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17 U.S.C.S. § 106A(a)(3)(B) provides that the author of a work of visual art shall have the right to prevent any destruction of a work of recognized stature. The phrase "recognized stature" is not defined in the Visual Artists Rights Act of 1990. In light of the preservative goal of this section, however, the recognized stature requirement is best viewed as a gate-keeping mechanism--protection is afforded only to those works of art that art experts, the art community, or society in general views as possessing stature. A plaintiff need not demonstrate that his or her artwork is equal in stature to that created by artists such as Picasso, Chagall, or Giacometti. Nor must the trier of fact personally find the art to be aesthetically pleasing.
Defendants, owners and managing agent of a commercial building, sought to terminate installation of artwork commissioned by prior tenant and remove artwork already in place. Plaintiffs, the artists, filed an action pursuant to the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C.S. § 101 et seq., to prevent the alteration or destruction of the work.
Was the artwork entitled to protection under the VARA?
The court determined that under VARA the artwork was a single work and not excluded as "applied art." Analysis of the Reid factors led to the conclusion that the artwork was not a "work made for hire." The court then held that the work was of recognized stature and was entitled to protection under VARA and granted injunctive relief to the artists. The court did not grant damages or attorney's fees for copyright infringement however, holding that such awards were unavailable for unpublished work commenced before the date of copyright registration.