With numerous exceptions, the Visual Artists Rights Act (the Act) grants three rights: the right of attribution, the right of integrity and, in the case of works of visual art of "recognized stature," the right to prevent destruction, pursuant to 17 U.S.C.S. § 106A. For works created on or after June 1, 1991 -- the effective date of the Act -- the rights provided for endure for the life of the author or, in the case of a joint work, the life of the last surviving author. The rights cannot be transferred, but may be waived by a writing signed by the author.
Defendants sought to remove a work of visual art installed in a commercial building that they owned and managed. Plaintiffs, three artists who were commissioned by a former tenant of the building to install the work, were granted a permanent injunction, which enjoined defendants from removing the work. Defendants appealed the issuance of the permanent injunction and the dismissal of its counterclaim for waste. Plaintiffs cross-appealed the dismissal of their counterclaim for tortious interference with contractual relations. On appeal, the court examined the provisions of the Visual Artists Rights Act (the Act), 17 U.S.C.S. § 101 et seq. and reversed the injunction.
Was the work of plaintiffs protected art under VARA?
American artists are to be encouraged by laws that protect their works. Although Congress in the statute just that, it did not mandate the preservation of art at all costs and without due regard for the rights of others. Under the Act, works made for hire by an employee were not protected. Excluded from the definition of a "work of visual art" is any work made for hire. The court went on to determine that plaintiffs were employees when they created the work; thus it was a work made for hire and not protected by the Act.