VARA Issues Blossom Into a Copyright Claim

If you own (or lease or operate) a building, an art gallery, a museum, if you are a governmental entity overseeing public property, if you are the creator of certain works of visual arts or if you fit a myriad other circumstances, a recent U.S. Court of Appeals case provides you with another example of the risks of copyright infringement for you to consider. The Visual Artists Rights Act of 1990 (VARA) creates certain inalienable copyright rights that must be considered when dealing with specific types of copyrighted works. These rights are not divested from the author (artist) simply by a transfer of copyright.

VARA was enacted when the U.S. joined the Berne Convention, and introduced into the U.S. Copyright Law a limited set of moral rights known as "rights of attribution" and "rights of integrity" that supplement general copyright protection. These rights are held by the artists who create specific types of visual art as defined in the Copyright Act. The "rights of attribution" include the rights to be recognized as the author of a work, to publish anonymously and pseudonymously, to prevent attribution of one's name to works one did not create, to prevent one's work from being attributed to other artists and to prevent the use of one's name as the author of any work of visual art in the event of distortion, mutilation or other modification of that work of visual art which would be prejudicial to one's honor or reputation. The "rights of integrity" include the right to prevent any intentional distortion, mutilation, or other modification of a work of visual art which would be prejudicial to one's honor or reputation.

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Alan Wernick

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