The Special Moral Rights of Visual Artists Under VARA

Under the Berne Convention for the Protection of Literary and Artistic Works, visual artists have “moral” rights in their copyrighted works. Implemented through the Visual Artists Rights Act of 1990 (VARA), these “moral” rights generally provide the visual artist with additional protection against the “distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”

Defining Works of Visual Art
Copyright generally protects original works of authorship that are “fixed” in any tangible medium of expression, including works of visual art. The following categories of work are included in the definition of a “work of visual art” as provided by the federal Copyright Act (the Act):
Still photographic images (produced for exhibition purposes only)
The Act additionally requires that the aforementioned works of visual art exist in a “limited edition of 200 copies or fewer that are signed and consecutively numbered by the author” in order for copyright protection to attach. Sculptures must also bear the signature or other identifying mark of the author.

However, the Act excludes several types of work from the definition of visual art, in which case copyright protection does not apply. The types of work that are not protected by copyright as works of visual art include any poster, map, globe, chart, technical drawing or diagram, among others. Further, a work of visual art does not typically include any merchandising item or advertising, promotional or packaging material or container. A work of visual art does not include any work made for hire.

Rights of Visual Artists to Attribution and Integrity
Section 106 of the Act gives all copyright owners exclusive rights in copyrighted works (to make copies, prepare derivative works, etc.). However, as a result of VARA, Congress added Section 106A to the Act, which provides visual artists with the independent “moral” rights of “attribution and integrity.” In general terms, the right of attribution concerns the right of a visual artist to claim or deny authorship, while the right of integrity concerns the right to prevent or recover damages for the intentional modification of a work of visual art.

Section 106A specifically provides a visual artist with the right to:
Claim authorship of the work
Prevent the use of their name as the author of any work of visual art which they did not create
Prevent the use of their name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to their honor or reputation
Prevent any intentional distortion, mutilation, or other modification that would be prejudicial to their honor or reputation
Prevent any intentional or grossly negligent destruction of a work of recognized stature
These rights endure for the life of the visual artist.

Exception for Removing Works of Art Fixed to Buildings
Despite the independent “moral” rights of a visual artist, Section 113 of the Act carves out an exception for removing works of art fixed to buildings. Pursuant to Section 113, the owner of a building may destroy the building and any permanently attached works of art which are part of the building, without having to risk liability to the authors of the attached works.

Specifically, the exclusive “moral” rights in a work of visual art do not apply, and the owner of a building will not be liable for removing a work of visual art, when the following two elements are satisfied:
A work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion or mutilation of the work; and
The author consented to the installation of the work in the building either before the effective date of VARA, or in a written instrument that is signed by the building owner and the author.
Registration of a Work of Visual Art
Copyright protection is automatic once an original work is created, and federal copyright laws no longer require copyright notice to be affixed to a work as a condition for copyright protection. However, registering a copyrighted work with the U.S. Copyright Office is an affirmative way for a copyright owner to provide notice of ownership to others, and can prevent a wrongdoer from using the defense of “innocent infringement.” The copyright owners of works of visual art can register their work with the Copyright Office by completing Form VA (for a work of the visual arts).