Best defense: Artists have federal law behind them

Note to vandals: The next time you think about destroying a piece of art, consider that, in addition to criminal charges, you could be facing a lawsuit from the artist– even if the artist no longer owns the piece.

Artists' right to protect their works is conferred by the Visual Artists Rights Act, passed by Congress in 1990. But, strangely, says UVA law professor and intellectual property expert Tom Nachbar, the point of the Act was not primarily to protect artists from vandals but from those who purchase the artwork.

The Act gained notoriety in the mid-'90s with the Carter v. Helmsley-Spear case, in which three artists filed suit to prevent the new owners of a building from dismantling a work adorning the lobby. The artists had contracted with the building's previous management to create a sculpture, and the result was a mosaic covering parts of the walls and floor, with sculptural elements adorning the floor and ceiling.

When the building's management changed, the artists were informed that the sculptural parts of their work would be removed.

They sued under the Act and emerged victorious: In 1994, a U.S. District Court ruled that the work could not be "distorted, mutilated, or moderated."

But the Act doesn't protect artists in every circumstance. Prominent Boston artist David Phillips was hired by investment megalith Fidelity to create a sculpture garden for an outdoor area at one of the firm's Massachusetts offices. He did so, but upon completion of the project, Fidelity wanted to make a few changes– moving one of the sculptures and redirecting a walkway.

No way, responded Phillips, who filed suit against Fidelity under VARA and the Massachusetts Art Preservation Act. A judge threw the federal case out, saying VARA doesn't protect site-specific work. But the broader Massachusetts Art Preservation Act allowed for Phillips' victory in late October of this year. The sculpture will stay.

UVA's Nachbar, quoted in a November 3 Newsweek article on the case, says if the judge had ruled that VARA protected the work, it would have set a disturbing precedent, essentially giving artists control over private homes and businesses.

And he says that owners of artwork even if that work is by a world renowned artist probably don't have to worry too much about how they display the works, or if they'd rather tuck them in a closet for a few years.

In order to qualify for VARA protection, an artist must prove, through the use of expert witnesses, that his or her work is of "recognized stature," and that the destruction or mutilation of that work would be damaging to the artists' carefully built reputation.

Even so, not all works by well-known artists are protected. Works with more than 200 copies are exempted from federal protection, so– should the urge strike– you can freely smash your Thomas Kinkade painting, since it may have over 100,000 "limited edition" clones.

For the lesser known artist, the Act also has limited applicability. Sculptor Aaron Fein, whose work "Transformer" was vandalized in December 2001, says he didn't know about the Visual Artists Rights Act when his piece was destroyed.

But even if he had (and if the vandals had been caught), he says he most likely wouldn't have undertaken the considerable expense of pursuing such a civil case.

The next local artist whose work is damaged, however, may not be so gracious.

Vandals, take note.

Aaron Fein's "Transformer" was destroyed by vandals in 2001.
Courtesy ArtInPlace