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A VARA Problem

By William Patry

Professor Oren Bracha, a wonderful Israeli scholar at the University of Texas, whom I have blogged about before, wrote to me recently, questioning something I had written about the Visual Artists Rights Act. Here is what he said, in part:

Your treatise states that [the rights of ] attribution and integrity under 106A do[] not extend to cases of reproduction. Other commentators too seem to take this view. This is surely the case in regard to ?reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of ?work of visual art?? because sec. 106A(c)(3) explicitly says so. But what about reproductions that don?t fall within this category?

For example: I buy a painting X (which falls within the definition of a work of visual art) and reproduce by hand a painting which is a mutilated version of the original. What in sec. 106A excludes an integrity violation in such a scenario? Is there anything in the text history or structure of this section that mandates this conclusion?

Here is what I have written about it (§16:10 of my treatise, footnotes omitted):

VARA's restriction to limited editions or castings of 200 or fewer copies underscores the philosophical basis of the Act. VARA's principal goal is to preserve the physical integrity of the physical embodiment of works of visual art, both as an expression of the creativity of the artist and to ensure that culture is passed on to future generations intact. As a consequence, VARA does not protect distortion to, mutilation, modification, or destruction of reproductions of a work of visual art, nor does it permit the artist to disassociate his or her name from distortions, mutilations, or modifications of reproductions. The exclusion of ?reproductions? is seen not only in the definition of ?work of visual art,? but also in section 106A(c)(3).

?Limited Edition?

The concept of an ?original? copy is blurred in VARA since, as noted, the Act considers limited editions of 200 or fewer to all be ?originals. The term ?limited edition? is not defined because it was believed to be a ?familiar concept in the artistic community.? Instead, the House Judiciary Committee report states that the term is to be viewed ?as opposed to reproductions ? [and is] comprised of multiple originals of the same work. ?

Here is what the House Judiciary Committee I referred to says:

H.R. Rep. No. 514, 101st Cong., 2d Sess. 12 (1990):

[T]he bill covers only single copies and limited editions of 200 or fewer. The latter is a familiar concept in the artistic community. Limited editions, as opposed to reproductions, are comprised of multiple originals of the same work and are thus deserving of special protection.

The point the report and I make is that the subject matter protected, works of visual art, excludes reproductions because the protected subject matter is limited to 200 or fewer singed originals. Obviously, this includes copies struck off a master copy, so that ?originals? 2 through 200 would in ordinary copyright parlance be called reproductions, but not in VARA parlance, a parlance that is rooted in the understanding of the terms in the artistic community. I see nothing wrong with rooting the understanding of key terms in the meaning given by those whom the statute seeks to regulate.

The real problem is the terrible drafting of the statute. The definition of work of visual art starts out clearly enough in section 101:

A ?work of visual art? is --
(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

But then, in wholly unnecessary, bombastic, and redundant language, drafted by and added at the insistence of large corporate copyright owners and their trade associations (you know, the ones that love artists and their creativity so much), the statute then declares what is not a work of visual art:

A work of visual art does not include ?

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title

One could merely wince at such inanities, but for this language, highlighted by Professor Bracha in the following exclusion from the grant of rights in Section 106A(3):

(3) The rights described in paragraphs (1) and (2) of subsection (a) shall not apply to any reproduction, depiction, portrayal, or other use of a work in, upon, or in any connection with any item described in subparagraph (A) or (B) of the definition of ?work of visual art? in section 101, and any such reproduction, depiction, portrayal, or other use of a work is not a destruction, distortion, mutilation, or other modification described in paragraph (3) of subsection (a).

What troubles Professor Bracha I think is a reverse implication: since section 106A(3) states that spindling, fondling, and mutilating reproductions of non-works of visual art does not violate VARA, this must mean that spindling, fondling, and mutilating reproductions of works of visual art does violate VARA. I appreciate his unwillingness to see Section 106A(3) as nonsense, but that is what it is, and it is coupled to the second, exclusionary part of the definition of work of visual art as a real ?dopio.?

In Professor Bracha?s example of someone who buys (assume a protected work of visual art) and then paints by hand a new work that represents a ?mutilation? of the protected work, there is no violation of VARA, but there would be a violation of the right to prepare derivative works under Section 106, assuming the artist had not transferred his or her economic rights. If the artist had transferred those rights, he or she is simply out of luck.

Why one might ask as a policy matter shouldn?t mutilations of reproductions also be covered by VARA as they are in some state statutes like New York; after all, don?t mutilated reproductions injure the artist?s feelings just as much as mutilating limited edition copy No. 200? Yes, I think they do, but VARA is really an art preservation statute in its heart, and not a real moral rights statute (how many moral rights statutes have marking and signing requirements ? a clear violation of Berne?).

Professor Bracha would like to know if my views above are cracked, and so would I.

Full post as published by The Patry Copyright Blog on April 14, 2008 (boomark / email).