Will the Visual Artists Rights Act Prevent Cities from Removing Offensive Artwork?
Angela Kershner*
The current debate over the removal of statues honoring Confederate soldiers has led at least one commentator to question whether a federal statute protecting the moral rights of artists might prevent their removal. See Cathy Gellis, Because of Course There Are Copyright Implications with Confederacy Monuments, Techdirt (Aug. 18, 2017, 11:55 AM), https://www.techdirt.com/articles/20170818/09155838022/because-course-there-are-copyright-implications-with-confederacy-monuments.shtml. Due to the age and nature of most Confederate statues, it is unlikely that laws such as the Visual Artists Rights Act would prevent their removal. Brian Frye, Moral Rights & Confederate Monuments, Faculty Lounge (Aug. 21, 2017, 12:18 AM), http://www.thefacultylounge.org/2017/08/moral-rights-confederate-statutes.html. However, because of changing societal norms, it may well be the case that such laws will prevent the removal of other public art that is deemed offensive.
- THE VISUAL ARTISTS RIGHTS ACT
The Visual Artists Rights Act of 1990 (VARA) was established to give authors of certain types of visual art moral rights over their artwork, even after it is sold. Nicole Martinez, How to Keep Your Street Art Alive Under the Visual Artists Rights Act, Art L.J. (Mar. 25, 2016), https://artlawjournal.com/how-to-keep-your-street-art-alive-under-the-visual-artists-rights-act/. It applies only to “paintings, drawings, prints, sculptures, and still photographic images produced for exhibition” that are otherwise copyrightable. Id. It also only applies to works sold after VARA took effect on June 1, 1991. Thomas D. Kearns, When Art Meets Building: A Primer on the Visual Artists Rights Act, Olshan L. (July 1, 2014), http://www.olshanlaw.com/blogs-Real-Estate-Law-Blog,When-Art-Meets-Building.
There are two situations in which artists may exercise control over their work under VARA. The first is to recover damages for or “prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to . . . [the artist’s] honor or reputation.” Visual Artists Rights Act, 17 U.S.C. § 106A(a)(3)(A) (2012). The second is to recover damages for or “prevent any destruction of a work of recognized stature.” Id. § 106A(a)(3)(B).
If the artwork can be removed without destroying or damaging it, then the landowner must give the artist ninety days’ notice to allow the artist to remove the artwork at the artist’s expense. Kearns, supra. If the artist does not remove the artwork within ninety days of receiving the notice, the landowner may remove it, even if its removal results in its destruction. Id. If the artwork cannot be safely removed, the artist may be able to obtain an injunction preventing its removal or the artist may sue for damages if the artwork has already been removed, including statutory damages of up to $150,000. Id.
- CONFEDERATE MONUMENTS
VARA is likely to hinder the removal of few if any Confederate monuments. First, nearly all of the monuments in question are stone or metal statues which could easily be removed without sustaining damage See, e.g., The Confederate Monument Preservation Assessment, McKay Lodge Laboratory Fine Art Conservation, http://mckaylodge.com/confederate-monument-preservation-assessment/ (last visited Nov. 2, 2017) (detailing materials used in a typical early Confederate monument); Veterans, Monuments and Memory, Civ. War Tr., https://www.civilwar.org/learn/articles/veterans-monuments-and-memory (last visited Nov. 2, 2017) (describing various statues at Gettysburg made of marble and bronze). If VARA applies, the property owners need only give the artists ninety days’ notice and an opportunity to remove the statues themselves. Kearns, supra. After ninety days, if the artist has not removed it, the property owner may then remove the statue. Id. Such a requirement will only delay removal of the monument. See id. An example of a Confederate monument that could not be safely removed is the Confederate Memorial Carving, a large high-relief sculpture chiseled into the side of Stone Mountain in Georgia. Whose Heritage? Public Symbols of the Confederacy, S. Poverty L. Ctr., (Apr. 21, 2016), https://www.splcenter.org/20160421/whose-heritage-public-symbols-confederacy [hereinafter Whose Heritage?].
Second, there have only been, at most, fifty-two Confederate monuments installed in public spaces since VARA went into effect. See Whose Heritage?, supra (providing a timeline chart and displaying the number of “monuments on courthouse grounds” and “other sites (including monuments)” dedicated after 1991). Therefore, the absolute maximum number of confederate memorials nationwide that could possibly be proteted by VARA is fifty-two. See id. However, it is difficult to estimate how many of these memorials might actually qualify for protection, due to limitations in the data. A study done by the Southern Poverty Law Center, which counted Confederate monuments nationwide, indicated the date of the “monuments and other symbols” based on when they were installed, dedicated, or rededicated, whichever is most recent. Id. The relevant date for determining if VARA applies is the date when title to the work passed to someone other than the artist, not the date of dedication, rededication, or even installation. See Kearns, supra. Therefore, the information from that study only gives an upper limit to the number of statues that might be protected by VARA. Furthermore, some of the symbols counted in the study are not works of art that would qualify for VARA protection, but instead are plaques or roads named after prominent Confederate figures. See Whose Heritage?, supra.
However, there is at least one statue honoring a Confederate soldier that is new enough to qualify for VARA protection. In 2009, Waverly, Missouri installed a “new bronze statue” of Joseph O. Shelby, a slave owner and Confederate general. Amanda Holpuch & Mona Chalabi, ‘Changing History’? No – 32 Confederate Monuments Dedicated in Past 17 Years, Guardian (Aug. 16, 2017, 4:54 PM), https://www.theguardian.com/us-news/2017/aug/16/confederate-monuments-civil-war-history-trump. The Shelby statue, which is protected by VARA, could be removed without damage, and thus may only have its removal delayed by ninety days. See Kearns, supra. However, if there exists a new Confederate statue in a form where it cannot be safely removed, it could be protected from removal by VARA for the artist’s lifetime. See id.
- OTHER OFFENSIVE ART
Though VARA is unlikely to hinder the removal of Confederate monuments, there are other works in public spaces that VARA could protect. It is not only monuments to the Confederacy that people are currently clamoring to remove, but monuments to various politicians, world leaders, and historical figures who have either been deemed racist or who have committed atrocities. See, e.g., Paige Cornwell, Seattle Mayor Ed Murray Calls for Removal of Confederate Monument, Lenin Statue, Seattle Times (Aug. 23, 2017, 3:14 PM), http://www.seattletimes.com/seattle-news/seattle-mayor-murray-calls-for-removal-of-confederate-monument-lenin-statue/; Derek Hawkins, Former Philly Mayor Frank Rizzo Was No Confederate. But It’s Open Season on His Statue., Wash. Post (Aug. 18, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/08/18/phillys-frank-rizzo-was-no-confederate-but-its-open-season-on-his-statue/; Edward Helmore, New York Mayor Considers Christopher Columbus Statue Removal, Guardian (Aug. 25, 2017, 2:09 PM), https://www.theguardian.com/us-news/2017/aug/25/new-york-christopher-columbus-statue-de-blasio.
One type of artwork that VARA may give the highest protection to, and which is commonly found in major cities, is murals. Kearns, supra. Though no appellate court has yet addressed the issue, at least one United States District Court has held that murals are “removable even if painted directly on outside brickwork.” Jeffrey P. Cunard, Moral Rights for Artists: The Visual Artists Rights Act, U. Or., http://pages.uoregon.edu/csundt/copyweb/CunardCAA2002.htm (last visited Nov. 2, 2017). However, due to the logistics and expense involved in removing murals, it is likely that other courts would disagree. Cf. Martyn Gregory, Banksy Fans Move an Entire Wall – to Save His Work from, Er, Graffiti Artists, Daily Mail (Nov. 28, 2009, 5:31 PM), http://www.dailymail.co.uk/news/article-1231758/Banksy-fans-entire-wall–save-work-er-graffiti-artists.html (describing costly method used to move part of a short wall containing a mural). If a mural painted after June 1, 1991, in a public space is later deemed offensive by local residents, and a court believes the mural cannot be safely removed, those residents may have to wait until after the artist dies to have that mural removed. See Kearns, supra.
As our society progresses, certain symbols and imagery which were once considered harmless or commonplace could now be seen as offensive. Residents of an area containing art that includes those images will naturally want that art removed. VARA’s creation of moral rights could result in the delay of the removal of such artwork. Kearns, supra. Such delay could either be only ninety days, or could last decades, until the artist’s death. Id.
*Angela Kershner is a second-year law student at the University of Baltimore School of Law, where she currently serves as a staff editor for Law Review, a Legal Writing Fellow in the Legal Writing Center, a research assistant for Professor Eric Easton, a teaching assistant to Professor Joshua Sarnoff (Introduction to Lawyering Skills/Torts), and a research assistant for Dean Claudia Diamond.
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