Visual Artists Rights Act: Special Protection for Fine Art Works

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Certain types of artworks receive more rights than are normally granted under copyright law. The federal government has created a statute—the federal Visual Artists Rights Act (VARA)—that grants rights affecting reselling and destruction of artworks. Only some artworks receive protection under VARA—paintings, drawings, prints, photographs or sculptures in a single copy or limited edition of 200 copies or fewer (that are signed and consecutively numbered).

What happens if your wood sculpture is reproduced in a museum booklet or in a magazine review? Does that mass production remove the work from VARA status? No, you can still claim VARA rights as to the original.

Fine Art: Preservation

The VARA statute protects you, as the creator of a work of visual art, from “intentional distortion, mutilation or other modification of that work which would be prejudicial to your honor or reputation.” This is the most powerful right granted under the VARA provisions. For example, if a collector buys a limited edition silkscreen from you (fewer than 200 prints were made), the collector cannot destroy it without your permission. If the work is destroyed, you can sue under VARA and recover damages, provided you can prove that your reputation was damaged.

The rule regarding destruction does not apply if:

  • the work was created prior to enactment of the VARA provisions on December 1, 1990
  • you specifically waive the rights in a written statement, or
  • the destruction or modification results from the passage of time or because of the materials used to construct the work. For example, certain works such as ice sculptures and sand sculptures by their nature self-destruct, and the owner would have no obligation to affirmatively prevent such destruction.

Length and Transferability of VARA Protection

Although copyright protection normally lasts for the life of the artist plus 70 years, the rights granted under VARA last only for the life of the artist. Once the artist dies, VARA protection no longer exists, and the work can be destroyed without seeking consent.

No VARA Rights If Work Is Made for Hire

Under certain circumstances, the person who employs an artist or commissions an artwork acquires copyright ownership. (This “work-made-for-hire” principle is discussed here.) If artwork is created as work made for hire, there are no VARA rights. That is, although normal copyright law applies to the work, neither the artist nor the person commissioning the work can claim rights under VARA.

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