The Visual Artists Rights Act (VARA) of 1991 has been in place now for more than twenty years, protecting the moral rights of artists; allowing them rights of attribution, disassociation and protection of the artists honor and reputation (Yampolsky, Goldstein ed. 2005.) As time moves on artists and arts administrators, as well as city planners, and designers need to consider what is to become of public art as the need for altering because of the changing shape of cities may arise in the near future. The more time passes the more likely it will be that issues like this arise. Copyright has been put in place to allow the artist or author to benefit from their product and can be passed from author to another party. Art work put into the public view becomes part of the landscape and an artist’s copyright may be infringed upon accidentally, or in some cases on purpose. At other times public art may considered acceptable for fair use depending on its placement, how it is classified and use can be permitted in different forms. The aim of this paper is to examine some of the nuances of both VARA and copyright protection as it relates to public art, specifically murals and street art. The issues now developing are the aging of public work that is protected under VARA and whether or not street art can and should be protected under both VARA and the American copyright law. The largest challenge to these issues is that there are valid arguments for every side of the positions. Right now is the correct time to collect data and information regarding all of these issues and decide upon legal structures that protect the public’s interest in public art as well as adequately protect the moral and copyrights of artists who put their work in the public sphere.
Public murals enrich the lives of people who occupy the community and serve as a safe and valuable outlet of creative expressions by artists. Several cities across the United States, either now or at one time have taken an active role in commissioning this work and private individuals have done the same. Often these two sources of sponsorship work hand in hand, each encouraging the other. Of particular note is the City of Los Angeles which has seen proliferations of public paintings, a moratorium on public art work, and just recently encouragement of public work again (Baca 2013, KABC 2013.) Interviews with artists across the city all appreciate the title of Mural Capital of America and organizations such as UGLAR, The Freewalls Project, and the Mural Conservancy of Los Angeles have taken it upon themselves to encourage new murals and protect existing ones. Seattle is another American city which has taken a very proactive approach to public art, setting aside one percent of its budget for the creation of public art (Seattle 2013.) Many professionals in the arts have praised Seattle for its efforts of commissioning and also taking upon the necessary action to preserve public art. Both of these cities can be looked to for physical, practical, and philosophical understanding about the function of art in the public. As art work created after VARA was enacted is now aging and cities are always in a constant state of evolution these cities provide examples of the pitfalls and triumphs in this field.
Street art has gained more attention and ultimately acceptance as a legitimate art form by the visual arts community. In most middle to large sized cities some extent of street art can be found. The following quote by noted street artist Blek le Rat illustrates the importance and relevance of street art: “. . . in galleries they (artists) are seen by forty people, in museums by ten people, but in the streets they’re seen by 100,000 people. And that’s the integrity of an artist’s work: to be seen. Not to be sold or to be recognized in a museum - but to be seen by the world.” (Waclaweck 2011.) As artists who either began as or remain street artists and artists exhibiting in museums and galleries we are faced with the problem of ownership and VARA protection when an artist or his or her work becomes one of stature.
This paper is organized into three parts. First, the examination of the intellectual and legal conditions surrounding public art and VARA protection. Second, a look at several cases where the conundrums and challenges of these issues are highlighted. Finally, analyzation of of the legal issues and cases to illustrate the need to have a more coordinated effort by artists, art professionals, city planner, and designers. This paper will not discuss the legality issues of street art nor justify, defend or condemn it.
Intellectual and Legal Review
As mentioned above VARA was enacted in the United States 1 June 1991 and gives the artists rights of attribution, disassociation and protection to honor and reputation (Davidson, Goldstein ed. 2005.) However, these rights come with some conditions when the art is placed in the public realm. It is generally understood that deterioration and alteration could harm the artist's reputation, however, natural weathering is not protected under VARA when work is of a public nature (Davidson, Goldstein ed. 2005.) Owners of public art can be faced with issues of wishing to preserve the work by moving it to a safer location, however, that safer location may involve alteration of the work. The artist must give approval before that alteration can take place but must respond within ninety days of written notice of the prospective plan. If no response is made within that time frame, then the owner of the work has free reign to do as he wishes (Yamplosky, Goldstein ed. 2005.) The cost of maintaining a public painting can also be difficult for an owner and an individual or a municipality may be faced with the need to remove the work altogether or allow it fall into disrepair or destruction. What does the owner do when the artist refuses to allow removal or destruction but the owner cannot afford to neither move nor preserve the work? (Yamposky, Goldstein ed. 2005.) The owner may consider deaccessioning the work but the legal proceedings will take up sufficient amounts of time and energy on all sides (Kendellen and Krueger, Goldstein ed. 2005.) The solution to this seems to be that from the outset agreements must be made and documented between the artist and the commissioning agency about how to proceed should the site change, the work becomes damaged beyond repair or needs to be changed in a way that facilitates safety and design. This needs to be done before execution of the work even begins (Yamplosky, Goldstein ed. 2005.) The owner of the work would also be wise to keep a record of the documentation of the proposal and prospectus of the work (if there is one), a written artist's statement, and press attention either the work gets or the artist gets about or after the execution of the work. This way should the need to alter or move the work, there are more opportunities to do so in a way that is satisfying to both the artist and the owner (Favero, Goldstein ed. 2005.)
Image ownership of any public work can be a problem as well. A painting on the side of a building that is used as a backdrop for television, film, and photography and if that work is used in a commercial sense, then permission form the artist must also be given (Hayton, Goldstein ed. 2005.) Most murals commissioned by municipalities qualify the mural as integrated into the architecture which makes it unable to receive copyright protection. However, a private individual may not be aware of this and could find herself in the center of a legal struggle between two artists. Consider the amount of commissioned graffiti style work on a private building that can be used for photo shoots. If those images are used to sell a product then legal issues can arise.
The popularity of graffiti style street art has grown over the years and it is not uncommon to find it used as an element of design in products throughout the market. Designer Agnes B. has long been a supporter of graffiti artists and commissioned them to paint delivery vans for the company as well as design aspects of the clothing distributed by the company (Peiter and Raynal, Peiter ed. 2009.) While she and her company have been careful to give credit and treat the work as work for hire, there are other cases where the gray area of using a work as a point of inspiration, or using work directly have arisen. Under copyright law, a new work of art may not created as a derivative of an existing work of art without the original author’s permission (Hayton, Goldstein ed 2005.) One such case is examined below.
Case Studies
The City of Los Angeles presents one of the most interesting cases for the examination of public and street art currently because it has a history of both promoting and condemning public work and may have put itself in a difficult position. As early as 1976 the City of Los Angeles was providing not only space for artists to work in the public arena but also supplying materials needed for the execution of this work (Baca 2013.) Muralist and UCLA professor Judith Baca has been a key figure in the Los Angeles mural community and has served as both an artist and activist for the creation and protection of murals in the city. In an interview with the Huffington Post she sated that Los Angeles stopped conserving murals in 2006 and in 2007 stopped issuing permits for murals on government property (Baca 2013.) The city had, up until very recently, a moratorium on any murals in the city on private property since 2002 (Sailliant 2013.) The issue here is that if the city has allowed murals owned by the city to fall into a state of disrepair, or be destroyed altogether since 2006 they may be liable to the artists, especially if those are artists of stature such as Judith Baca, Risk, and Saber. As of 28 August 2013 the moratorium has been lifted (Saillant 2013.) The city has run another risk by painting over murals on private property citing the 2002 Moratorium (Wilson 2012.)
Seattle has been held as the most proactive city in regards to both the commissioning of public art and its conservation. The city has worked into its budget a line item for the dedication of money for the creation of public art and has charged the Cumulative Review Sub-fund with the upkeep of this work (Seattle 2013.) What is best learned from Seattle is its organization in commissioning, approving and maintaining public art which comes from more than thirty years of experience. While a lot of work was created before the 1991 VARA act, the city appears to almost of had a premonition about what areas needed to be covered as all their official documents discuss the funding, ownership, and future of work before the work even begins (Seattle 2013.)
Artist Curtis Kulig is like many of his generation. He has created fine art, been commissioned to work with interior design studios and fashion houses and been qualified as a street artist because of his graffiti work. His graffiti work even made a small appearance on the opening sequence for Saturday Night Live and it is this particular work that is under examination here. His most popular work reads “Love Me” and before it was a fashion logo is was pasted across New York City in the form of stickers, posters and graffiti. Victoria Secret used the term as the label for a line of body lotion, Kmart took the image directly and put it on a tote bag and Michael Stars did the same on a t-shirt with the addition of a small butterfly. All of these organizations claimed that it used Kulig’s work as a point of inspiration. Kulig is working on stopping the use of his image and is having some success (Kulig 2011.)
Analyzation
What does this mean for the future protection of artists’ moral rights, ownership of artwork in the public sphere? How should artists, arts administrators and the public entities that support public art work proceed? It is established that publicly commissioned art work must not damage the artist’s reputation and honor. There have been some very good developments and some instances where precedent is being set, even if these cases are not located in the legal cannon. However, there is no strong systematic approach to these issues about protection of moral rights and protection of copyright ownership when a painting is placed in the public realm. Without the development of an approach, artists and administrators are liable to fumble along while these issue raise themselves again and again.
In regards to protection of the artist's moral rights, municipalities that commission works of art need to build into their procedures and documentation both the course of action should a work need to be moved or altered, and the history of artists and the work. The current system is fractured into different components. Conservators of public art state that there needs to be better cooperation between artists, engineers, designers, and city planners to plan out work that will be displayed in the public (McNally and Hsu 2012.) Cities and public owners of artwork will be better poised to do this as the resources are closer at hand. To protect citizens, cities and public owners should inform private owners of public art about the issues surrounding VARA protection and help them to create proper documentation and guidelines to avoid legal problems in the future. Arts administrators stand at an advantage to help in these endeavors. As they are more familiar with both the needs of the public and the needs of the artist they are positioned to facilitate the commission and preservation of public art. Finally artists should also be made aware of the potential issues when creating public art. They should be aware that the landscape changes, individuals do not exist in perpetuity and neither do organizations. Artists should consider how to design work and what their artistic message is and how the form of the work can be changed and still communicate their this message. Public art is for the public which means that groups of people will need to work together instead of servicing one another. The approach Seattle has taken towards commissioning and up-keeping its public art should be emulated. communication and understanding about public art is the key to conserving it as an enriching part of the cultural environment.
Art in the public, whether legal or not, is becoming more and more common. At this point in time many artists do not define themselves as street artists because art in the streets is becoming a given, not an option. However the opportunity for exploitation is far greater when art exists in the public eye and the gray area around who owns the work and who owns the copyright make the issue even more difficult to navigate. Individuals who wish to use public art as a point of inspiration need to be aware of how they could be infringing upon the rights of an artist if they create a work that is either derivative or uses imagery without permission. Artists also need to be aware of the potential problems of work being out of doors where viewership will be much higher. Street art, even graffiti is becoming a work of stature. In the Brooklyn neighborhood of Williamsburg there are local tours of the area’s public art and some graffiti is featured in those tours. There are also guidebooks of the area pointing out important work (Imam 2012.) If an important, recognized artist such as Shepherd Fairy, Kenny Scharf, or Barry McGee put their work on a wall and it was appropriated by a t-shirt company would there be legal recourse. The case with Curtis Kulig implies there is. Artists need to consider this aspect and administrators who represent these artists also need to be aware. Also if one of these artists put their work on a wall, being a work of stature can the owner of the building be compelled to protect the work? Does the owner of the building own the work? If the work is created illegally it is unlikely that the artist, no matter what the stature can protect that painting. However this may change. The recent case where a building owner in London removed a Banksy work from his wall and set it to auction caused uproars in the artistic community and in the community where the work was located (Zhang 2013.) It may be a matter of time before art like this is afforded protection.
These issues are only the beginning of matters that do or can exist when considering public painting. They are not resolved but it is in the art communities best interest to begin working on them. Further contact between administrators, legal professionals and artists need to happen and resolutions need to be created to see the positive proliferation of art in the public eye.
Bibliography
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Goldstein, Barbara ed. Public Art By The Book. University of Washington Press, Seattle. 2005.
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Kulig, Curtis. “The Art of Obsession.” TEDxTeen. New York City. 26 April 2011. WEB.
“LA Mural Moratorium Ends with 13 - 2 Council Vote.” KABC. Columbus Media. 28 August 2013. Radio.
McNally, Rika Smith and Hsu, Lillian. “Conservation of Contemporary Public Art.” Conservation Perspectives. Fall 2012: pp. 4 - 9. WEB.
“Office of Arts and Culture.” Seattle.gov. City of Seattle. 2013. 16 November 2013.
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Zhang, Michael. “Who Owns Illegal Public Street Art Found on Public Buildings?” PetaPixel. PetaPixel. 22 February 2013. 16 November 2013. WEB.
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