Return of the Repressed: Visual Artists Rights Act

Once again we face the predicament of giving judges the right to decide when something is art. If this rings a bell, it’s probably tolling from Massachusetts. Anyhow, Donn Zaretsky at the Art Law Blog comments on the recent lawsuit brought by Robert Rauschenberg against Robert Fontaine, claiming that Fontaine infringed Rauschenberg’s VARA rights when Fontaine sold some of Rauschenberg’s trash as art. It’s not clear to us how Fontaine went about this: whether he claimed the work to be an authentic Rauschenberg or whether Fontaine simply sold it as discarded junk from Rauschenberg’s trash heap (word is Fontaine sold some of this trash with forged certificates of authenticity).

Anyone following Rauschenberg’s demise since his combine days probably agrees that there is no difference between his art and trash, but this will be a defining moment for Fontaine if the judge agrees it is art, and therefore eligible for VARA protection. Otherwise, it’s just junk and according to Fontaine’s lawyers, subject to the laws of abandoned property, giving Fontaine the right to make or do with it as he sees fit (art or otherwise). However, Zaretsky does have a point that other copyrights may still apply, but perhaps only if Fontaine’s reworking of Rauschenberg’s trash/art is not transformative enough. Read Mark Randazza thoughts and why he believes VARA is useless here.

Incidentally, Willam Patry in his blog parcels out why a “mutilation” of a reproduction of an artwork is not in violation of its VARA rights. He gives an “example of someone who buys (assume a protected work of visual art) and then paints by hand a new work that represents a “mutilation” of the protected work, there is no violation of VARA, but there would be a violation of the right to prepare derivative works under Section 106, assuming the artist had not transferred his or her economic rights. If the artist had transferred those rights, he or she is simply out of luck.”