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May 2005 Vol.24 No.4
A publication of the International Sculpture Center

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U.S. Artists Battle for Moral Rights
by Barbara Hoffman

Audrey 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 sculptor’s assistant to complete the artwork over the sculptor’s objections?

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 sculptor’s 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 Flack’s 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.

Flack’s original rendering of the figure’s face.

By 1998, given the controversy, Tallix sought assurances of FQC’s 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 Tallix’s 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 Flack’s assistants to re-sculpt the face. The result of the assistant’s 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 artist’s 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 rights” protection.

The 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 stature.

We began an action for infringement of Flack’s 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 art—a 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 Flack’s work by her dealer, an art critic, and a curator were submitted, the work’s “recognized stature” was never in dispute. However, the court held that Tallix’s placement of the head in the “garbage dump” had not destroyed the work—that its modification was caused by time and the elements, another exception to VARA.

Flack, however, prevailed in her claim against Tallix and FQC for hiring her assistant. While Tallix and FQC argued that hiring Flack’s 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 artist’s approval, there is no right of the artist, unlike in France, to compel completion of the work, and the judge rejected Flack’s argument in this respect.

The 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 attorney’s 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 artist’s 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 community”—raising the troubling possibility of an impermissible attempt by the judiciary to define “art,” perhaps an unfortunate consequence of Congress’s 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 works.”

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, attorney’s 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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