other legal protections for artists, such as assertion of copyright infringement. Critics argue that VARA has too many exemptions, or is even outdated, pointing to the evolving nature of visual art, including the growth of digital art.

Yet, VARA has been successfully invoked in recent years to protect street art. In Castillo v. G.M. Realty [3], a judge upheld a $6.5 million award to a group of 21 artists whose 45 aerosol artworks—displayed in a derelict building in Queens, New York—were destroyed by the property owner. The case highlights VARA’s continuing value as a powerful legal tool for protecting artists’ rights.

Key Takeaways for Artists

1. Artists should evaluate whether their work is protected under VARA. If VARA applies, it is wise to include clauses in commission, exhibition, and other agreements that affirm and protect those rights. Even better, an artist might consider working with an attorney to develop a customized art services or commission agreement that reflects their priorities.

2. For artists creating murals or works that may be deemed “site specific,” or integral to the location, it is important to address issues such as removal or modification of the work. Clear contractual language can help ensure that the artist receives advance notice and has a say in how the artwork is handled.

3. Artists should also think carefully before agreeing to waive their VARA rights. What are they receiving in return? Is the waiver worth the potential loss of control over the integrity of the work or the artist’s attribution?

Moral rights recognize that art is an expression of an artist’s identity. Asserting and enforcing these rights through VARA honors the integrity of the artistic process and the artist’s voice and vision.

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1 Phillips v. Pembroke Realty, Inc., 459 F.3d 128 (1st Cir. 2006).

2 In Lew v. City of Los Angeles, 2:2020cv10948, the district court for the Central District of California declined to address the City’s argument that artist David Lew’s artwork installation at the Chinese American Museum was site-specific.

3 Castillo v. G&M Realty, L.P., 950 F.3d 155 (2d Cir. 2020).