Monday, May 7, 2012

Artist's Rights in Public Mural

Dear Rich: I was hired to do a mural in a San Francisco apartment building. There's no contract and I get a flat fee. I'm being paid by the company that manages the building. Who owns the mural? If you're asking who owns the copyright, we think you own it. If you're asking who owns the mural itself, we think the owner of the building owns it. In other words, you would control the duplication, and distribution of copies of the work and you would have granted an implied license to the building owners to display the work in the apartment house. But wait .... by creating a fine art works you also acquire rights under a federal law, the Visual Artists Rights Act (VARA) and a state law, the California Art Preservation Act (CARA).
VARA. VARA protects an artist's rights in a work of fine art (of less than 200 copies) if it is a painting, drawing, print, or sculpture. The artist acquires the right to prevent the intentional distortion, mutilation, or modification of the work. The rights granted under VARA —known as attribution and integrity—are not transferable. Only the artist can exert these rights. Although copyright protection normally lasts for the life of the author plus 70 years, the rights granted under VARA last only for the life of the artist. That is, once the artist has died, the work can be destroyed under VARA without the destroyer seeking consent from the artist’s estate. If the artwork is created under the terms of a work made for hire agreement, the artist acquires no rights under VARA.
CARA. The California Art Preservation Act provides for civil penalties and injunctive relief for the intentional or grossly negligent destruction or mutilation of a work of fine art, defined in the statute as any original painting, sculpture, or drawing that is of "of recognized quality."Under the California statute (California Civil Code Sections 986-989), for example, an artist is entitled to 5% of the resale of a work of fine art. These rights survive for 20 years after the death of the artist.
CARA + VARA. Both of these laws enable an artist in California to prevent the mutilation or destruction of a commissioned art that becomes a fixture or part of the building. For example, when a building owner painted over a famous L.A. mural without first providing notice as required under California law, the artist sued under the California and federal laws and recovered 1.1 million.
But is it art? At least one court has ruled that in order for VARA to apply, the work at issue must have more than “artistic merit” or “some level of local notoriety”; it must be of “recognized stature” as an artistic work. In that case, the court permitted unauthorized dismantling of a 6,000-pound swan sculpture.