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VARA and the Rights and Responsibilities of Oregon Artists and Galleries

Checking in at LinkedIn the other day, we found an interesting discussion with information to clarify the rights and responsibilities of galleries to artists and vice versa. An artist presented this question:

I recently requested my former gallery give me the list of clients who’ve purchased my work. While the owner said he will comply with the law, he understood the law to be that he simply has to tell me the name and the city that the person is from. I told him I would be back to him with the specifics of the law. can anyone tell me the name, or legal code the law if known by, as well as the specifics of the law?

Also, how does the artist know that the gallery doesn’t just give him the names of the gallery owner cousins and friends in an effort to keep the artist from bothering them for real names?

In the comments, we were fortunate to find the laws that define these rights and responsibilities in the state of Oregon:

359.210 Effect of treating art work delivery as consignment; name of purchaser to be supplied on demand; remedy. (1) A consignment of a work of fine art has the following effect:
(a) The consignee, after the delivery of fine art, is the agent of the consignor for the purpose of the exhibition or sale, or both, of the work of fine art within this state.
(b) The work of fine art, or the consignor’s portion of the proceeds from the sale of the work, is not subject to the claims of a creditor of the consignee.
(c) A consignee is liable for the loss of or damage to the work of fine art while it is in the consignee’s possession if the loss or damage is caused by the failure of the consignee to use the highest degree of care. For the purpose of this subsection, the value of the work of fine art is the value established in a written agreement between the consignor and consignee prior to the loss or damage or, if no written agreement regarding the value of the work of fine art exists, the consignor’s portion of the fair market value of the work of fine art.
(d) The consignee may not be held liable for the loss of or damage to the work of fine art if the consignor fails to remove the work within a period of 30 days following the date agreed upon for removal of the work in the written contract between the consignor and the consignee or, if no written agreement regarding a removal date exists, 30 days after notice to remove the work of fine art is sent by registered mail or by certified mail with return receipt to the consignor at the consignor’s last-known address.
(2) Upon written demand from the consignor, the consignee shall furnish the consignor with the name and address of the purchaser of the consignor’s work, and the date of purchase and the price paid for the work, for any sale totaling $100 or more.
(3) The consignee’s failure to furnish the information specified under subsection (2) of this section entitles the consignor to obtain an injunction ordering the disclosure of the information and money damages in an amount equal to three times the consignor’s portion of the retail value of the work. [1981 c.410 §3; 1985 c.830 §3; 1991 c.249 §28; 2011 c.230 §2]

 

We also found a deep excerpt of the terms of VARA, the Visual Artists Rights Act, at the GYST website:

This information is located in GYST’s software for artists. Some references within the text will be software related. There is a link to the complete law at the bottom of the text.

Information about the Visual Artists Rights Act or VARA

All artists, collectors, and art dealers should be aware of the laws protecting certain rights of the artist and their artworks. These rights extend beyond copyright laws, and apply to the artist even if the artist is not the copyright holder.

On October 27, 1990, Congress passed the Visual Artists Rights Act and included it the Copyright Act of 1776 as Section 106A. VARA generally provides for the rights of attribution and for protection of the physical integrity of certain works of art. This means that the artist has the right to be recognized and listed as the author of their work and that his or her name cannot be used or listed as the author of any work he or she did not create. VARA also allows the artist to have his or her name removed from a work he or she created in the event that the work is distorted or otherwise changed as indicated when the process of doing so would be harmful to the artist’s honor and reputation.

There are some limitations to VARA in the definitions set forth in the copyright law. The impact of the exclusions stated below are significant since VARA provides that the inclusion of a work of visual art in any of the kinds of uses set forth in (A) is not deemed a “destruction, distortion, mutilation, or other modification” of that work of visual art and thus an artist cannot use VARA to prevent such use. Further, any work that is done by the artist as a work made for hire is also not covered by VARA.

Specifically, the Act specified a definition of a “work of visual art” which states that these moral rights apply only to
(1) a painting, drawing, print or sculpture, existing in a singly 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 casts, carved, or fabricated, sculptures of two hundred 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.

Moreover, section 106A is titled “Rights of certain authors to attribution and integrity” and specifically recognizes that authors of a work of visual art:
(1) shall have the right-
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation;

This allows the artist to have his or her name removed from a work he or she created in the event that the work is distorted or otherwise changed as indicated when the process of doing so would be harmful to the artist’s honor and reputation.

(3) subject to the limitations set forth in section 113(d), the artist 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.

The above sections allow an artist to prevent the indicated acts provided that those acts harm the artist’s honor or reputation. Subsection (B) above however, is limited to works of “recognized stature.” However, the statute later says that modification of a work of visual art that results from the mere passage of time or the “inherent nature of the materials” is not subject to the above provisions, nor is any modification that results from the conservation of the work nor which arises as a result of the public presentation of the work unless such acts are the result of “gross negligence.”

The rights of the artist as to works created on or after the effective date of VARA exist until the end of the calendar year in which the artist dies. However, as to those works created prior to the said effective date but as to which the title has not passed from the artist prior to that date, the rights last for the duration of the rights of copyright (read “When Do Copyrights Expire?”) As to works created by joint authors, the rights expire at the end of the calendar year of the death of the last surviving artist.

Further, the rights granted to artists cannot be transferred to another party since they are granted only to the artist and the transfer of title to the actual work of visual art does not operate as a transfer or waiver of any of these rights unless there is an express, written waiver by the artist. Conversely, the waiver of any of these rights does not operate as a transfer of title to the underlying work nor to any rights of copyright in the underlying work unless the artist expressly agrees in writing.

In summary, when rights are granted to one segment of society, in this case artists, it means that restrictions are placed on another segment such as the owners of works of art. This is true under the laws of copyright, trademark, and other rights such as laws that do not deal with intellectual property issues.

The rights embodied in VARA (and indeed broader rights than those) have been recognized within the European Union for many years. The motivation for passage of VARA may have been to bring the United States more in line with the EU in that regard but even on a more commercial level, protecting the creative process and creators. Today, intellectual property is our means of production, and drives our economics.

Information for this article has been taken from various Web sites and publications and includes the US copyright Web site, the Visual Artist Rights Act text, and the National Endowment for the Arts.

Read the full text of VARA:
http://www.law.cornell.edu/uscode/17/usc_sec_17_00000106—A000-.html

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