Murals, Graffiti Art Copyright & VARA

*VARA Visual Artists Rights Act part of the US Copyright Law.

Yes, real artists paint on buildings and yes those artists own the copyright in the art.

A painting on a wall is different only in size and accessibility to the public from those on canvas or paper. Real artists paint on buildings and cars and busses. The fundamental legal issues facing mural and street artists are relatively straightforward. Most of us are aware that painting on a building or other public property can lead to civil and criminal liability. Less often considered are the interesting and nuanced legal issues concerning copyright and ownership of the work itself. How the work got on the wall does not alter the legitimacy of the expression, the work can even be vandalism and also protected by copyright. Although communities vary in artistic preferences, especially in their regulation of public art, the expressive and aesthetic value of art is separate from its status in that regulatory process. The fact remains that even “street art” is real and as advocates for arts and artists it is something we should come to terms with. In fact many cities and businesses in America (NIKE, Vans, Levi’s, and Frito Lay) have embraced this work both to advocate the legitimacy of street art, and to utilize this young urban medium for commercial purposes. Street artist Shepard Fairey helped define the brand of the last presidential election, inviting hordes of young people into the political process. Shepard Fairey is an ambassador.

Especially relevant to the public artists are the rights regarding the attribution and integrity of the work, which is part of the 1990 Visual Artists Rights Act that became part of copyright law. VARA applies to the work of artists who paint on building walls. Important rights also control secondary uses of the art such as the making of copies, t-shirts, postcards, posters, and other commercial goods.

How Copyright law applies to Murals

Copyright law is grounded in our constitution to ensure a continuing incentive for creativity. Copyright protects “original works of authorship fixed in any tangible medium of expression.” This means the author of an original work in a tangible medium of expression owns the copyright in that work from the moment of creation: the copyright springs into existence as soon as the pen leaves the paper (starting with the cartoon), or the paint hits the wall. The law applies to the work of Shepard Fairey, Jeff Koons, KAWS, Joe Cotter, Larry Kangas, and Robin Corbo the same as it applies to any other artist.

The rights of muralists under Copyright law

Once an image is “fixed in a tangible medium of expression,” the creator of the work enjoys the exclusive right to make and distribute copies, to display the work publicly, and to make derivative works (subsequent copyrightable creations based on the original work). Through stencils, sketches, and the final image, the muralist fixes this creative expression “in a tangible medium;” thus, earning the protections afforded by copyright law.

While the rights to the work itself pass to the owner of the wall by nature of the wall; ownership of the copyright stays with the author. Under copyright law, the artist is the sole holder of the copyright to his creations; however, if a piece is painted onto a building owned by another, the building owner is the rightful holder of that particular “copy” of the work. Lawyers can split this hair separating the copyright in the art from the rights in the work therefore; the building owner could cut out the wall on which the art was placed and sell or lend it.

A building owner cannot, however, begin making t-shirts, mugs or advertising with the design because doing so would constitute the creation of unlawful derivative works or copies—the building owner is no longer using the wall but, instead, is using the art itself. Similarly, a photographer could not legally photograph the wall and then proceed to sell or license the copies. Capturing the painting in photographs is a copy or derivative. It would be a derivative work to use the patterns in the artwork to make fabric designs, packaging, or as promotions for film or video projects. Most major film and video productions obtain clearances for murals appearing in background shots. The art is a valuable tool to establish the “look and feel” of a location.

The ownership of the rights can change if the artist gives the rights to someone by signing a “work for hire” agreement which has the effect to transfer the ownership of the rights in the work. That agreement must clearly state that the work will be considered a “work for hire.” There are good reasons why a street artist may not want to demand credit for his work nor trouble himself with copyright and compensation. If we are talking about graffiti, making such a demand could expose the artist to civil and criminal liability for vandalism, trespassing, and a host of other potential violations. These uncredited artists miss out on some copyright protections recognitions and royalties in their copyrights and devalue their otherwise legitimate work.

The artists can also give up the rights in the artwork with a license, transfer or assignment of the rights in the work. The artist can give up some or all of the rights, its up to the seller and buyer.

The Duration of Copyrights For works created on or after January 1, 1978, when an artist creates a work under a pseudonym (for example, calling oneself “KAWS” instead of signing with one’s actual name) or creates a work anonymously, the copyrights in that work only lasts for the lesser of 95 years from first publication or 120 years from the year of its creation. However, if an artist's identity is revealed in the registration records of the Copyright Office (including in any other registrations made prior to the expiration of the copyright term), then the term will last for either (a) the life of the author plus 70 years; or (b) in the case of a work made by more than one person, for the life of the last surviving author plus 70 years. These nuances often mean that an unattributed work fades into the public domain much sooner than an attributed work. The Visual Artist's Right of Attribution and Integrity

We know that a building owner can sell the building or the wall itself but cannot make t-shirts of the art. Another question is whether a building owner may paint over a given work of art. The standard provisions of copyright law only prevent people from violating the copyright holder's exclusive rights which include distribution, making copies, and selling or licensing derivatives. The artist and copyright holder would typically be powerless to stop the destruction

of the work except for VARA which might add additional rights. If the work is of “recognized stature” the artist may be able to prevent its destruction by exercising his moral rights under the Visual Artist's Right of Attribution and Integrity (“VARA”).

VARA was enacted in 1990 as an amendment to the Copyright Act, to provide for the protection of the so-called “moral rights” of certain artists. “[M]oral rights afford protection for the author's personal, non-economic interests in receiving attribution for her work, and in preserving the work in the form in which it was created, even after its sale or licensing.” VARA provides that the author of a “work of visual art,” “shall have the right,” for life,

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

How VARA applies to a mural including street art.

Upon passing VARA in 1990, Congress instructed courts to use common sense and generally accepted standards of the artistic community in determining whether a particular work falls within the scope of the definition of a “work of visual art”, and explicitly stated that “whether a particular work falls within the definition should not depend on the medium or materials used.” Protection of a work under VARA can depend upon the work's objective and evident purpose.

VARA protects only things defined as “work[s] of visual art.” There is no clear bright line standard for where this applies. The congressional debate “revealed a consensus that the bill's scope should be limited to certain carefully defined types of works and artists, and that if claims arising in other contexts are to be considered, they must be considered separately” (Thus the “legislation covers only a very select group of artists”). VARA does not protect advertising, promotional, or utilitarian works, and does not protect “works for hire”, regardless of their artistic merit, their medium, or their value to the artist or the market.

As the quoted text reflects, VARA confers rights only on artists who have produced works of “recognized stature,” or whose “honor or reputation” is such that it would be prejudiced by the modification of a work. To determine whether a work is of “recognized stature,” courts typically apply a two-part test: (1) the work is viewed as meritorious and (2) this stature is recognized by art experts, other members of the artistic community, or some other cross-section of society. To satisfy this test, the artist will probably have to rely on expert witnesses; however, a long-existing work with some importance to the community should be sufficient. For the purposes of this determination, “recognized stature” can be either recognition of the work itself, or of the artist.

The rights of muralists under VARA

VARA grants artists a type of “moral rights.” For example, from the Büchel (Mass MoCA) case, part of the law provides that the author of a “visual work” has the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.

Under VARA, authors of qualifying works have the right to prevent its destruction. Destruction of such works can lead to substantial liability. In 2008, Kent Twitchell (an American muralist) settled a case under VARA and California's Art Preservation Act (CAPA), in which he was awarded approximately $1,100,000 for the destruction (painting over) of his 70-foot-tall landmark mural of the iconic L.A. artist Ed Ruscha. However, even if all the VARA elements are met, courts may still deny relief to artists who have illegally placed their works on property. This was the case when artists illegally placed artwork in a community owned garden on city property. When the interior construction by the artists was identified as a “work for hire” so the artists did not own the copyright (Carter v. Helmsley- Spear). It was also the case with a temporary mural (Pollara case) attached to a chain link fence in Albany New York, regardless of the artists reputation and quality of the work, political appropriateness, or value of the message. But it was not the case when the artist and museum disputed whether the work was “finished” and if it could to be publically shown (Büchel).

Unpermitted work in violation of the law

Under VARA, artists who illegally paint the property of another are probably without a means of stopping the destruction, removal, or transfer of that particular manifestation. As a result public pressure rather than copyright law is probably the best means of protecting such work—if the work is truly special, of recognized stature, or widely appreciated by members of the community, then coordinated action from local citizens may be the only way to save it regardless of artistic merit. While there is a growing recognition of street art, illegally placed artwork is subject to the wishes of the landowner. Whether you agree or not, the legal reality balances the value of art against the value of property rights, and the result is unsurprising. Although it makes sense from a policy perspective, it has also led to the destruction of many important works of art. Copyright law applies to all artwork, legal or otherwise. “Legal” work can have the additional protection of VARA which might prevent certain important works from being lost, or altered, or even exploited improperly. Conversely, artists of commissioned work may be entitled to VARA protections even absent their ownership of the copyright.

Conclusion Copyright grants artists the right and ability to control the copying and distribution of their work. Murals painted with the approval or the property owner will enjoy this protection under VARA if it meets the necessary subjective conditions. If it’s protected under VARA and if the artist or their agent is attentive, if there is an attempt to alter or deface the work the artists has rights that can stop the artwork from being changed or even repaired without permission. But the artist must assert that right. The artist should be able to assign that right to someone, or an agency, to protect the work like the Mural Conservancy of Los Angeles. That solution hasn’t been tested in the courts, but certainly has been suggested in the cases.

With regard to unpermitted works, the rubbing out, painting-over and alteration by other artists, and the constant changing urban landscape drives street art forward. While such art can be commoditized, it is inherently impermanent. Perhaps today's mural and street artists owe thanks to the public reaction and the laws that constrain the medium because they force it to evolve.

Murals, Copyright & VARA February 11, 2012 RACC Mural Workshop, Portland OR Kohel Haver, 503-295-2787 kohel@artcop.com

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Selling your Artwork: You have rights.

By Kohel M. Haver, Attorney at Law

When you give your work to someone else to sell, or advertise to sell for you, you set up a legal relationship called a consignment. This is true for art galleries but also true for the corner coffee shop displaying your work to decorate its walls. When it works everybody wins. You get to sell your work and the galleries have some art on the wall, new and fresh work to sell. In my experience, when there is money involved it’s a good idea that everyone “is on the same page.” These sales arrangements work best is everyone has a clear understanding of the promises they make and what the law says about those transactions. First, here is the scorecard (who is who)

1. “Art dealer” means an individual, partnership, firm, association or corporation, other than a public auctioneer, that undertakes to sell a work of fine art created by another.

2. “Artist” means the creator of a work of fine art or, if the artist is deceased, the artist's personal representative, heirs or legatees.

3. “Gallery” means an art dealer who receives and accepts a work of fine art from an artist for the purpose of sale or exhibition, or both, to the public on a commission or fee or other basis of compensation.

4. “Consignment” means delivery of a work of fine art to an art dealer for the purpose of sale or exhibition, or both, to the public by the art dealer at other than a public auction.

5. “Artist” also means an artist or any person who delivers a work of fine art to an art dealer for the purpose of sale or exhibition, or both, to the public on a commission or fee or other basis of compensation.

What kind of work is covered? The Oregon Consignment law will cover the transaction if the consigned items are Fine Art which means it is an original work of visual art such as a painting, sculpture, drawing, mosaic or photograph; or a work of calligraphy; a work of original graphic art such as an etching, lithograph, offset print, silk screen or other work of similar nature; a craft work in materials including but not limited to clay, textile, fiber, wood, metal, plastic, glass or similar materials or work in mixed media such as a collage or any combination of the art media.

What is a consignment? Whenever an artist delivers a work of the artist's own creation to an art dealer in this state for the purpose of exhibition or sale, or both, on a commission, fee or other basis of compensation, the delivery to and acceptance thereof by the art dealer constitutes a consignment. When the work is delivered for consignment, the artwork is considered trust property in the hands of the art dealer, who is trustee for the benefit of the artist until the work of fine art is sold to a bona fide third party.

The proceeds of the sales are just as much yours as the artwork was. The proceeds of the sale of a work of fine art are also trust property in the hands of the art dealer who is trustee for the benefit of the artist until the amount due the artist from the sale is paid. This means that the Gallery does not own, but merely holds, the artwork for the artist and the same goes for the proceeds from the sale of the art. Both belong to the artist. This is true even if the gallery is buying the work itself. It's trust property until the artist is paid.

What does the term “trust property” mean? The gallery is considered to be the agent of the artist for the purpose of the exhibition or sale, or both, of the work of fine art within this state. The work of fine art, or the artist's portion of the proceeds from the sale of such work is subject to the claims of a creditor of the gallery. It also means that a gallery is liable for the loss of or damage to the work of fine art while it is in the gallery's possession where such loss or damage is caused by the failure of the gallery to use the highest degree of care.

If the art gets damaged who pays for it? If the artwork is damaged or destroyed, the value of the work of fine art is the value established in a written agreement between the artist and gallery prior to the loss or damage or, if no written agreement regarding the value of the work of fine art exists, the artist's portion of the fair market value of the work of fine art.

Removing the art from the gallery. Take the work out of the gallery after the show is finished because the gallery will not be held liable for the loss of, or damage to the work of fine art if the artist fails to remove the work within a period of 30 days following the date agreed upon for removal of the work. This agreement can be made in the written contract between the artist and the gallery or, if no written agreement regarding a removal date exists, 30 days after notice to remove the work of fine art is sent by registered mail or by certified mail with return receipt to the artist at the artist's last-known address.

The artist can know who bought the work. The artist is entitled to know the name and address of the purchaser. Upon written demand from the artist, the gallery shall furnish the artist with the name and address of the purchaser of the artist's work, and the date of purchase and the price paid for the work, for any sale totaling $100 or more. If the gallery refuses to furnish that information specified above, the artist shall be entitled to obtain an injunction prohibiting such conduct and in addition, receive money damages in an amount equal to three times the artist's portion of the retail value of the work.

What the artist should have in a contract between an Artist and Gallery. Artist and art dealer should execute a consignment contract, which includes consent to display, the artwork. An art dealer may accept a work of fine art, on a fee, commission or other compensation basis, on consignment from the artist who created the work of fine art only if prior to, or at the time of, acceptance the art dealer enters into a written contract with the artist establishing:

(a) The retail value of the work of fine art;

(b) The time within which the proceeds of the sale are to be paid to the artist, if the work of fine art is sold;

(c) The minimum price for the sale of the work of fine art; and

(d) The fee, commission or other compensation basis of the art dealer.

An art dealer who accepts a work of fine art on a fee, commission or other compensation basis on consignment from the artist may use or display the work of fine art or a photograph of the work of fine art or permit the use or display of work or photograph only if:

(a) The art dealer gives notice to users or viewers that the work of fine art is the work of the artist; and

(b) The artist gives prior written consent to the particular use or display. If display rights are a concern to you please address this issue in your agreement.

The proceeds of the sale. Payments of sale proceeds of consigned work due the artist are not subject to claims of dealer's creditors. The proceeds from a sale of a work of fine art on consignment shall be paid to the artist within 30 days of receipt by the gallery unless the artist expressly agrees otherwise in writing. If the sale of the work of fine art is on installment, the funds from the installment shall first be applied to pay any balance due the artist on the sale, unless the artist expressly agrees in writing that the proceeds on each installment shall be paid according to the percentage established by the consignment agreement. The artist's portion of funds received on the sale of the work of fine art or on installment shall not be subject to the claims of a creditor of the gallery.

You can't be tricked into signing away these rights. In Oregon a contract provision waiving protections for artist is void.

It's your money. It is unlawful for a gallery to willfully and knowingly secrete, withhold or appropriate a work of fine art or the proceeds from sale thereof for the gallery's own use or the use of any person other than the artist, except pursuant to a bona fide sale or as otherwise consistent with the terms of consignment. Violation can be a Class C felony.

Penalties for not following the law: An art dealer violating the consignment law can be liable to the artist for $100 plus actual damages, including incidental damages sustained as a result of the violation. And, if the art dealer violates, the artist's obligation for compensation to the art dealer is voidable by the artist.

You can recover your attorney fees if you need to file a lawsuit. In any action under any provision of the Oregon Consignment Law, the court may award reasonable attorney fees and costs to the prevailing party. To the ears of this lawyer, Oregon has a very strong consignment law. As an artist you do have a lot of power in these transactions.

In Conclusion: Good luck with your ventures and before you conclude the deal:

- get it in writing -

Remember the value of the confirming thank you note which restates your basic agreement.

By Kohel M Haver. March 14, 2006  © 2006 Kohel Haver, Law Office, Portland Oregon 503-295-2787

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Burning that Graduation CD … Legally

Myth: My teenage child asked me “Dad can I go to jail or how much trouble can I get in if I pass out a CD of our favorite songs of the year on the last day of school.”

Truth: My first thought was do not worry about it, how much trouble could she get in for making fifty CDs and passing them out to friends? But, as I gave this some thought and realized, as would any parent of a teenager today - that his child has the innate ability to copy and burn music CDs without giving any thought to the legal process involved or its implications – I became more circumspect. For in today's climate, when high school kids are being sued by the recording industry for sharing songs over the Internet, I thought I should look for a better answer, especially since its seems that it’s always the parents who end up footing the bill to resolve these cases of copyright infringement.

What my kid was looking for was the right to make a compilation CD containing copies of her favorite songs, songs recorded by different bands and released by different record companies on different CDs.

As I explained to my daughter, music is a complicated business. Because it can take a whole team to get music to your ear, there are all sorts of legal property interests involved in that simple prospective recording my daughter wants to make. And not having the financial muscle of a record company such as Rhino or Rykodisc, who make a living putting out compilation albums, this could be difficult.

To answer my daughter’s question, and find a means for her to make her CD, two basic questions must be addressed. Who owns the recorded performance (think “the studio master recording”) and who owns the underlying song (think “composer” or “music publisher”). Permission (known as a license in legal parlance) must be obtained from each of these owners for my daughter to make her CD.

The first question - who owns the performance - can be very simple or very complex, depending on any number of factors. For example, there could be a band (which in turn could have several independent parties involved “think John, Paul, George and Ringo” think drums, bass, lead and rhythm guitar). The musicians get together and play and if a recording is made, there might be an engineer who helped make it. If these parties have no agreement, each of them would own part of the copyright to the master recording and could give my daughter a right to use the master recording and distribute copies made from it. However, this is usually not the case as typically a record company is involved. The record company might have limited rights to the master recording – in which case my daughter might have to contact the performers to obtain use of the master recording. The record company might have all rights to the master recording - in which case my daughter could call the record company and beg for permission to use to make her CD. The cost associated with obtaining this right is negotiable and you may or may not be able to obtain it, depending on policy and in part on whether the record company is a major record label, or a independent artist owned one (remember, I mentioned that it would be good to have the financial muscle, and track record, of Rhino or Rykodisc, which are in the business of making compilation albums). Multiply this task by having to deal with ten separate record companies and you see the problem.

The second question – who owns the underlying song – and how to obtain permission to use it is easier to deal with because it is regulated by copyright law. Under the compulsory mechanical licensing provisions of the U.S. Copyright Act, once a song is recorded and commercially released, any other party can use it on their recording, provided, among other things, that the party wishing to use the song provides notice to the owner of the song and pays a compulsory royalty, at a set rate, to use the song. When this is done properly, the user of the song is automatically granted a mechanical license and can use the recorded song on his or her CD. Today, without following the somewhat cumbersome procedures set forth in the copyright act, my daughter can easily obtain a mechanical license to use the song on her CD. Here is how it is done. There is a company called Harry Fox and they are in the business of selling mechanical licenses and represent almost all of songwriters in the universe. Harry Fox has a minimum fee for up making a minimum of 500 copies and the current fee is 8.5 cents for a song 5 minutes or less. It's a little more for longer songs. They take credit cards and you do it all on line.
However, if you want to make fewer than 500 copies, say 100 copies, she could save a few dollars by using the more cumbersome compulsory license provisions of the Copyright Act and paying only for the actual number of copies made and distributed.

What that means is that, after I have obtained the rights from the applicable record company, for an additional $42.50 I can buy the license (permission) to make up to 500 copies of Armstrong's cover of “What a Wonderful World.” More songs can be added to your CD at that same license fee. In this computer age, the license is returned by email within two days.

Thus for $425, plus the unknown costs to the various record companies for your daughter’s use of their master recordings, you get to show your kids the right way to make music CDs and pass them around (up to 500 times), or you show them why they can not, and should not, make the CDs in the first place if they can’t pony up the money and time to make it happen correctly.

One more thing -- I wish the Recording industry, and Congress, would find a simpler, less expensive, and less time consuming way, for my daughter to make her CDs legally so I could teach her a valuable lesson about respect for the law and respect for the music and musicians that she enjoys. It would seem that they are giving her a lesson about why she should burn those 500 illegal CDs. I hope she won’t follow it. (Thanks to Jay Schornstein for his input on this article.)

©2004 Kohel Haver

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