“Moral Rights” is concept that artists have an ethical right to control their creations, and protect the integrity of their work and their own reputation. So-called “moral rights” in intellectual property exist in various countries outside of the USA particularly in the EU. There is however, a portion of the US Federal Copyright Law, which does recognize certain moral rights within American borders. The Visual Artists Rights Act, known as VARA, became part of U.S. Law in 1990. VARA (17 USC Sec. 106A for those keeping score at home) grants certain rights and protections to creators absent from the rest of the Copyright Law.

Unfortunately VARA doesn’t apply in most copyright controversies. VARA essentially covers limited, fine art visual artworks, paintings, sculptures, drawings, prints, graffiti (see our next upcoming column) and photographs produced for exhibition. Within this group it can be argued that only a single copy or signed and limited editions of 200 or less, are actually protected by VARA.

New York, California, Massachusetts, Maine, Louisiana and about 10 other states have state laws that work in conjunction with VARA. Most are roughly similar to or dovetail with the Federal VARA statutes that apply to issue of alteration, defacement, miss-attribution, destruction, moving of the work from one location to another and so on.

First some sunshine: VARA grants gives authors exclusive rights to claim ownership, prevents the use of the author’s name on a distortion, mutilation or modification of the work which could damage the author’s reputation and can serve to prevent the destruction or alteration of a work by other than the creator.

These rights survive the sale of the work. Statutory damages under VARA might be available even if the work was not timely registered.

Sounds great doesn’t it?

And now the rain: VARA’s scope is very narrow, exceptions abound and creators often unknowingly waive any rights they may have under it. VARA deals only with works of visual art. Photographs and illustrations clearly fill the bill but it specifically excludes: packaging, posters, charts, newspapers, advertising, books, magazines, most advertising and the list goes on. The bottom line is that VARA is most likely to be used by a creators of fine art, “very” limited edition prints, sculptors, painters and the like who have not been commissioned by someone to create that work. Graffiti artists have recently employed the law to protect the use of their works on public buildings and elsewhere from being destroyed or employed without consent in advertising.

VARA gives qualifying authors the following rights:

  • To claim authorship;
  • To prevent the use of one’s name on any work the author did not create;
  • To prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation;
  • To prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation;
  • To prevent the destruction of a work of art if it is of “recognized stature”.

As you can see, many of the nuts and bolts aspects of employing VARA are vague, unclear, ambiguous or impractical both for lawyers and artists. If however, you are a fine artist working in a visual medium, it is worth taking a look at VARA and providing a copy of the law to your lawyer. Many attorneys are utterly unfamiliar with the law’s very existence. While it may rarely be employed, it can serve as powerful artillery on those limited battlefields where you can roll it out.

A column, part 2 of this subject specifically covering graffiti, will follow shortly.