Having been a violinist, one area of law which has always intrigued me is performers’ rights.  Known as “moral rights,” performer’s rights, among other things include the right to control how the performer’s rendition of a musical work is used. 

Performers spend much time and effort planning out exactly how they will perform a work with the performer’s unique interpretation and rendition of a musical composition.  For example, there are as many renditions of the “Star Spangled Banner” as there are vocalists who have performed it.  Fergie’s controversial rendition at the 2018 NBA all-star game and Roseanne Barr’s attempts to sing the anthem at a 1990 Padres game come to mind, among others less “notable.”

Performers like Fergie and Roseanne not only are famous enough to be recognized by their first names, but also have agents and attorneys who can negotiate a contract describing exactly when, where, and how their unique rendition can be used.  Yet, despite some probably strong contract language to the contrary, those performances live on in infamy, even though Fergie and Roseanne both might prefer that they be forgotten. 

Most performers do not have the wherewithal or bargaining power to negotiate a contract.  Further, absent a contract describing the performer’s rights to his/her performance, in the United States, a performer usually cannot be guaranteed that he/she will have control over what happens with that performance or that he/she will be compensated when it is reused.[1] Where there is protection, it is generally is under state laws, which vary from state to state, where they exist at all.

Composers, record companies, and visual artists fare better under the law. They all have clear protection under copyright law, and visual artists far even better; they have a special law, called the Visual Artists Rights Act.  VARA, as it is known, is not one of those laws commonly studied in law school, and it certainly isn’t a law that one hears bantered about in the news regularly.

However, in February 2018, VARA made headlines when, after a jury trial, a federal court ordered a real estate developer in Queens to pay $6.7 million to 21 graffiti artists whose work was of "recognized stature." What did the real estate developer do to cause such a huge judgment?  He whitewashed over graffiti on buildings he owned without giving the graffiti artists 90 days’ prior notice of his intention.[2]  Unfortunately, for the developer, he had given permission to the artists to paint there only to have the buildings in question become a tourist mecca for graffiti art aficionados, known as 5Pointz.

What are Moral Rights?

So what is VARA and why does it “trump” a New York real estate developer’s right to do what he wants with his own property?

VARA was passed by Congress in 1990 to protect visual artists’ moral rights. VARA is limited in the scope of art it protects, which is limited to paintings, sculptures, drawings, prints, still photographs produced for exhibition.[3] VARA specifically does not apply to works for hire and a number of other categories of work, generally those (such as mass-produced prints, motion pictures, books, and advertising materials) which might be mass-produced and for which general copyright protections exists.  VARA also is limited in scope. It only covers two of the “moral rights” seen in comparable foreign laws – an artist’s right to attribution for the artist’s work (e.g., the right to get credit for the work and not to have someone else take credit) and the right to integrity (e.g., the right not to have the work altered or destroyed).  VARA rights continue until the end of the year of death of the artist.

Finally, it is important to note that if a work of art has been incorporated into or made part of a building with the property owner's permission, it may be possible to move or even destroy it, but only after giving 90 days’ notice to the artist and allowing the artist to remove the work or pay the cost of removal.

Another Limitation on Real Estate Owners' Use of Their Property

Real estate owners know that there are limitations on what they can do with property they own. Zoning ordinances, building codes, and conditional use permits might put state and local governmental limitations on a real estate owner. Real estate owners also subject to air rights, riparian rights, and similar restrictions which restrict a real estate owners’ ability to use a property in manner impacting other real estate owners.  Easements, licenses, restrictive covenants, and condominium declarations are agreements made by a real estate owner, which limit what the owner and successive owners can do with a property.  

In addition, the real estate owner must be concerned with federal and state laws[4] like VARA, which may impinge on the ability for the owner to make capital improvements and updates at a property. 5Pointz isn’t the first time an artist has won a lawsuit for painting over exterior art. In 2006, muralist Kent Twitchell sued the US government under VACA after it painted over his mural entitled “Ed Ruscha Monument” on the side of a Los Angeles Building[5] – he was awarded $1 million, and in 2017, a building owner settled with artist Katherine Craig to protect her nine-story high “Illuminated Mural” on the side of a building in Detroit.[6]

Not all VARA cases involve murals. In 1997, sculpture Jan Martin filed what may have been the first lawsuit under VARA after the City of Indianapolis demolished his sculpture “Symphony #1” to make way for a urban renewal program, the first of a number of cases filed by sculptors under VARA.[7]

Recommendations for Real Estate Owners

It is clear from these cases that it can be expensive and create negative publicity for real estate owners who fail to consider artists’ moral rights when making decisions regarding their property. Here are some things a real estate owner can do to protect itself against VARA claims:

Commissioned Art.  When commissioning any art for a property, have an attorney prepare an agreement with the artists in which the artist expressly waives moral rights (as well as any copyright or other rights) to the art.  Require this for all commissioned art; do not assume that the work will be considered a “work for hire” or is not a medium not covered by VARA. Be sure that the waiver is transferrable to future owners.

Due Diligence at Acquisition.  When acquiring a property, during due diligence explore whether the building has incorporated into it murals, sculptures, or other items of art which might be subject to VARA. If so, insist that the seller produce documentation showing that the seller has received waiver of the artist’s moral rights or that the art otherwise is not covered by VARA or comparable state laws. If this is not possible, the buyer must be reconciled that it might not be possible to modify or remove the art from the property during the lifetime of the artist.

Don't Give Permission. Vandals do not have rights under VARA. Do not give permission for people to create art on your property. If you do give permission, then require that artists sign a waiver of VARA and similar rights before the artist creates the work. If artists create art on your property without permission, promptly enforce your property rights.

Lease Provisions.  When renting office space or other building units, prohibit the tenant from incorporating any art into the rental space unless the tenant obtains from the artist a waiver of the artist’s moral rights. That waiver should be reviewed by the building owner’s attorney and be assignable to the building owner and future owners.

Obtain a Waiver.  If you own a building containing post-1990 artwork by a living artist of a form which might be subject to VARA or comparable state laws, consider contacting the artist and requesting that the artist waive his/her moral rights in exchange for a current payment.  It might be more saleable to obtain the waiver when no modification of the work is planned and the owner’s bargaining power is greater.  Plus, having that waiver will provide the building owner and future owners with flexibility to make changes to the art in the future.

Give Notice to the Artist. A building owner wanting to modify or destroy art that has been incorporated into the building should not forget to give 90 days’ notice of the owner’s intention to the artist.  The 5Pointz case would never have been if the owner in that case had given the artists that notice.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.