Antoinette M. Tease Montana Patent
Intellections
The Visual Artists Rights Act: Beyond Copyright Law

By virtue of the Visual Artists Rights Act, artists have intellectual property protection that extends beyond traditional copyright law. Under copyright law, an artist has the exclusive right to reproduce, distribute, perform and display her work, as well as to create derivative works based on the copyrighted work. A derivative work is defined as "a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." 17 U.S.C. 101.

The Visual Artists Rights Act, on the other hand, provides artists with a special form of protection that covers the rights of integrity and attribution. The Act was effective June 1, 1991, and it covers paintings, drawings, prints and sculptures. Any item that exists solely in a unique original is covered by the statute, as are works in multiple copies if they are issued in a limited edition of 200 copies or fewer and signed and consecutively numbered by the author. In the case of a sculpture of which more than one original exists, protection is afforded if the sculpture is a limited edition in multiple cast, carved, or fabricated sculptures of 200 or fewer, and if the copies are consecutively numbered and bear the signature of the author.

Photographs are protected under the Act only if they are produced for exhibition purposes, which disqualifies the vast majority of photographs. As long as the initial purpose of producing the photograph is for any type of exhibition, subsequent use for nonexhibition purposes will not divest the photograph of its protected status. Unlike other types of visual works of art, even a single original photograph must be signed by the author.

For so-called "avant-garde" art that cannot be easily classified as a painting, drawing, print or sculpture, the plaintiff bears the burden of proving that the work qualifies under the Act. Courts are to use common sense and generally accepted standards of the artistic community in determining whether a particular work should be protected, and the materials and media used are not dispositive.

The following types of works do not qualify for protection under the Act: works for hire; any work that is ineligible for copyright protection (such as, for example, a work that was based on an unauthorized adaptation of another copyrighted work); 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, electronic publication, or similar types of publications; and any merchandising item or advertising, promotional, descriptive, covering or packaging material or container.
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For works that qualify, the Act protects an artist's rights of attribution and integrity. These rights are separate and distinct from copyright ownership rights; therefore, an artist can assign the copyright in her work to a third party without giving up her rights under the Act. In fact, the rights of attribution and integrity are inalienable and will always rest with the original author. The right of attribution gives an artist the right to claim authorship, the right to prevent use of her name as the author of a work she did not create, and the right to prevent use of her name as the author of her work where the work has been distorted, mutilated or otherwise modified. Neither the statute nor the case law addresses whether the right of attribution is triggered only by a public display of the work, but as a practical matter, litigation based on a showing by a private collector in his or her home is not likely to be pursued.

The only remedy for a violation of the right of attribution is injunctive relief. The right of integrity, however, affords an artist the opportunity to obtain monetary damages as well as injunctive relief. The right of integrity is intended to prevent any intentional distortion, mutilation or other modification of the work, and the artist must prove prejudice to her honor or reputation. The right of integrity also includes the right to prevent destruction of a work of recognized stature. (The requirement that a work must be of "recognized stature" is analogous to the requirement in the trademark context that a mark must be "famous" in order to be protected under the federal anti-dilution statute.) There is no integrity violation if the modification is the result of the mere passage of time or the inherent nature of the materials. Similarly, there is no violation where the modification results from conservation or the public presentation of the work.

There are special rules pertaining to visual works that are incorporated into or made part of a building. The statute sets forth elaborate consent requirements relating to the removal of a work of art from a building if the removal would result in destruction or modification of the work.

Under the Act, joint authors are co-owners of the rights of attribution and integrity, and any one joint author can waive the right of attribution or integrity for all other authors. For works created before June 1, 1991, the term of protection under the Act is the same as under copyright law (which is currently the life of the author plus 70 years). For works created on or after June 1, 1991, the term is for the life of the author.

The Act preempts similar state law causes of action. Causes of action that arise from undertakings commenced prior to June 1, 1991 are not preempted, nor are causes of action that relate to legal or equitable rights that are not equivalent to the rights of attribution and integrity afforded by the Act. Because the Act covers only visual works of art, claims relating to other types of copyrightable works are not preempted. Lastly, activities that violate rights which extend beyond the life of the author (such as state law post mortem moral rights) are not preempted.
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The information in this newsletter is provided for informational purposes only and should not be considered legal advice. Please consult a qualified attorney for advice on a specific legal matter.

2004 Antoinette M. Tease, P.L.L.C. All Rights Reserved.

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