In the Studio: Know Your Rights

Until 1990, when the British comedy group Monty Python (whose work included television, film, theater, audio recordings, literature, etc.), won a lawsuit restricting the broadcast of edited programs, artists in the US essentially had no ability to preserve their work from any kind of damages.

The Visual Artists Rights Act (VARA) of 1990, 17 U.S.C. 106 A, is a US law granting certain rights to artists. VARA was the first federal copyright act to grant a shield to moral rights (the rights to claim authorship and right to object to any modification of the work). Under VARA, works of art that meet specific requirements are supported with additional rights, notwithstanding of any succeeding physical ownership of the work itself, regardless of who holds the copyright of the work.

Moralistic Rights Include:

Acknowledgment or divulgation: allows the artist to decide if the work is completed and may be displayed.

Authorship or attribution: allows the artist to preserve the testimony of his/her name with his/her work, and to revoke it when applied to a different name.

The right of recession: allows the artist to modify or withdraw his/her work from the subsequent publication.

Sincerity: allows the artist to prevent his/her work from being promoted or marketed in a modified, distorted, or damaged form.

Moral rights under VARA can be waived, but unlike a title and copyrights, they cannot be sold or transferred to anyone else. Once the artist gives them up, moral rights to the artwork no longer exist. For example: a ceramic artist may insist on proper attribution of her design/clay object, and in some instances may sue the owner of the physical clay object for destroying the design/clay object even if the owner had lawfully owned it.

The Berne Convention for the Protection of Literary and Artistic Works, signed in 1886, required the protection of these rights by signatory states, and it was in response that the US Congress passed the VARA law.

Exclusive Rights Include:

Right to claim authorship.

Power to restrict the use of one’s name  on any work the artist did not create or one that has been distorted, mutilated, or modified in a way that it would be prejudicial to the artist’s honor or reputation.

VARA authorizes an artist to waive their rights, something commonly not even permitted in France and several other European nations whose regulations were the original inspiration for the moral rights of artists’ concepts and original creations.

Work Created On or After June 1, 1990

The rights granted under VARA endure for the life of the artist. Protections though will last for 50 years beyond the death of the artist. In case of a collective work prepared by two or more artists, rights bestowed by subsection shall endure for a term consisting of the life of the last surviving artist.

VARA provides protection to:

Paintings, drawings, and prints

Sculpture

Still photographic images produced for exhibition alone, pictures existing in single copies, in limited editions of 200 or fewer copies, signed and numbered by the artist(s)

VARA does not protect:

Work made for hire, posters, maps, globes or charts, technical drawings, motion pictures, books, promo-
tional materials.

Any work not subject to general copyright protection

VARA reinforcement is limited to visual works that fall within a closely defined category. VARA commands sturdy limitations on any alteration or removal of those works. A buyer of the work must secure written waivers from the artists if they wish to practice any of the exclusive rights under VARA.

Work covered by VARA can be relocated as long as the action does not constitute destruction, distortion, or mutilation of the original work.

Constitutional Resolutions:

Violation of moral rights are the same as civil rights, but are not criminal. Remedies available for copyright violation are:

Writs, confiscation, damages, profits or statutory damages, costs, and reasonable attorney fees.

Statutory damages: $500 to $20,000 maximum, increasing to $100,000 for willful violation and decreasing to $200 for innocent infringements.

Under VARA, an artist has a cause of action in federal court even if his/her artwork is not registered within the copyright office. The amount of monetary damages could increase if the artwork is registered before any breach; an artist should register his/her copyright as soon as possible.

It’s important for artists to be informed that VARA practices precise federal goals of action, and supplementary protections are often available under certain ordinances.

Mamta Gholap received her MBA in finance and is passionate about handbuilding with clay.

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