THE AMERICAN ARTIST IS A SECOND CLASS CITIZEN
By Charles J. Hecht


Prior to 1990, many countries joined the Berne Convention, which provided broad protections to artists. In 1990 United States adopted the Visual Artists Rights Act ("VARA"), which only adopts certain provisions of the Berne Convention. There are a number of adverse consequences to the American artist.

One of the most important differences is that there are a number of exclusions to what is a " work of visual art" under VARA: (i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audio visual work, book, magazine, newspaper, periodical database, electronic information service, electronic publication or similar publication;(ii) any... advertising, promotional, descriptive... material, (iii) any work for hire; or (iv) any work not subject to copyright protection under the Copyright Act.

Pollara v. Seymours, 344 F.3d 265 2d Cir. (2003) illustrates one way in which an American artist has less rights than artists in other countries who are full participants in the Berne Convention. In that case, Pollara painted a banner for a nonprofit group that provided legal services to the poor. The banner was to be used as a backdrop for a table to solicit contributions for this cause. Because there was no valid permit, the banner was taken down and destroyed. The artist sued for the destruction of his banner and lost.

Initially, the court noted that it should use common sense and generally accepted standards of the artistic community to determine whether a particular work is to be deemed "a work of visual art." The work's medium or material is irrelevant. The courts are required to focus upon the works objective and evident purpose rather that its artistic content. As a result, VARA does not protect advertising, promotion, or utilitarian works. It also does not protect works for hire, regardless of their artistic merit, medium or value to the artist or the marketplace. For example, the sculpture that looks like a park bench may be protected, but a park bench done by a sculptor would not be protected. Drawings and paintings are protected, but only if they do not advertise or promote. Since Mr. Pollara's banner was created for the purpose of drawing attention to the information desk of an organization devoted to providing legal services to the poor, his banner was not entitled to the legal protections of VARA.

The implications of this decision demonstrate how an American artist is unfairly prejudiced. For example, suppose Barnett Newman did a painting promoting the Olympic Games for New York City. Another example is Chuck Close accepting a commission to do a painting to promote the public's awareness of AIDS. Suppose Louise Nevelson was commissioned to do a sculpture promoting breast cancer awareness. Also, what may be promotional material at the time it was created could become a work of art with the passage of time, but that could never be the case under this interpretation of VARA.

NY Arts Magazine, September/October Issue, 2004
http://www.nyartsmagazine.com/articles.php?aid=441


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