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Artists Battle for Moral Rights
by Barbara Hoffman
Flack, Queen Catherine. Full-size clay version.
Can a sculptor of
a permanent installation of 40 metal Canadian geese on display at a shopping
center prevent the mall operator from adding red ribbons to decorate the
sculpture at Christmas? Does an artist have the right to prevent an individual
property owner who commissioned and installed one of her sculptures from
destroying it in anticipation of selling the property? Can a nonprofit
organization, after commissioning a sculptor to create a statue, hire
the sculptors assistant to complete the artwork over the sculptors
Each of these questions raises the issue of the moral right
of an artist to control the integrity of his or her work after it has
been sold or before it has been completed. In the first, based on a well-known
Canadian case, the court approved the sculptors request to stop
the display on the grounds that such modification of the work would harm
the professional and artistic reputation of the artist in violation of
his right to the preservation of the integrity of his work. Canada has
endorsed moral rights since 1931. The last scenario is based on the case
of the distinguished sculptor Audrey Flack.
In 1989, for the purpose of memorializing the life of Catherine of Braganza,
Princess of Portugal and Queen of England in the mid-17th century and
the namesake of the borough of Queens, the Friends of Queen Catherine
(FQC) undertook to create a monument to be installed on donated public
property facing Manhattan. Flack was selected on the basis of a 22-foot
sculpture she created and was commissioned to further design and supervise
the fabrication and installation of a 35-foot bronze sculpture at the
site. FQC entered into a contract with the Tallix foundry to fabricate
the project based on Flacks designs and with her supervision. In
1997, after Flack had completed preparatory work on the project and had
begun on a full-size statue, the project lost its site in Queens because
of public controversy based on unfounded rumors that Catherine was involved
in the slave trade. Flack, nevertheless, completed a full-size clay statue,
which was presented to visitors and the press at Tallix.
original rendering of the figures face.
By 1998, given the
controversy, Tallix sought assurances of FQCs ability to fund the
project, which were not forthcoming. The foundry terminated the contract.
Tallix and FQC finally settled their differences, permitting work on the
bronze statue to begin one year later. However, Flack discovered that,
in the interim, the head of the figure had been placed outside in Tallixs
garbage dump. In addition, the waxes and molds drawn from the 35-foot
clay sculpture had been damaged; thus, it was necessary to reconstruct
the clay face to develop new molds. Flack offered to re-sculpt the face
for an additional fee. Tallix, at the suggestion of FQC, hired one of
Flacks assistants to re-sculpt the face. The result of the assistants
work was a distorted, mutilated model, according to the artist,
which Tallix and FQC were in the process of casting and shipping to Portugal.
Flack came to me to see whether she had any recourse against Tallix or
FQC for the modification or destruction of the sculpture.
Under French law, every creator has a personal, perpetual, and inalienable
right to respect for the artistic integrity of the creative work. The
droit moral is generally considered to have five components: (1) the right
of paternity: a work must be attributed to its creator and to no one else;
(2) the right of creation: no one except the creator may determine whether
or when the work is put before the public; (3) the right of integrity:
no one except the creator can change the work; (4) the right to protection
from excessive criticism; and (5) the right to withdraw the work from
the public. Legal protection of an artists so-called moral
or personality right was controversial in the United States because
U.S. copyright law focused primarily on the protection of economic rights
and interests. Prior to 1990, artists relied on theories of contract law,
defamation, or trademark as a moral rights equivalent. In
1990, after years of debate, Congress enacted the Visual Artists Rights
Act (VARA) as section 106A of the Copyright Act, a limited form of moral
unauthorized re-modeling of the face performed by an assistant.
Legally, this right
vests in the artist a right of attribution and a right of respect and
integrity. VARA provides that the author of a work of visual art
shall have the right to claim authorship of that work, and shall have
the right to prevent any intentional distortion, mutilation, or other
modification of that work which would be prejudicial to his or her honor
or reputation, and to prevent any destruction of a work of recognized
We began an action for infringement of Flacks VARA rights and copyright
infringement based on the unauthorized creation of derivative works and
other claims. We also asked the court for temporary emergency relief to
maintain the status quo, which was granted. An artist who wishes to state
a claim under VARA must first establish that VARA applies because the
work meets the statutory definition of a work of visual art. A work
of visual art is defined by VARA in terms both positive and negative.
VARA affords protection only to authors of works of visual arta
narrow class of
art defined to include paintings, drawings, prints, sculptures, or photographs
produced for exhibition purposes, existing in a single copy or limited
edition of 200 copies or fewer. VARA attaches at the moment of creation.
The artist is protected because her creation infuses her spirit in the
work; the personality as well as the integrity of the work should be protected.
Flack was able to overcome the model exclusion in the law
(one of several exceptions) by showing how clay models by Bernini and
Rodin embody the hand of the artist. Flack next had to argue that her
work was of recognized stature in order to support a claim
for the partial destruction of a work of visual art when the clay head
was placed in the back yard.
Works of recognized stature, within the meaning of VARA, are those works
of artistic merit that have been recognized by members of
the artistic community and/or the general public. To achieve VARA protection,
an artist must show not only that the work has artistic merit, but also
that it has been recognized as having such merit. The stature of a work
of art is generally established through expert testimony. Because the
clay sculpture had been exhibited at Tallix and because expert affidavits
on Flacks work by her dealer, an art critic, and a curator were
submitted, the works recognized stature was never in
dispute. However, the court held that Tallixs placement of the head
in the garbage dump had not destroyed the workthat its
modification was caused by time and the elements, another exception to
Flack, however, prevailed in her claim against Tallix and FQC for hiring
her assistant. While Tallix and FQC argued that hiring Flacks assistant
was a conservation measure, also excepted from VARA, the court, nevertheless,
decided that hiring the assistant to sculpt the clay head could be gross
negligence. While it is clear that a property owner, foundry, or commissioning
entity does not have the right to complete the work without the artists
approval, there is no right of the artist, unlike in France, to compel
completion of the work, and the judge rejected Flacks argument in
unauthorized re-modeling of the face performed by an assistant.
By and large, artists
have not been very successful with claims under VARA: the work either
falls within one of several exclusions in the statute or, even more troublesome,
courts fail to recognize a work as complying with recognized stature,
which raises the possibility of judges making aesthetic judgments. One
artist who was successful in bringing his VARA claim sued the City of
Indianapolis, which demolished a work that was installed, by agreement
of the city, on private property. The court awarded damages in the maximum
amount allowed for non-willful VARA violation. On appeal, the artist argued
that the violation was willful and enhanced damages were warranted, and
the city argued that the evidence admitted to establish the recognized
stature of the art was inadmissible hearsay. The court held that
the evidence admitted was not hearsay, but it still found that the destruction
of the art was the result of bureaucratic failure and not willful. The
award of $150,000 in attorneys fees allowed under VARA was confirmed.
In other cases, sculptors have lost their VARA claims because courts have
held that the work was not protected because it was work for hire, had
been used for promotional or advertising purposes, or was not of recognized
stature. The artist Linda Scott claimed that a work done for a private
home was destroyed in violation of VARA when it was removed prior to the
sale of the property. The court concluded that the artist had not presented
evidence showing that the sculpture was a work of recognized stature,
reasoning that while the artist had achieved some level of local notoriety,
her stature was not so great as to afford VARA protection to each and
every work she created. The court then recognized a subjective exception
for another set of circumstances where an artists work is of a recognized
stature, stating that it would be hard pressed to hold that
a newly discovered Picasso is not within the scope of VARA simply because
it has not been reviewed by experts in the art communityraising
the troubling possibility of an impermissible attempt by the judiciary
to define art, perhaps an unfortunate consequence of Congresss
attempt to limit the scope of VARA.
Because of the difficulties in achieving VARA protections, many public
and private commissions provide for artists rights in contracts.
The Association of the Bar of the City of New York Model Agreement for
Commissioning a Work of Public Art (1986) provides for artist rights,
including identification, maintenance, repairs, and restoration. In addition,
the model agreement provides that the artwork shall not be intentionally
altered or mutilated and extends protection to the site for site-specific
VARA directed the copyright office to conduct a study to assess for Congress
the impact of the waiver of moral rights provisions contained in the legislation.
On March 1, 1996 the copyright office submitted its Final Report of the
Register of Copyright. The report includes excerpts of moral rights waivers.
Waivers are a frequent subject of negotiation in private and public commission
agreements, and every artist should carefully protect himself or herself
by contract if not able to bargain away waiver. Protection
by contract is less effective because, in the event of a breach, attorneys
fees and enhanced damages would not be available.
Barbara Hoffman practices law in New York. She was chair of the committee
that drafted the Model Contracts for Public Art for the Association of
the Bar of the City of New York.
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