The Visual Artists Rights Act - A Primer

There cannot be a discussion of copyright issues without a survey of the Visual Artist Rights Act (“VARA”).    This addition to the Copyright Act in 1990 was a welcome one for painters, photographers, sculptors and creators of visual artwork.  One major difference from the “traditional” copyright law is that rather than protecting reproductions of artwork, VARA protects the actual original pieces themselves, limited to “works of visual art” such as paintings, sculptures, drawings, prints and still photographs produced for exhibition.  What VARA was designed to protect was an artist’s moral rights in the artists’ work.

Just as with other provisions of the Copyright Act, the duration of protection under VARA is not a simple rule. For works of visual art created on or after June 1, 1991, the rights conferred by VARA endure for a term consisting of the life of the author.

With respect to works of visual art created before June 1, 1991, but title to which has not, as of June 1, 1991, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by the Copyright Act as we defined them earlier in this chapter.  For illustration, if fictional artist Joe Smith created a painting in 1990, but did not sell that painting until 1992, his VARA rights would continue as long as he holds the copyright.

Finally, in the case of a joint work prepared by two or more authors, the rights conferred by VARA shall endure for a term consisting of the life of the last surviving author.

The underlying philosophy is the “belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality, as well as the integrity of the work, should be protected and preserved.”  Moral rights then, for the purposes of VARA, fall into two categories: (1) rights to attribution and (2) rights to integrity.

Rights to attribution (sometimes referred to as paternity rights) give artists the exclusive right to claim authorship of their work or disclaim works that are not their creation.  Rights to integrity authorize artists to prevent any intentional distortion, mutilation, or modification of their work which would be prejudicial to their professional standing,  honor or reputation.  Destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

The moral rights protected by VARA also include the artists’ right of disclosure or divulgation, which allows the artist to determine when a work is complete and may be displayed.  And finally, one of the most important moral rights: the right of integrity, which allows the artist to prevent his or her work from being displayed in an altered, distorted, or mutilated form.

What does this all mean?

A real world summation of VARA is this: visual artists have moral rights in the original works that they create – even after those works have been sold to buyers.  Ownership of a piece of visual artwork covered by VARA is not an absolute property right.  Thus, you can’t buy an original painting by a professional artist and intentionally distort it or modify it without giving the artist a claim against you under VARA.

It means that if your business or gallery is exhibiting a visual work of art, you must correctly attribute that work to its true the creator.  Misidentification can allow the creator to publicly disclaim authorship of your piece, which, in certain circles, could become a significant PR issue.

It also means that if you are a visual artist, you do have rights under VARA that you can (and should!) exercise when the conditions present themselves.