Destruction of Works of Visual Art

On May 13, 2005, Judge Deborah Batts issued her fourth opinion in Board of Managers of Soho Int'l Arts Condominium v. City of New York et al, 2005 U.S. Dist. LEXIS 9139 (SDNY)(prior decisions are at 2004 U.S. Dist. LEXIS 17807 (SDNY Sept. 8, 2004), 2003 U.S. Dist. LEXIS 13201 (SDNY July 13, 2003), and 2003 U.S. Dist. LEXIS 10221 (SDNY June 17, 2001)). The case raises important issues in perennial battles over public art, in particular whether works of art must remain publicly installed, as well as the perennial battle between art and commerce given the desire of the building owners to use the space for advertising.

This long running saga began in 1972 when defendant Forrest ("Frosty") Myers was asked to create and install a three-dimensional work of art on the northern wall of a building at 599 Broadway, Manhattan. (The building is a 12 story loft-structure located on the west side of Broadway between Spring and West Houston streets). The work is a non-representational, minimalist creation consisting of four-foot aluminum bars bolted perpendicularly to 42 steel braces, with the wall on which it is mounted being painted in various colors. The work was commissioned by City Walls, Inc., a private not-for-profit organization. There was no written agreement between the then-owner of the building (Charles Tannenbaum) and anyone regarding ownership of rights in the work or regarding title to the physical object. The work was installed in late 1973.

In 1987, the building's owners petitioned the Landmarks Commission to remove the work, but the request was withdrawn after the Commission said the work was an integral part of a landmarks protected building. In 1997 permission was again sought to remove the work. The Commission approved an interim removal due to its unstable condition, and the work was removed. The building owners then asked for permanent removal; permission was denied, but the work has not been reinstalled. Litigation was then brought under a wide variety of theories. Counterclaims were filed. The case became a cause celebre, and remains one. This post only concerns claims under the 1990 Visual Artists Rights Act (VARA).

Beginning in 1979, members of the Massachusetts Congressional delegation began introducing bills to give visual artists rights to prevent the distortion or mutilation of their works. VARA is, however, an offshoot of efforts by film directors to obtain droit moral ("moral rights") in the 1988 Berne Convention implementing legislation. Film directors were unsuccessful, but Congress did subsequently pass VARA, granting very limited, hobbled rights to a defined class of "works of visual art" (defined in Section 101). The rights are found in Section 106A. The definition makes clear that VARA is, in large part, really a preservation act, more concerned with preserving the original and limited edition copies than with giving the artist true moral rights. For example, there is a signing and numbering requirement, something totally inconsistent with Article 5(2) the Berne Convention. And aside from the limited category of subject matter covered (not all pictorial, graphic, or sculptural works), the rights don't extend to mutilations of reproductions. VARA is the Mini-Me of moral rights laws.

One way VARA is broader than Berne, though, is in providing a right against destruction of copies of a work of recognized stature (Section 106A(a)(3)(B)). This right was at issue in Judge Batt's case, in particular, whether the work there had been destroyed or removed. (Two other cases which confronted this issue in the SDNY are English v. BFC&R East 11th Street LLC, 1997 U.S. Dist. LEXIS 19137 (SDNY Dec. 13, 1997 (Baer, J.), aff'd summary order, 1999 U.S. App. LEXIS 23697 (2d Cir. Sept. 27, 1999) and Flack v. Friends of Queen Catherine, Inc.,139 F. Supp.2d 526 (SDNY 2001)(Stein, J.).

In her most recent opinion, Judge Batts reviewed Woody Allen, Annie Hall-like testimony about what destroyed versus removed means, including variations such as "disbanded," "not existing now," "recreated." ("Dismantled" is one that comes to my mind). Judge Batts resorted to the safety of various dictionary definitions in her earlier opinions, with "remove" being defined as "to move from a position occupied ... to convey from one place to another," and "destroyed" being "to tear down or break up."

Why did this matter? Recall I said VARA is really a preservation statute. It is. Congress wanted to preserve works of art as enduring parts of our culture; that explains the limitation of the destruction right to works of recognized stature: lesser works can be destroyed without any loss to society. If VARA were truly a moral rights act, the interests of artists in lesser works would have been protected too in this regard. But they weren't.

Art installed in buildings presents special challenges. If a work of art is installed in a building, does this mean that it has to remain there forever? Does it mean that the building can't be torn down? An affirmative answer might well provide an incentive to building owners to stay a country mile away from art. Yet, depriving installed art of any rights would be a major exception from the very concept of VARA as a preservation statute.

I worked on VARA while a Policy Planning Advisor to the Register of Copyrights. (The principal drafters were House IP counsel and John Podesta, later President Clinton's chief of staff. I first met John when he was a staffer for Senator Leahy and he remained a strong advocate for artists after leaving the Senator). Unlike other issues in VARA (e.g., whether there could be a waiver of rights, a sticking point between the House and the Senate), how to deal with installed art was not the subject of real disagreement.

The basic approach is this, found in 17 USC 113(d) : if an installed, post-enactment work of protected art can not be removed without being destroyed, unless the artist and the owner of the building agree in writing that the work can be destroyed anyway, it can't be removed. This places quite a burden on building owners, but as between them and artists, it was felt building owners are better represented and have more leverage. If the work can be removed without being destroyed, then the artist is given an opportunity to have it removed. If the artist doesn't avail him or herself of that opportunity, then the work can be removed without liability. There is thus no right to keep a removable work of art installed over the building owner's objections and efforts to contact the artist. I spent countless hours with the talented House Office of Legislative Counsel attorney Sandy Strokoff trying to articulate clearly in statutory language what was a non-controversial policy, but in hindsight I think the drafting, while not in the least ambiguous, could have more elegant in the sense of being more simply expressed.

The distinction drawn between "removed but destroyed" and "removable and not destroyed" was at the heart of the VARA claim in the Myers case. Judge Batts found the work removed and destroyed. There are some other wrinkles in the case, though. Congress faced takings issues if it protected, retroactively, pre-enactment works. Myers' work is such a work. One way around a takings problem is to protect the subject matter but to excuse any pre-enactment conduct. VARA does this, but the removal in Myers' case occurred post-enactment. If Congress extended rights to pre-enactment subject matter but reached post-enactment conduct, takings problems are still there in the form of expectations that having owned the work (or the physical copy) at a time when there was no liability one could continue in futuro to act without liability. (This is also an issue for GATT restored works).

For pre-enactment installed works like Myers', our solution was as follows: if, as in Myers' case the work was installed with consent before the effective date, 113(d)(1) does not apply in the event the work was destroyed by removal. This is what Judge Batts held. (Since there is no right to prevent removal of a work that can removed without destruction, 113(d)(2) is of no use either in Myers' case).

There is another point on retroactivity. The retroactivity section of VARA is contained in the effective date provision and is not codified in title 17. (This is almost always the case for effective dates). Instead it is found only in the Public Law version, here P.L. 101-650, section 610(b):

"The rights created by section 106A of title 17, United States Code, shall apply to--
(1) works created before the effective date set forth in subsection (a) but title to which has not, as of such effective date, been transferred from the author, and
(2) works created on or after such effective date, but shall not apply to any destruction, distortion, mutilation, or other modification (as described in section 106A(a)(3) of such title) of any work which occurred before such effective date."

What does "title" here mean? Representative Kastenmeier, the floor manager, explained that the term "title" referred to the physical copy of the work, not to title to the copyright. 136 Cong. Rec. H13314 (daily ed. Oct. 27, 1990). As reported out by the House Judiciary Committee, the legislation had used the term "copyright" in place of "title." H.R. Rep. 514, 101st Cong., 2d Sess. 5, 23 (1990)(There is no Senate report). The change from "copyright" to "title" was designed to eliminate any remaining takings issues, but it also helps artists: an artist could have transferred copyright in a pre-enactment work and transferred title to some copies but not all. As to those where title to the physical object has not been transferred, VARA applies.

In whom title vested in Myers was subject to confusing, inconsistent testimony, at least to me. In her recent opinion, Judge Batts stated that the building owner takes the position that not it, but City Walls has always possessed title. That seems to help the artist on the effective date problem since City Walls supports him. But then there is another question: who is the author? This question is relevant for two reasons. First, the effective date refers to title being transferred from the author. If City Walls is the author then it couldn't have transferred title to itself and the work isn't knocked out on effective date grounds (although as we shall see it is on another ground). But if Myers is the author and it is true that title is in City Walls, then title was transferred by the author, and there is no VARA protection. Thus, Myers can overcome this particular aspect of the effective date problem only if he is the author and he didn't transfer title to the physical object.

The second problem is this: there is an exclusion from VARA coverage for works made for hire. City Walls commissioned the work under the 1909 Act which, in the Second Circuit had a very liberal view of work made for hire. If City Walls is the author as a work for hire, there was no transfer of title but no rights.