An Artist’s Moral Rights Under VARA and CAPA
(By. W.J. Brutocao)
When an artist creates a work of visual art, such as a painting, sculpture, photograph, engraving, print, or the like, there are several distinct types of legal rights that the artist has with respect to the work of art. Frequently, people get confused about these different types of rights.
For example, I have often heard an artist say something like, “I sold my painting, so that means I no longer own the copyright.” Such a statement is incorrect. Ownership of the physical object is different from ownership of the copyright, and both of these are different from the artist’s moral rights.
In order to understand these various rights, it is useful to get a basic understanding of three types of rights. These are:
First, the “proprietary right” refers to the ownership and right to use the physical object. So if an artist creates a painting, sculpture or other physical work of art, and has not made any agreement that the work belongs to someone else, the artist will own the proprietary right. That simply means that the artist owns the object itself. Then the artist might transfer the proprietary right to someone else. A transfer of the proprietary right, however, does not transfer the copyright and it has no effect on the artist’s moral rights.
If you think of photographs or prints, it is easier to understand what this means. Suppose an artist creates a limited edition of prints, say 100. The artist initially owns all 100 prints and then he or she can sell one or more of the prints. Each person who buys a print owns that particular print, but the artist still owns all the unsold prints, and more importantly, the buyer of the print does not acquire the copyright. The copyright is still owned by the artist, unless of course the artist transfers the copyright as well.
The key point is that transfer of ownership of a physical object, e.g., a painting, print, sculpture, etc., does not transfer the copyright or have any effect on the artist’s moral rights. Similarly, the transfer of a copyright does not transfer ownership of any physical object or have any effect on the artist’s moral rights.
Second, the copyright in a work of art is a “bundle of rights” including the right to reproduce (copy) the work, to distribute it, to create derivative works, to display the work and in the case of works that are capable of performance (e.g., a play or song) the right to perform it publicly. Also, the copyright owner has the right to authorize others to perform any of these rights.
An artist can transfer all or a portion of the rights under a copyright. Some rights can be implicitly authorized. For example, when an artist gives away or sells a painting, print, or sculpture, and nothing else is said on the subject, the recipient generally has an implicit right to display the artwork, although there may be limitations on this right.
The law of copyright is complex and covers a wide variety of circumstances. This article is not intended to address copyright law in any comprehensive sense, only to point out that copyright is different from the proprietary right, and both, as noted, are different from the artist’s moral rights.
Third, “moral rights” (derived from the French droit moral) provide certain personal rights to the artist. These rights have been recognized in Europe since the 19th century, but only recently have been recognized in the United States.
The first recognition of moral rights in the US was found in the California Art Preservation Act (“CAPA”) enacted in California in 1980. Several other states passed similar laws, and then in 1990 the federal government passed the Visual Artist’s Rights Act (“VARA”), which now is the primary US law on the subject of an artist’s moral rights.The rest of this article discusses moral rights in more detail.
Moral Rights Derive From the Berne Convention of 1886
In 1886 many of the Western nations, but not the US, agreed to the so-called “Berne Convention.” The full name of that convention (which is basically a multi-lateral treaty among nations) is “The Convention for the Protection of Literary and Artistic Works.”
The Berne Convention established that member nations had to recognize certain moral rights of artists and authors. Specifically, Article 6 bis of that convention states:
“The author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”
This provision is the basis for two essential moral rights, which are generally referred to in this country as the right of attribution and the right of integrity.
Although most of Europe adhered to these concepts since 1886, the US did not join the Berne Convention until more than 100 years later in1989. Then in 1990, the US passed VARA, which accords to visual artists the rights of attribution and integrity.
CAPA, which California passed 10 years earlier, also provides rights of attribution and integrity.
There are some differences between CAPA and VARA, and there may be cases where CAPA applies but VARA does not apply, and vice- versa. Also, as a general proposition, when VARA applies, CAPA will not apply. Analysis of whether CAPA or VARA applies in any particular case can be complex. In the event of a specific situation where a person needs to know whether CAPA or VARA applies, any concerned person should contact an attorney who is familiar with these laws.
The important point for any artist is that he or she has certain rights of attribution and integrity that are not given up merely because the artist has transferred ownership of his or her artwork or even has transferred the copyright.
Moral Rights Can Be Waived
Although you cannot transfer the moral rights, an artist can waive those rights. A waiver has to be in writing. Just as with anything else in dealing with art, someone who purchases a work of art might want the artist to waive his or her moral rights. This is negotiable. If there is a written contract or other document pertaining to the artwork, the artist should carefully read it to see if it contains a waiver of his or her moral rights.
The Right of Attribution
The right to be identified as the artist who created a particular work of art would seem to be non-controversial. Yet, until CAPA and VARA became the law, an artist did not have that right in this country. What the right of attribution means is that an artist has the right to claim authorship of a particular work of art, or in appropriate circumstances to disclaim it.
For example, if the work has been altered or displayed in a manner inconsistent with the artist’s wishes, the artist might want to disclaim authorship.
Interestingly, other countries recognize rights of attribution to literary works and movies, as well as works of visual art, but not the US. The author of a novel, move script or other literary work, does not have a legally recognized right of attribution (or any other moral rights).
The Right of Integrity
Under VARA, an artist has two related rights of integrity:
First, the right to prevent intentional distortion, mutilation or other modification of the work which would be prejudicial to his or her honor or reputation; and
Second, the right to prevent destruction of a work of “recognized stature.”
This two-tier recognition of the right of integrity highlights the distinction between works of visual art generally and works of “recognized stature.” In the first category, an artist can prevent intentional distortion, mutilation, etc., but not destruction. In other words, if a painting or sculpture is not considered to be a significant work of art (a work of “recognized stature”) the owner or another person may destroy it without violating the artist’s right of integrity under VARA.
This is one of the areas where CAPA and VARA differ.
There is no two-tier approach under CAPA. If the work qualifies as a work of fine art of “recognized quality,” then it cannot be intentionally altered or destroyed.
Another important point to understand is that VARA and CAPA protect against intentional acts (or gross negligence) but not ordinary negligent acts. So, for example, if a person accidentally damages or destroys a work of art, there is not a violation of the artist’s right of integrity.
Types of Works Covered By VARA
VARA only applies to works of visual art. It specifically includes the following:
Paintings, drawings, prints, sculpture, and still photographic images produced for exhibition purposes.
Each of those works must exist in a single copy or in a limited edition of no more than 200 copies that are signed and consecutively numbered by the artist or, in the case of a sculpture, that bear an identifying mark.
Thus, in the case of photographs and prints, VARA will only apply to a limited edition of no more than 200 prints, signed and consecutively numbered by the artist.
The following types of works are specifically excluded from VARA:
Posters, maps, globes, charts, technical drawings, diagrams, models, applied art, motion pictures and other audiovisual works, books, magazines, newspapers, periodicals, databases, electronic information services, electronic and similar publications, advertising, merchandising, promotional and packaging materials, and any works made for hire.
The exclusion of works for hire from VARA is an important limitation on the artist’s moral rights. Whether a particular work of art is or is not a work for hire is sometimes difficult to determine. An artist should bear in mind and understand that if his or her work is a work for hire, then there will be no moral rights under VARA.
Artwork on or Incorporated in a Building
Both VARA and CAPA have special rules about art that is part of a building. If the art is incorporated into the building in such a way that it cannot be removed without causing significant damage to the artwork, then VARA and CAPA do not apply.
If the art can be removed from the building, and the owner wants to get rid of it, the owner can give the artist a 90-day notice to remove it at the artist’s expense. If the artist fails to take appropriate steps within the 90-day period, then the owner can remove it from the building.
Differences Between VARA and CAPA
The main differences between VARA and CAPA are:
(1) VARA applies to works of visual art created on or after June 1, 1991, or to works created before that date if ownership had not been transferred from the artist. CAPA applies to works of fine art of recognized quality no matter when they were created.
(2) Rights under VARA last for the life of the artist. Rights under CAPA last for the artist’s life plus 50 years. Thus, after the artist’s death, his or her heirs could enforce rights under CAPA, but not VARA.
(3) VARA does not apply to any work for hire. CAPA has a somewhat similar but not identical concept – CAPA does not apply if the work was created under a contract for commercial use. In other words, commercial art is not covered.
(4) CAPA protects against alteration and destruction of any work of fine art to which it applies. VARA has the two-tier approach whereby it protects against alteration of any work of visual art to which it applies, but protects against destruction only of works of “recognized stature.
Conclusion
Many artists are unfamiliar with their rights. Hopefully, this article can help artists recognize their three basic types of rights regarding their art: the proprietary right to own a particular object; the copyright to control reproduction, distribution, etc. of copies of the work; and moral rights of attribution and integrity. An artist can transfer or waive these rights. The important thing is to know your rights, and negotiate about them intelligently.
You may download the pdf of this document below.
