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FAQ

What are the Rights of Visual Artists?

Western Europe has a history of observing artists' "moral rights." These rights arise from the integrity and personal rights of artists, rather than their economic rights. The US has not embraced such rights as fully as Europe, but it has made significant steps in that direction. The federal Visual Artists Rights Act (VARA) of 1990, an amendment to the 1976 Copyright Act, provides visual artists with tools to protect their rights of attribution and integrity. Both artists and buyers of art should be aware of the rights VARA provides.

What types of material does VARA protect?

VARA protects works of visual art, as defined by the Copyright Act. These pictorial, graphic and sculptural works include paintings, drawings, prints, sculptures and photographs. They must be made for exhibition and produced as a single copy or limited edition of 200 copies or fewer. Only works that qualify for copyright protection also qualify for VARA protection.

VARA does not apply to movies, maps, posters, models, costumes or other works. Nor does it protect any works for hire, even if they are pictorial, graphic or sculptural works.

Finally, the work must be of recognized stature.

What rights does VARA protect?

The Visual Artists Rights Act provides two categories of rights: the right of attribution and the right of integrity.

  • With the right of attribution, the artist can claim authorship of a work; prevent use of the artist's name on a work that was not made by him or her; and prevent use of the artist's name in connection with his or her own work if it has been mutilated, distorted or modified in a way that would be prejudicial to the artist's honor or reputation.
  • With the right of integrity, the artist can protect his or her honor and reputation as reflected in the work of visual art by stopping the intentional or grossly negligent destruction of the work and the intentional mutilation, distortion or modification of the work.

It is not a violation of an artist's rights if the work is damaged simply because it became old, because it was modified by the passage of time or because of the nature of the materials in the art. Public display and conservation efforts that damage the work are not violations, either.

When an artist sells a work or the copyright in a work, does the artist also sell the rights provided by VARA?

No. Only the author of a work of visual art can own the rights under VARA and only the author can sue to enforce those rights. It does not matter who owns the actual work or the copyright because the rights under VARA are personal rights, not economic rights, and they cannot be sold.

What can owners of works of visual art do to make sure they observe artists' rights under VARA?

If a building owner wants to remove a work of visual art that is part of a building and the work cannot be removed without being damaged, the building owner must attempt to notify the artist.

While an artist cannot sell or give away rights under VARA, the artist can waive his or her rights. This can protect the owner of a work of art. The agreement must be in a writing that specifically names the artwork, identifies the uses of the artwork to which the waiver applies and is signed by the artist. If there are two artists, the agreement must be signed by both.

And, of course, owners of visual art should work to take good care of the pieces.

What are the legal remedies when an artist's VARA rights have been violated?

The artist can sue for monetary damages (actual or statutory) and may be awarded attorney's fees. The artist also may sue for a temporary or permanent injunction to stop the offending action.

If you have questions about your rights under VARA, contact an experienced attorney for answers.

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