From Art Law Journal:
When a buyer or collector purchases an original work of art, they would likely assume that, as the new owner, they have the right to do anything they want with it. They can destroy it, throw it in the garbage, rip it apart and use the pieces to create a unique mixed media or appropriation piece, or burn it as a piece of performance art. What about a building covered in street art? Can the building owner demolish it to build a new structure? Under the Visual Artist’s Rights Act (VARA), artists have protections that limit the ability for owners of a physical artwork to alter or destroy it under certain conditions. Let’s take a look at those conditions.
. . . .
Take these scenarios from an article by Cynthia Esworthy’s, A Guide to the Visual Arts Rights Act:
- You are a sculptor. On commission, you create a bronze frieze for a city park. A year later, you discover that the center of the frieze has been covered by a copy of the city seal. Can you force the city to remove the seal?
- You are a well-known painter. You discover that a company that has purchased one of your works is advertising one-inch square portions of it so that buyers can “own an original painting” by you. Can you stop them?
- You are an airport. You commission a giant mobile, specifically designed for the interior of your central terminal. You would like to relocate the mobile to the exterior front entrance of the terminal, which will require weatherproofing, removal of the motor and rendering the mobile stationery, and repainting it to match the color scheme. Can the artist prevent the move or modifications?
- You are a photographer. You discover that a limited-edition triptych you created and sold has been separated into three pieces for resale. Can you require that the art is sold as a whole?
- You are a county arts agency. You commission a mural to be placed on a county building. You later discover that state law requires you to build a handicapped access ramp blocking the lower part of the mural. Can you paint over the lower part of the mural?
. . . .
In 1990, Congress tried to answer these questions with the implementation of Visual Arts Rights Act (VARA). It was the first attempt to grant protection to an artist’s physical work (also known as moral rights). Many countries had already granted these rights, enshrined in the Berne Convention for the Protection of Literary and Artistic Works, the International copyright treaty.
The philosophical underpinning of moral rights is that artists put their spirit and personality into their work and therefore, the works should be protected from change or destruction. As a signatory, the U.S. had to comply with those rules but needed its own legislation to make it law. So, it passed VARA, which among other things, allowed artists to prevent their work from being altered, distorted, or mutilated.
However, these rights are limited to only fine art, specifically, paintings, sculptures, drawings, prints, or still photographs that are produced for exhibition and are only single copies or limited editions of less than 200. Additionally, the work must be considered “a work of recognized stature.”
. . . .
Chapman Kelley
The first major VARA case came in 1984. Chapman Kelley, a recognized landscape painter, created what he called “living art,” in a Chicago Park. Kelley was a painter by trade. Wildflower Works was designed to be a living version of a Kelley painting, consisting of two ellipticals, each the size of a football field. The work is framed by gravel paths and 60 varieties of native white flowers at the outer edges and more intensely colored flowers toward the center. The plan as for the display to flower “sequentially” from spring to fall and designed to thrive without watering, fertilizer, or insecticides.
. . . .
With the permission of the Chicago Park District, Kelley personally financed the project and maintained it with the help of volunteers.
On the 20th anniversary of the installation, the Park District announced that it wanted to build a new structure at the location and asked Kelley to reconfigure the flowerbeds. Kelley refused to approve the change but the Park District did it anyway. More than half of the 68,000-square-foot garden was removed and the shape of what remained was radically changed. The twin ovals were cut down to rectangles, fenced in by incongruous hedges, and surrounded by high-maintenance lawn and masses of rose bushes.
Kelley sued to have the site returned to its original state as part of his moral right to not have his worked altered. Surprisingly, the Court concluded that Mr. Kelley’s work was not a work of art, stating:
“Simply put, gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable . . . The result is that a work of art made from living material is automatically disqualified because the use of living materials comes from nature and because it has the potential for change.”
This was a major setback for VARA and resulted in a few major cases being brought to the court. Given the result, many plaintiffs were wary of spending the money on a case that didn’t have a high level of confidence in winning
Link to the rest at Art Law Journal
Of course you can. You can either a) not sell your artwork, or b) license instead of selling your artwork. Good luck getting as much or more money for selling a license instead of the actual art piece, and good luck getting any money by not selling at all.
Hmm. How about a “poem”, something particularly aggravating and inciteful, (no, that is not a typo, I do not mean insightful).
Post the thing to any of a dozen “free” repositories for such things. Maybe Twitter. Make sure that it is on that site exclusively, so you can claim it’s in some way unique and therefore protected.
Then sue them when they pull it down, as it’s “art”. Sorry, “Art”.
Personally, in my opinion, once you sell a thing, you lose all rights to that thing, regardless of what the law says. (I should clarify that, in this case, I feel the law creates a privilege for the artist, rather than a right, and a privilege that is at odds with the owners natural property rights.) I agree with the top-most commenter: If you want restrictions on how the piece may be used in the future, spell them out in the sales contract. And don’t come around in a decade, and demand more, because the buyer’s innovation on how to use your work, an innovation that neither of you had dreamt up or seriously considered a decade earlier, has now netted the innovative owner a second profit on your work.
Frankly, this whole mess strikes me as absurd as the common cry of “Freedom of Speech” when a message is silenced by a venue, where the venue is private, and not government maintained or contracted.
If a producer is so special that his product has to be preserved and protected because of his spirit and personality, then lease it. Don’t sell it. That allows future generations to benefit from his spirit and personality.
Imagining a great painting or sculpture being burned or crushed or thrown to the bottom of the sea really distresses me. What a horrible thing to have happen!
But it also bothers me that the rightful owner of a physical artwork can be told what he can and cannot do with it. That seems wrong.
My initial reaction is, No.
If you want to ensure its survival, don’t sell it.
Alternatively, though indisputably more risky: make the agreement of sale a contract where destruction, etc., of the sold piece subjects the purchaser to a heinous fee (of some sort) in retribution.
ETA: ‘Tis of course, solely my opinion. Your opinion, like your mileage, may well differ.