Art Law by Ann Avery Andres, Esq.
Artwork Affixed to Buildings or Realty
In 1990, Congress passed legislation designed to codify artists' rights. Known as VARA (Visual Artists Rights Act), this law is incorporated into federal copyright law and confers upon artists, regardless of whether they retained copyrights in their artworks, rights of action, damages, and injunctive relief for violation of two inherent rights related to those artworks: (1) right of attribution and (2) right of integrity.
VARA has special provisions for visual art "incorporated in or made part of a building". California has enacted similar protections for artists as have several other states (California Artists Preservation Act).
Basically, the law provides that if artworks are part of a building and the art can be removed from the building without destruction, distortion, mutilation or other modifications of the work, the owner of the building must give the artist or his/her heirs or assigns(up to 50 years after the death of the artist) notice that the artwork is being removed and an opportunity to remove the work. A plaza or courtyard has been interpreted to be a "building" (Serra v. U.S. Gen. Services Admin., 664 F.Supp.798). If the artist chooses to remove the artwork at his/her expense, legal title passes to the artist.
In California this law was subject of a lawsuit filed by sculptor, PAUL VON RINGELHEIM against the owners of MGM Plaza in Santa Monica. Von Ringelheim designed a fountain in 1981 for the then called Colorado Place in the main building's atrium, part of a 15 acre complex. In 1998, the fountain was destroyed during a renovation. The owners claimed that they did not know that the fountain was "art" and they did not give Von Ringelheim notice. The fountain contained a stamped copyright symbol on its base.
The owners of MGM Plaza settled the lawsuit by paying Von Ringelheim $220,000.00. The original commission was $100,000.00.
The lesson to be learned for owners of building who commission artwork is two fold: (1) give artists whose work is part of the building notice that the artwork is being removed and offer them an opportunity to remove it;(2) at the time the artwork is commissioned, have the artist waive any rights dealing with future removal or destruction of the artwork in writing. The lesson to be learned for artists is: (1) at the time of entering into a contract or commission to do the work, reiterate your desire to be notified prior to destruction or removal under any circumstances (2) decide if you are willing to waive the notification requirement if asked to do so by the owner of the building.
The most important lessons for everyone is to realize that the artist has notification and removal rights of artworks part of a building or space unless specifically waived in writing or unless the artwork is affixed in such a manner that it will be substantially defaced, mutilated, altered or destroyed by renovation or removal. The issue of whether removal or renovation will substantially affect the artwork should be addressed at the time of the commission.
© Ann Avery Andres, 2000
Ann Avery Andres practices law in Santa Ana,CA. She may be reached at 714.558.7775. Her address is 322 West Third Street, Santa Ana, CA 92701.
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Resource Library Editor's note: Laws regarding the content of this article may have changed since it was published in 2000. Please seek legal counsel for current information.
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