Patent, Copyright & Trademark: An Intellectual Property Desk Reference by Stim Richard

Patent, Copyright & Trademark: An Intellectual Property Desk Reference by Stim Richard

Author:Stim, Richard [Stim, Richard]
Language: eng
Format: azw3
ISBN: 9781413322224
Publisher: NOLO
Published: 2016-01-24T16:00:00+00:00


What’s Protected and What’s Not Protected by VARA

Protected by VARA

Not Protected by VARA

A limited edition of 20 copies of a silkscreen, numbered and signed by the artist.

A silkscreen image reprinted on 1,000 posters.

A sculpture of Noah’s ark.

Miniature replicas of Noah’s ark sold by a mail order company.

What happens if an oil painting is reproduced in a museum booklet or in a magazine review? Does that mass production remove the work from VARA status? No; the artist could still exert VARA rights over the oil painting. However, the artist could not prevent destruction or mutilation of the reprints in the booklet, because these would not be covered by VARA, although they would still be covered under normal copyright principles.

Under Section 106A, the creator of a work of visual arts can prevent the “intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” This is the most powerful right granted under the VARA provisions. For example, if a collector buys a limited edition photograph (that is, fewer than 200 prints were made), the collector cannot destroy it without permission from the artist. If the work is destroyed, the artist can sue under VARA and recover damages.

The rule regarding destruction does not apply if: (1) the work was created prior to enactment of the VARA provisions on December 1, 1990; (2) the artist specifically waives the rights in a written statement signed by the artist and owner of the artwork; or (3) the destruction or modification results from the passage of time or because of the materials used to construct the work. For example, certain works such as ice sculptures and sand sculptures self-destruct, and the owner would have no obligation to affirmatively prevent such destruction.

Under certain circumstances, the person who employs an artist or commissions artwork acquires copyright ownership. This principle is known as work made for hire. If artwork is created as work made for hire, there are no VARA rights. That is, although normal copyright law applies to the work, neither the artist nor the person commissioning the work can claim rights of integrity or attribution under VARA.

The rights granted under VARA—attribution and integrity—are not transferable. Only the artist can exert these rights. Although copyright protection normally lasts for the life of the author plus 70 years, the rights granted under VARA last only for the life of the artist. That is, once the artist has died, the work can be destroyed under VARA without the destroyer seeking consent from the artist’s estate.

Keep in mind as well that, as one court put it, “Not every artist has rights under VARA, and not everything called ‘art’ is protected by such rights.” When an artist attempted to claim rights under VARA for a political banner commissioned by an advocacy group, a court noted that Congress has specifically excluded advertising and promotional materials, and that the banner, even though it involved political advertising, was within this exemption. (Pollara v. Seymour, 344 F.3d 265 (2d Cir.



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