Student Note on the Visual Artists Rights Act

A part of the installation under dispute between Mass. MoCA and Christopher Buchel 

Elizabeth M. Bock has a student note in  the Michigan Law Review on the Visual Artists Rights Act. From the Introduction:

In 2010, the Court of Appeals for the First Circuit confronted the novel question of when moral rights protections vest under the Visual Artists Rights Act. In Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel, the First Circuit determined that the protections of the Visual Artists Rights Act begin when a work is “created” under the Copyright Act. This Note argues that this decision harms moral rights conceptually and is likely to result in unpredictable and inconsistent decisions. This Note proposes instead that these statutory protections should vest when an artist determines that his work is complete and presents it to the public. This standard is more consistent with the history of moral rights. Additionally, public access is necessary to justify a treatment of art different from that of other types of property, and it is a more essential component of moral rights than an artist’s feelings of connection to his work. Finally, the legislative intent behind the Visual Artists Rights Act and the reasoning in previous judicial decisions are more accurately reflected by a public disclosure standard. Utilizing “creation” as a vesting point for moral rights is not supported by the history of the Visual Artists Rights Act and will result in uncertainty and inconsistency in future decisions.

Student Note on VARA

The Fall 2009 issue of the Rutgers Law Review has a student comment by Seth Tipton titled:  CONNOISSEURSHIP CORRECTED: PROTECTING THE ARTIST, THE PUBLIC AND THE ROLE OF ART MUSEUMS THROUGH THE AMENDMENT OF VARA.

From the introduction:

As will be discussed, VARA falls woefully short of granting meaningful and broad moral rights to artists. Most notably, deceased artists do not benefit from any of the protections of VARA. As such, it is imperative that Congress amend VARA to make the right of attribution perpetual and grant community standing to enforce
those rights where the artist is deceased. This Note will discuss the legal solutions that the amendment of the VARA could provide to ameliorate the hazards of the aforementioned issues of misattribution, increase the strength of American moral rights legislation, and protect and strengthen the role of museums in American
society.

Part I of this Note examines the inherent risks associated with assigning authorship to pieces of art. Although a highly important part of the sale and scholarship of art, this Part discusses the weaknesses of art connoisseurship. Also, this Part considers how those troubled methods of attribution cast considerable uncertainty in the assignation of authorship for the artwork of long-deceased authors. Part II maps the development of both the legal doctrine arising from misattribution and some of the solutions crafted by auction houses in response. This Part discusses the inadequacy and unpredictability of current common law doctrines developed to deal with misattribution. 

Part III introduces and explains the philosophical and intellectual underpinnings of moral rights and tracks the development of moral rights legislation in Europe. This Part discusses the inherent personal nature of moral rights and the key distinction between moral and economic rights.

Part IV goes on to introduce and explain state preservation statutes and the emergence of moral rights in American law. This Part also discusses the adoption of VARA. This Part explains that VARA’s
stated goal of protecting the artist’s honor and reputation is unattainable in light of its limitations when compared to European models.

Part V of this Note is a call on Congress to amend VARA. This Part posits that the European model of perpetual moral rights is a form of moral rights that should be implemented in American law. This Part goes on to suggest that perpetual moral rights could be combined with examples of community standing, readily available in state cultural preservation statutes throughout the United States, to vastly improve the actual protections VARA affords.

Lastly, Part VI revisits the solutions created by art auction houses to respond to liability for misattribution. This Part discusses how this model could be quickly and easily adapted as a pragmatic method of remedying a suit brought under an amended VARA. Armed with these examples and their success, Congress could
recreate a VARA that could ensure the protection of the moral rights of deceased artists, safeguard the societal position that museums occupy, and ensure that the public is given access to trustworthy and
objective information.