Rights of Artist Impact Landlord and Tenant
 
March 1, 1999
 
Stephen W. Snively- Orlando

The Visual Artists Rights Act of 1990 (VARA) is an obscure federal statute which enables an artist to protect artwork from damage or destruction, even though the artist no longer owns the artwork or its copyright. If the artwork has been incorporated into a building, the artist could control the development or use of the building. This is a serious problem for anyone seeking to change the appearance of a building. It can be particularly vexing to a landlord who, after struggling to evict a tenant, retakes possession only to discover that the premises can no longer be leased because protected artwork was left behind.

With the merger of entertainment and retail activities, artwork is used frequently in shopping centers. It is seen in common areas as wall murals, mosaic tile floors, fountains and architectural enhancements. Tenants create themed environments through the use of artistic creations. With this increased use of art, a basic understanding of VARA is important to both landlords and tenants. The main provisions of VARA can be found in 17 U.S.C. §§ 106A and 113.

Concept of Moral Rights

French civil law protects the "moral rights" of artists, those personal rights of a non-economic or spiritual nature. This protection is founded on the belief that when art is created, an intangible and unique part of the artist is imparted to the work. Accordingly, the artist has the right to be recognized as the creator of the work and prevent its damage or destruction. In the United States, traditional property law principles provide that all rights pass with ownership of the work and its copyright. VARA changed these principles by adopting the French concept of "moral rights" for artists.

Works of Visual Art

VARA protects "works of visual art" which are defined to include only paintings, sculptures, prints, drawings and still photographic images. It must be signed by the artist and be a single creation, or part of a limited edition of 200 copies or less, each numbered consecutively. Still photographic images must be for exhibition purposes. The definition excludes any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, database, electronic information service, merchandising article, advertising, packaging material or container. Works of visual art incorporated in buildings could include mural paintings, mosaic tile floors, unique architectural components, fountains, stained glass windows, frescoes, and themed interiors for entire rooms.

Made for Hire

A work of visual art which was "made for hire" is not protected by the law. Generally, it would be deemed made for hire if created by an authorized employee. Determination of whether an artist is an employee is based on the substance of the relationship, considering such factors as the degree of control, scope and duration of the relationship, level of skill required, availability of customary employee benefits, frequency and method of payment, source of raw materials, providing of tools, and the terms of any written agreement. If the artist is an independent contractor, the work of visual art will probably be protected by the law.

Rights of Attribution and Integrity

The moral rights protected by VARA consist of the "right of attribution" and the "right of integrity." The right of attribution protects the artist's name, reputation and honor. The artist can prohibit others from claiming the work as their creation, and can prevent use of the artist's name if the work is modified. The right of integrity enables the artist to prevent an intentional distortion, mutilation or modification of the work of art. It would not apply to changes resulting from the passage of time, nature of the materials, conservation or public presentation. These rights may be enforced only by the artist and, although prohibiting certain changes, do not necessarily prohibit destruction of works of art.

Removal Without Destruction or Damage

The ability of a building owner to remove an integrated work of visual art depends on whether it can be accomplished without destruction, distortion, mutilation or other modification. If removal will not cause destruction or damage, there is a procedure pursuant to which the work may be removed, even if the artist does not actually consent. Artists may record their names and addresses with the Register of Copyrights. VARA requires a building owner to make a diligent good faith effort to notify the artist of the proposed removal of the work of art. If the artist has a recorded address, a registered mail letter to that address would suffice. If the artist has not recorded an address, whether the building owner has made a diligent good faith effort to notify the artist would be a factual determination. If notified by the building owner, the artist has 90 days within which to remove the work of art. Although the artist must pay for any such removal, the artist would reacquire title to the work. If the artist cannot be notified, or if the artist does not remove the work within 90 days of notification, then the building owner may remove the work of art, provided that it is not destroyed, distorted, mutilated or otherwise modified.

If Removal Causes Destruction

There is no clear standard for determining what constitutes "destruction" of a work of visual art. With sophisticated techniques and equipment, it is possible to remove almost anything without its destruction. Nonetheless, some courts have suggested that a "reasonable cost" standard should apply. If the cost to remove the work of art without destruction is unreasonable, then it should be deemed as not capable of removal without destruction.

VARA provides that works of art of "recognized stature" may not be destroyed without the actual consent of the artist. This provision protects not only the artist, but the interest of the community in preserving more significant works of art. Because the term "recognized stature" is not defined by the law, it must be determined on a case-by-case basis and may vary in different parts of the country. If a work of "recognized stature" cannot be removed without its destruction, then it cannot be removed without the consent of the artist. If the work is not of "recognized stature," there is no prohibition on removal by the building owner if such removal necessitates its destruction.

The first case to consider what constitutes "of recognized stature" was Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994). The work of art was a building lobby decorated with an environmental/recycling theme. Attached to the floors, ceilings and walls were a variety of objects including recycled glass and old things donated by tenants of the building. There was a large mosaic on the walls and floor, an open mouth which surrounded the entrance to the elevator, a fluorescent snake and "space junk" suspended from the ceiling. The entire lobby was considered a single work of art because of its coordinated thematic elements. The court stated:

The recognized stature requirement is best viewed as a gatekeeping mechanism - protection is afforded only to those works of art that art experts, the art community, or society in general views as possessing stature. A plaintiff need not demonstrate that his or her artwork is equal in stature to that created by artists such as Picasso, Chagall or Giacometti. Nor must the trier of fact personally find the art to be aesthetically pleasing.

It then concluded that the lobby constituted a work of art of "recognized stature" because it was both meritorious and recognized by members of the business community. It can be expected that courts will show considerable latitude in determining what is of "recognized stature." The "work of art" in the Carter case was installed by a tenant. The lawsuit was not filed by the artists until after the tenant went bankrupt and the building owner sought to remove the items from the lobby. This case demonstrates the importance to building owners of including lease provisions that prohibit making works of visual art part of the building without the prior written consent of the building owner.

If Removal Causes Damage

If removal of the work of art would not destroy it, but nonetheless result in its distortion, mutilation or other modification, it cannot be removed without the consent of the artist. If the artist does not consent, and removal will damage the work of art, it cannot be removed, regardless of whether the work of art is deemed of "recognized stature." In such circumstances, the occupant of the building must adapt its use to the continued presence of the work of art.

Waiver of Rights

Although rights of an artist under VARA cannot be transferred, they can be waived. An oral waiver may be effective if given before the effective date of the law. All other waivers must be in a writing that identifies specifically the work of art and the uses to which the waiver applies. A written waiver is effective only for the work of art and uses described. If more than one artist created a work of art, any one artist may waive the rights of all artists. The waiver may be required, even if the artist does not own the work of art or hold its copyright. Rights under VARA die with the artist. The owner or other occupant of a building should, before allowing a work of visual art to be incorporated into the structure, confirm clearly that VARA does not apply or obtain a waiver of the artist's rights thereunder.

Enforcement of Rights

Since the moral rights of attribution and integrity are personal in nature, only the artist can enforce those rights under VARA. The rights belong to the artist, regardless of who owns the work of art or holds its copyright. If more than one artist created the work, the rights are held jointly and continue until the last artist dies. Remedies for violation of VARA include injunctive relief, money damages and attorneys' fees.

Conclusion

VARA achieves a delicate, albeit imperfect, balance between the property rights of building owners and the newly recognized "moral rights" of artists. A work of art incorporated into a building, which can be removed, without damage or destruction, may be removed only after the prescribed notice provisions are follows. A work of art cannot be removed if it would be distorted, mutilated or otherwise modified, without the consent of the artist. If the work of art also qualifies as being of "recognized stature," it cannot be removed if it would result in destruction, without the consent of the artist. Under traditional property law principles, it may seem ironic that artists have less ability to prevent destruction of a work of art not deemed of "recognized stature," than to prevent its distortion, mutilation or other modification. This reflects the influence of principles of "moral rights." The reputation and honor of the artist could be injured more if an altered work continued to be displayed, in a condition not intended by the artist, than if it were destroyed.

As the line between traditional retail shopping and entertainment becomes blurred, there are more works of art incorporated into shopping center buildings. Every building owner and tenant should understand the nature and extent of rights held artists under VARA, which exist independently from ownership of the work of art or its copyright.

Mr. Snively is a Partner in the Orlando office and practices in the real estate practice group. He can be reached at 407-244-2112, or by e-mail at ssnively@hklaw.com