VARA again? Jimenez’s Mustang

A group of irritated citizens from Denver, Colorado are seeking to have a public sculpture piece removed. The sculpture piece, a 32-foot-tall fiberglass mustang horse, created by Luis Jimenez, sits at the entrance of Denver International Airport. It allegedly has scared residents and visitors into freightened submission, but not to the extent of curtailing complaints or petitions to have it removed. However, and according to the WSJ, Denver city rules stipulate that “any public-art installation…remain in place for at least five years, to honor the artist’s intent and give the work a chance to grow on the public.”

We’re not sure what, if any, moral rights Jimenez would have under Colorado state law. But under VARA, Jimenez is out of luck, as VARA rights cease at the end of the calendar year in which the artist died. However, and based on the given facts, an interesting issue does arise. Joint-authors are also protected under VARA, and VARA rights expire at the end of the calendar year of the death of the last surviving artist. The WSJ report cites that upon Jimenez’s death in 2006, “Mr. Jimenez’s widow and children helped finish the sculpture[.]” Although much more fact-finding would be necessary, if this is true it allows for the possibility that Jimenez’s wife and children are joint-authors, therefore raising a (very) possible VARA issue.

Assuming this was plausible, and under the “integrity” prong, Jimenez’s “joint-authors” would have to prove intentional distortion, mutilation, or other modification of the artist’s work that was prejudicial to his or her honor or reputation or, any intentional or grossly negligent destruction of his art work (which is of recognized stature).