MORAL RIGHTS (continued) and ECONOMIC RIGHTS
Visual Artists Rights Act (VARA) of 1990
*applies only to authors of works of visual art: paintings, drawing, prints, sculptures and photographs
*which are produced for exhibition
*which exist in a single copy or limited edition of 200 or fewer copies
*rights granted: attribution, integrity, prevention of [intentional or willful] destruction IF the work is of "recognizable stature."
*duration of rights: life of the author; if a joint work, life of last surviving author
*rights cannot be transferred, but can be waived in writing
VARA does not apply to "works made for hire":
*"a work prepared by an employee within the scope of his/her employment"
*"a work specially ordered or commissioned for use as a contribution to a collective work"
Various states have recognized paternity and integrity rights for visual artists: CA, CT, LA, ME, MA, NV, NJ, NM, NY, PA, and RI.
Cases:
Carter v. Helmsley-Spear I (S.D.N.Y. 1994)
SIG Management Co. hired the plaintiffs to create a sculpture in the lobby of their building. See p. 235. SIG has gone into bankruptcy and Hemsley-Spear has taken over the management of the property. H-S wants to tear out the sculputre.
The artists have ask for and been granted a TRO; now they are seeking a preliminary injunction.
*don't "alter, deface, modify or mutiliate plaintiffs' sculptures and installations
*don't breach the original agreement
*don't deny the plaintiffs access to the lobby where the work is located
VARA is the applicable law. But is this a work for hire?
TEST:
I. WHO HAS THE RIGHT TO CONTROL THE MANNER AND MEANS BY WHICH THE PRODUCT (WORK OF ART) IS ACCOMPLISHED?
Decide by weighing 12 factors, none of which is determinative.
1. skill required
2. source of tools
3. location of work
4. duration of relationship between the parties
5. hiring party's right to assign additional projects
6. extent of hired party's discretion over when/how long to work
7. method of payment
8. hired party's role in hiring/paying assistants
9. whether the work is part of the regular business of the hiring party
10. whether the hiring party is in the business
11. provision of benefits
12. tax treatment
Look to the contract:
1. defendants contracted with the plaintiffs "to design, create and install sculpture and other permanent installations" in the lobby of a particular building
2. design credit will go to the plaintiffs
3. plaintiffs will own the copyright
4. defendants reserve the authority to direct the location of the installations
5. defendants are to receive 50% of earnings from the exploitation of the copyright (postcards, posters, miniatures)
II. Is the work installed in such a way that it cannot be removed without destruction? VARA won't protect the work if it can be removed intact. If it can't be so removed, is it a work of "honor and reputation"?
Expert witnesses
Carter v. Helmsley-Spear II (2d Cir. 1995)
See pp. 81 and 82.
Revisit the 12 factors.
The U.S. Supreme Court denied cert.
Pavia v. 1120 Avenue of the Americas Associates (S.D.N.Y. 1995)
In 1963, defendant-Hilton-Prudential commissioned Pavia to create a work for the lobby of the Hilton Hotel. The work was a large bronze sculpture (3 large standing diamond-shaped pieces and a 4th smaller piece lying on its side). The work was displayed for 25 years in that location and was favorably received by the critics and the media.
In 1988 Pavia agreed that the work could be moved to the lobby of the Hippodrome Garage. Two of the pieces were placed in the lobby; the other two crated and stored.
[VARA is passed in 1990].
Pavia is suing under:
The NY Arts and Cultural Affairs Law: improper display
defendants claim:
the statute of limitations has run
dismanteling vs. display
defendants claim VARA doesn't apply
Martin v. City of Indianapolis (7th Cir. 1999)
In 1986 Martin received permission to erect a large metal sculpture (Symphony #1) on land owned by a metal contracting firm for which he worked (LaFollette).
In 1992 City held a hearing about acquiring the LaFollette property as part of its Urban Renewal Plan. Agreements:
Martin would donate Symphony #1 to the City, but have imput into the location
City would pay the cost of removal to the new location
City would contact/give notice to Martin prior to bulldozing
Suprise destruction
Issues:
*Is Symphony #1 protected under VARA?--lack of expert witnesses
*Damages
Actual damages and any additional profits of the infringer
Statutory: $500-$20,000
If destruction intentional/willful, up to $100,000
*Was the destruction willful or intentional?
Phillips v. Pembroke Real Estate, Inc. (D. Mass. 2003)
Pl. is a well known sculptor. He helped design Eastport Park and created site-specific sculptures for the park. Def. leases the land on which the park is build and manages the park. Def.'s contract requires all changes to be approved by the Mass. Port Authority and the Boston Redevelopment Authority. Def. plans to redesign the park, donating, relocating or storing pl.'s sculptures.
Issues:
*VARA requirements
*Sec. 106(A)(3)(B)--public placement exclusion: "The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, is not a destruction, mutilation. . . unless the modification is caused by gross negligence."
site specific vs. plop art
*MAPA (Massachusetts Art Preservation Act)
Sec. 85S(a)-droit morale
Sec. 85S(h)-no protection for art that cannot be removed from a building without mutilation unless there is a written contract between the artist and the owner of the building.
*MAPA does not have a "public presentation" exclusion like VARA does
*MAPA was modeled on CA Act which does contain a real property exclusion and the MA legislature chose to change the wording
*Certify the question of law to the Supreme Judicial Court of MA
Phillips v. Pembroke Real Estate, Inc. (Mass. 2004)
Looking at the legislative history, the court decided that the MA legislature (back in 19984) did not intend MAPA to protect site-specific art.
While the legislature was concerned with creating new rights for artists, they were also concerned with "protecting the rights of property owners who commission artworks that become attaached to real property."
+MAPA "ensures that the owner of a building will be able to remove unwanted art from his property even if the removal would cause physical damage [unless there is a contract to the contrary] . . . thus, it prevent[s] the artist from holding the building hostage to the artworks."
+Otherwise, "the rights afforded artists would encumber private and public land with restrictions lasting for the life of the artist . . ."
ECONOMIC RIGHTS--RIGHT TO PROCEEDS--DROIT DE SUITE
The right of an artist to participate in income generated by the subsequent sales [lending] of her creation subsequent to the first sale.
In Belgium, Italy, Poland, Uruguay, Turkey, Germany, Portugal,Tunisia, Chile, Sweden, Czechoslovakia, Yuoslavia. Morocco, Luxembourg--
*the right last for life + 50 years
*art is sold at public auction or through a dealer
*art is valued at $2,500 or more
*artist gets 3% of sale price
In CA--
*5% for originial paintings, sculptures, drawings, works of art in glass, valued at $1,000+
By contract, e.g. the Projansky Contract for transfer of a work of art.
PUBLIC LENDING RIGHT
In a few countries, there is a Public Lending Right--when a book is borrowed from a public library, its author is credited with a small payment or library use royalty. This collects over a year and is paid in an annual lump sum.
Cf. Music
$ for sale
$ for each time the musical composition is played
Gore Vidal: "Since all civilized countries of the West have a Public Lending Right Law, it is only natural that the United States does not--and will not, ever. Our national bibliophobia is about as old as Dutch elm disease; and just as lethal."