The Visual Artists Rights Act (VARA) (17 USC 106A) of the Copyright Act embodies an artist’s “Moral Rights.” Moral Rights generally include the right to attribution of one’s work, the right of integrity, and the right to disclosure. While twelve states have moral rights acts, they serve to supplement the federal law since its implementation in 1990.

VARA serves to protect works of recognized stature. Works of recognized stature, within the meaning of the Visual Artists Rights Act (VARA), are those works of artistic merit that have been recognized by members of the artistic community or the general public; to achieve VARA protection, an artist must show not only the work’s artistic merit but also that it has been recognized as having such merit. Scott v. Dixon, E.D.N.Y.2004, 309 F.Supp.2d 395, 70 U.S.P.Q.2d 1948.

The leading case on the “integrity” of a recognized work is Wojnarowicz v. American Family Association (745 F.Supp.130 S.D.N.Y.,1990). Artist David Wojnarowicz sued defendant Donald E. Wildmon, Executive Director of American  Family Association (AFA). Wojnarowicz, a multi-media artist from New York, claimed copyright infringement, defamation, violation of the Lanham Act and New York Artists’ Authorship Rights Act (NYAARA).

Wildmon campaigned against the National Endowment for the Arts for supporting what he claimed was “blasphemous” and “offensive” artwork. In an effort to undermine Wojnarowicz’ Tounges of Flame show, the defendant made photo-copies of the purportedly offensive work, created a pamphlet which articulated his agenda, and circulated thousands of copies.

Wojnarowicz’ claims for defamation and violation of the Lanham Act failed. Similarly, his claim for copyright infringement was futile as the court found that Wildmon’s use of the images was “for the purpose of commenting and criticizing on an issue of public concern” and thus, was protected as Fair Use. While his other claims failed, Wojnarowicz was successful in arguing that Wildmon violated his right to integrity under NYAARA.

NYAARA states that “no person shall knowingly publish a work of fine art (or reproduction) in an altered, defaced, mutilated or modified form.” Thus, under the New York act, an artist’s moral right to integrity includes the right to prevent the reproduction of a work in an altered form. It is important to note that the court discussed the defendant’s intention to harm Wojnarowicz’ reputation by “attributing…selectively cropped versions of his originals.” Thus, the court found that the defendant was not entitled to First Amendment protection for criticism.

In the end, Wildmon was enjoined from further distribution or publication of his pamphlets (as he clearly sought to harm the plaintiff’s professional and personal reputation) and ordered to pay damages of $1.00 (Yep, $1.00 b/c Wojnarowicz could not prove actual damages).

James Boyle, professor of law and co-founder of the Centre for the Study of the Public Domain at Duke University comments on the content of his book “The Public Domain: enclosing the commons of the mind.”

Listen to the MP3 here.

Download the book as a .pdf here.

Mark Rothko died testate on February 25, 1970 leaving an estate consisting primarily of 798 paintings. Within three weeks, the co-executors of his estate, Bernard J. Reis, Theodoros Stamos, and Morton Levine hastily executed 2 contracts disposing of the majority of the paintings. Rothko’s daughter (Kate) and son (Christopher), in addition to the Mark Rothko Foundation, Inc. (a charitable beneficiary), instituted proceedings to remove the executors, rescind the contracts, return the unsold paintings, and damages for breach of fiduciary duties.

Generally, the executor of an estate must act with honesty, impartiality, and diligence. Reis was the director and owner of MNY, an art gallery which had a previous contract to sell Rothko paintings. This dual position, sales person and executor, created a situation which he could not impartially face. In fact, Reis endeavored to sell the works to his MNY gallery at 50% commission (the previous commission was 10% while Rothko was living). Stamos, in an apparent effort to curry favor with MNY, acquiesced to the sales and, “placed him[self] in a position where his personal interests conflicted with those of the estate.” The court further noted, “Stamos acted negligently and improvidently in view of his own knowledge of the conflict of interest of Reis.” The third co-executor, Levine, likewise breached his duty,

while not acting in self-interest or with bad faith, nonetheless failed to exercise ordinary prudence in the performance of his assumed fiduciary obligations since he was aware of Reis’ divided loyalty, believed that Stamos was also seeking personal advantage, possessed personal opinions as to the value of the paintings and yet followed the leadership of his co-executors without investigation of essential facts or consultation with competent and disinterested appraisers…

The court held, in part, “an executor who knows that his co-executor is committing breaches of trust and not only fails to exert efforts directed towards prevention but accedes to them is legally accountable,” and affirmed the lower court’s decree of appreciation damages against them.

The Pirate Bay founders are found guilty, sentenced to a year in jail, and ordered to cough up $3.6 million (30 million kronor). I think it’s time to file an appeal.

More here.

What started as a gesture by Los Angeles based graphic designer Shepard Fairey to show his support for a Presidential candidate has turned in to a street born viral marketing campaign for Democratic Nominee Barack Obama. It seems that Obama’s proposed policy for the future of the Arts has inspired a fervor at the grassroots level.

The recent months have seen a street movement in support of Obama, which the campaign itself has embraced. Obama for Artists features art and merchandise donated to the campaign by artists to raise money for the movement.

Denver based Andenken Gallery recenly hosted the Manifest Hope event which coincided with the Democratic National Convention. Manifest Hope took place in a 10,000 square foot warehouse where artists were invited to make and display work in support of a [Read more...]

The Organization for Transformative Works (OTW) recently launched. OTW is “a nonprofit organization established by fans to serve the interests of fans by providing access to and preserving the history of fanworks and fan culture in its myriad forms.”

OTC promotes creativity by pushing the boundaries of copyright protection. The volunteer-based organization supports fanworks as fair use, “works are recognized as legal and transformative and are accepted as a legitimate creative activity. We are proactive and innovative in protecting and defending our work from commercial exploitation and legal challenge.”

In 1979, the United States General Services Administration (GSA) selected Richard Serra to create an outdoor sculpture for installation at 26 Federal Plaza in lower Manhattan. The sculpture was commissioned under GSA’s art-in-architecture program which mandated that one half of one percent of the construction cost of federal buildings is reserved for funding artworks by living American artists.

Serra received a fee of $175,000 for building a sculpture on Federal Plaza. The contract he entered provided that “all designs, sketches, models, and the work produced under this Agreement.. . . shall be the property of [the United States].”  Furthermore, the agreement contained no provisions restricting the Government’s use of the sculpture after it was purchased.

Tilted Arc was completed and installed at Federal Plaza in 1981. All was not well following the installation of the 120 foot long sculpture. According to the Second Circuit’s factual background,

The pigeons had barely begun to roost on “Tilted Arc” before the sculpture became the object of intense public criticism. GSA received hundreds of letters from community residents and federal employees complaining about the sculpture’s appearance and its obstruction of Federal Plaza’s previously open space.

Because the sculpture created such widespread dissent, the GSA held a public hearing on the matter. Many heralded the sculpture for its artistic merit while others bemoaned the obstruction of Federal Plaza and the sculpture’s “unappealing aesthetic qualities.” In May 1985, it was decided that Tilted Arc would be relocated.

Serra filed a lawsuit in December 1986 alleging that the GSA’s decision to remove Tilted Arc violated his rights under the Free Speech Clause of the First Amendment, the Due Process Clause of the Fifth Amendment, federal trademark and copyright laws, and state law. In addition to a declaratory judgment and an injunction against removal of the sculpture, Serra sought damages in excess of $30,000,000. The district court dismissed his suit stating  that the decision to relocate Tilted Arc was “a content-neutral determination made to further significant government interests and that the hearing provided all the process that was due.”

On appeal, Serra would challenge the rejection of his free expression claim. Unfortunately, the Second Circuit did not agree with him, holding that while private works are protected under the First Amendment, nothing in that guarantee precludes the Government from controlling its own expression or that of its agents. The court continued, “Tilted Arc is entirely owned by the Government and is displayed on Government property. Serra relinquished his own speech rights in the sculpture when he voluntarily sold it to GSA.”

On March 15, 1989, Richard Serra’s Tilted Arc was removed from 26 Federal Plaza in Lower Manhattan. Just where is the sculpture today? Sold as scrap to a recycler? Chipped into bits and incorporated into a Richard Tuttle show? The answer is: None of the above. Apparently, the sculpture is languishing in a Brooklyn warehouse where it has been for the 20+ years since its removal from Lower Manhattan. According to Serra, Tilted Arc is site-specific and he will not sanction any attempts to relocate the piece.