United States: New VARA Ruling Muddies Analysis On Moral Rights And Significance Of "Site Specific" Art

Last Updated: November 12 2015
Article by Nicholas M. O'Donnell

A recent injunction ruling that prohibited the destruction of the "Bicentennial Freedom Mural" in Corona, California had occasion to consider the rights asserted by the plaintiffs and artists under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. § 106A.  The order ultimately granted the injunction but on different grounds, holding that the plaintiffs were unlikely to prevail on their VARA claim.

(from Library of Congress Prints and Photographs Division)

The eventual conclusion that these plaintiffs were unlikely to succeed on the merits of their VARA claim looks right from here.  But the path the opinion took to get there is a bit disheartening, primarily because VARA rulings are so few and far between that each one offers an important chance for interpretive guidance.  This opinion does not do that.  Skipping over entirely the question of who the artist was is the first problem.  Then, applying VARA analysis to a work from 16 years before the statute's enactment without considering the requirements for retroactivity is puzzling, to say the least.  Third, elevating "site specific" almost to the level of a statutory element is simply incorrect.  Ultimately this opinion took what could and should have been a simple question—does this pre-VARA work qualify for VARA protection—and turned it into a complicated answer that offers prospective guidance that is confusing at best and just wrong at worst.  And, because the plaintiff obtained an injunction anyway, this portion of the ruling is unlikely to get any attention on appeal.

Plaintiffs Ronald Kammeyer and the Mural Conservancy of Los Angeles filed suit this year in the U.S. District Court for the Central District of California in Los Angeles.  Plaintiffs sought an injunction, which the parties initially briefed.  Kammeyer is a landscape architect who co-designed the mural when he was in high school.  The mural was painted by high school volunteers on the spillway of the Prado Dam in Corona, and is visible from the California Route 91 freeway.  The dam is part of a federal flood-risk management project known as the Santa Ana River Mainstem Project (SARM), on federal land controlled by the United States Army Corps of Engineers.  The Army Corps of Engineers' initial review concluded in 2014 that lead paint in the mural justified either encapsulation or removal.  Leadership ultimately decided to remove it.

After some procedural housekeeping, the eventual Second Amended Complaint asserted various claims, under (1) VARA, (2) the National Historic Preservation Act, 54 U.S.C. § 306108, (NHPA) pursuant to the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (APA), and (3) intentional desecration of fine art pursuant to Cal. Civ. Code §§ 987 and 989.  We will focus on the VARA analysis here, though the plaintiff ultimately obtained an injunction for alleged failures to follow the requirements of the NHPA (The NHPA claim argued that the Army Corps of Engineers had violated § 706(2)(A) of the APA, which allows challenges and "set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."  Specifically, the plaintiffs argued that the Army Corps of Engineers failed to document a finding that there were no historic sites present.).

The VARA claim asserted rights of integrity under 17 U.S.C. § 106A(a)(3)(A)-(B), which state:

(3) subject to the limitations set forth in section 113(d), shall have the right—
(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.

Specifically, the Second Amended Complaint asserted that Kammeyer was the artist and that destruction would either injure his reputation or that the mural was a "work of recognized stature," or both.

To obtain an injunction, a plaintiff must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest."  Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

The Court held first that the government's argument that the fact that the APA does not allow claims for copyright infringement against the United States did not dispose of the claims, because VARA claims, while codified in the Copyright Act, are not infringement claims.  The VARA claim analysis itself focused on the likelihood of success.  This is where the decision first starts to go off the rails.  The Court pronounced:

If the Court were to accept Plaintiffs' interpretation of VARA, Kammeyer would have the lifetime right to keep the Mural on the spillway, regardless of safety, environmental, or other important public policy concerns.  Congress could not have intended this "lifelong-veto" when enacting VARA.
The First Circuit addressed this issue by concluding that VARA does not protect "site-specific" art. Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 134 (1st Cir. 2006).

There are a number of clear errors in this passage.  First, the Court accepted (and perhaps the government failed even to understand to challenge) that the plaintiffs have any VARA rights at all.  They almost certainly do not.  VARA rights exist from the date of creation and for the life of the author.  They cannot be assigned or inherited.  That standard applies, as with most laws, to anything created after the effective date of the statute.  But what about earlier works?  The Supreme Court has long held that statutes do not have retroactive effect unless they say so explicitly.  VARA does, but in an usual way:

With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.

The mural predates the effective date of VARA, obviously.  So the plaintiffs—if they are the "Author"—could only assert VARA rights if they had not transferred title to the physical work (not the copyright, which one or more of them undoubtedly still holds).  But none of the plaintiffs claimed to own the mural, either when it was painted or now.  Someone, possibly Kammeyer alone, possibly Kammeyer jointly with the volunteers who helped him, owns the copyright.  That will endure either alone or as joint work, under the term of copyright.  But could any of them claim to have owned title to the physical work in 1976?  On a federally-owned flood management dam?  It seems a stretch.

The opinion misses this threshold question entirely.  Second, VARA is absolutely a "lifelong" veto when it applies.  That is exactly what it is supposed to endow on the artist.

In addition, its citation to Phillips also misses the mark.  As noted above, "site specific" is not part of VARA.  The relevant passage in Phillips reads:

Essentially, for site-specific art, the location of the work is an integral element of the work. Because the location of the work contributes to its meaning, site-specific art is destroyed if it is moved from its original site.

That holding means only what it says, and relates to the sculpture at issue in that case.  As copyright scholar Pippa Loengard, Deputy Director, Kernochan Center for Law, Media and the Arts at Columbia Law School expressed it to me, "site-specific means the work integrates the site into it, not just that it's on a 'site' or that the work reflects its surroundings."  She's exactly right; I couldn't say it any better.  All sculptural works outside are on a site.  VARA doesn't apply to none of them, which is what this opinion's extension of Phillips would mean.

Having established this misapprehension of VARA as a basis to rule against the plaintiffs, the District Court's nonetheless found still another reason to conclude that plaintiffs were unlikely to succeed on the merits of their claim: 17 U.S.C. § 113(d), which states that when:

(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and
(B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.

In other words, if removing an installed artwork from a building where it was installed with consent would destroy the work itself, then no VARA rights attach.  Even if the mural could be removed without destroying it (which it almost certainly could, as anyone who has seen frescos in a museum knows), the Court ruled that § 113(d)(2) puts a 90-day limit on objecting to removal after receiving written notice of the planned removal, which had passed.  Yet it is far from clear that the dam is a "building" at all and that this 90-day deadline even applies.

As noted at the top, the plaintiffs' success in obtaining an injunction means that the VARA analysis is unlikely to get appellate review in the short term, if ever.  This case, and VARA, could use it.

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Nicholas M. O'Donnell
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