Monday, July 13, 2020
 

Happy Birthday VARA!


We would type-out the lyrics to that song, but you know what will happen.

Anyhow, Daniel Grant over at the WSJ has just written an article on the Visual Artists Rights Act of 1990, commemorating in part the statute’s 20th anniversary.

Grant asks,

[Q]uestions have arisen that were not predicted in 1990. Do artists have the right to stake out where that artwork will be permanently placed? Can artists claim that whatever they make and identify as art has to be treated accordingly? If a damaged artwork undergoes restoration and the artist doesn’t like how it was done, can the artist claim the work was “destroyed”?

Grant also wonders if “making something better actually makes it worse.” This raises a whole slew of questions and fact-finding, mainly the double-edged issue of what constitutes “better” and who gets to decide what that “better” is. Cleaning and restoration aside, under VARA, this right would belong to the artist.

Grant correctly notices that one thing VARA has provided the arts community is contractual commissioning language where the artist waives her/his moral rights. Is this bad? Not necessarily. If artists continue to educate themselves in law and artists’ rights (copyright, fair use, free speech, contracts), they will have educated themselves not only in the nuances of contractual language, but also in the art of negotiation and professional decision-making. Not every art commission is worth the trouble, and certainly no business arrangement should be one-sided.

One thing Grant notices is true: VARA decisions–particularly those at the appellate and Supreme Court level–are few and far between. Correct VARA decisions are another matter.

Two issues of note in Grant’s article:  one, Mr. Büchel did not initiate litigation against Mass MoCA. It was Mass MoCA that sued Mr. Büchel, seeking a court order granting them the right to exhibit Mr. Büchel’s work without his consent. Secondly, the District Court granted Mass MoCA permission to exhibit Mr. Büchel’s art work without his consent, so long as Mass MoCA made it apparent to viewers that what they were viewing was not the work of Christoph Büchel. [Disclaimer: I am one of the attorneys that is co-representing Mr. Büchel in this litigation].

Read Grant’s article in today’s WSJ here.

 

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Comments: 2

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  • Mr. Grant’s August 31, 2010 Wall Street Journal commentary about VARA and Ascalon v. Dept. of Parks & Rec., (MDPA 2010), presents the question whether “making something better actually makes it worse?” Of course, you note in your post that under VARA, the answer to the question of what is “better” must firmly rest with the Artist. VARA provides owners with a limited carve-out to “repair” or “restore” a work, however, whether an improvement is aesthetically appropriate is quite another matter. VARA correctly protects the art and the artist from abuse or gross negligence. Yet, twenty (20) years after its enactment, the dearth of case law under VARA leaves artists and owners with little guidance (but perhaps some common sense should fill in the gaps).

    Grant correctly identifies that the work in Ascalon needed to be restored because “the barbed-wire serpent had become overly rusted.” What is telling in this case is that the metal that was “overly rusting” was the wrong metal – it was the product of a metal supplier that passed off a weathering metal as Cor-Ten Steel. As noted in the Complaint, the passed off product was similar to Cor-Ten, but a later chemical analysis revealed significant distinctions. Had “Cor-Ten” been supplied and used there would likely be no issue today. Indeed, the rusting oxidized coating of genuine Cor-Ten would likely have stood the test of time (or at least the 10 years in this case). So, whether or not the restoration was necessary, when the decision was made to “restore,” had the owner worked with the artist or used Cor-Ten instead of Stainless Steel we might not be discussing this case today. [Disclaimer, I am Jason Schaeffer the attorney representing Mr. Ascalon in this case]

     
     
     
  • Hi Jason,
    First, my apologies for the belated post. It’s been a crazy two weeks.

    Thank you for your comments, which shed quite a bit of light and dare I say, also show the respect you have for your client and his sculpture.

    I agree with you wholeheartedly, not because I am for artists rights, but because this problem could have been resolved with a simple meeting to discuss restoration and funding, which I gather from news sources was not that difficult or expensive.

    Please keep me (and us) posted on the status of the case.

    Yours,
    sms

     
     
     
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