Do artists have rights in artworks that they have sold to others? France, Germany, and other European nations have long recognized that artists, including specifically visual artists, would retain “moral rights” in the artist’s work, impacting the ability of owners of the piece to modify, manipulate, edit, censor or destroy such works (even though the owner has full ownership rights, and thus can sell, store, exhibit, transport or loan the work, as would be expected with personal property). As an aspect of joining the international Berne Convention for the Protection of Literary and Artistic Works, the United States added the Visual Artists Rights Act (VARA) to its copyright laws in 1990. With it, the United States has joined other nations that serve to protect visual artists’ rights (for their lifetime) to prevent others from modifying (or destroying) visual artworks of “recognized stature” in a way that may harm an artist’s reputation, as well as prevent any intentional or grossly negligent destruction of an artwork (regardless of the stature of the work).
In one of the first cases to examine VARA in depth, the federal regional Second Circuit Court of Appeals has recently affirmed that the damages caused by such covering up or destruction of artists’ works, even in a situation where the works were aerosol spray paint graffiti works fixed on walls on and in a property owned by another (the Defendant) and generally expected to be non-permanent. Even so, in Castillo v. G&M Realty L.P. (Second Cir., 18-498-cv, Feb. 20, 2020), the appellate panel affirmed a full award not of actual damages (which the trial court had determined would be difficult to calculate), but rather of statutory damages, as allowed by the Visual Artists Rights Act, of $30,000 per work, multiplied by a factor of five for each work on the basis that the damage done to the art works was willfully done, resulting in a total damages award of $6.75 million ($150,000 per work x 45 art works).
In reflecting upon the temporary nature of graffiti art, the appellate panel noted that VARA does not categorize art as “permanent” or “temporary,” and thus the court saw “no justification for adopting an additional requirement not included by Congress.” Castillo at 17. Additionally, the panel explained, “Although a work’s short lifespan means that there will be fewer opportunities for the work to be viewed and evaluated, the temporary nature of the art is not a bar to recognized stature.” Id. (emphasis added).
Note that even though the Berne Convention does not differentiate an artist’s “moral rights” based on the field in which they practice, be they a novelist, a playwright, a poet, a sculptor, or a cinematographer, yet the Visual Artists Rights Act in the United States is narrowly that (a protection for visual artists), and the Castillo court decision makes some effort to explain this distinction, stating that the law “recognizes that, unlike novelists or composers, for example, visual artists depend on the integrity of the physical manifestations of their works. Artists’ moral rights ‘spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality, as well as the integrity of the work, should therefore be protected and preserved.” Castillo at p. 11 n. 1 (quoting from an earlier case from the same court, Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995).
(For those owners of original visual works of art curious about their rights with respect to the artworks they own, note that, in the United States, per VARA, the artists’ moral rights with regard to preserving the works from modification or destruction may be waived if the artist expressly agrees; however, the waiver, and the scope of the waiver, must be in writing.)
