The Visual Artists Rights Act is a somewhat embarrassing nod toward droit moral: a minimal grant of rights of attribution and integrity long recognized in civil law copyright systems. Passed in 1990, but effective 1991, Section 106A is severely limited in scope, marred by some of the ugliest drafting ever (thanks to book publishers who had no real dog in the fight anyway), and astonishingly, ridden with formalities, i.e., a marking requirement; it such a distinctly American product that it gives the French reason to say "We told you so."
Still, it is better than nothing since nothing would have been passed had it not been. There are, though, not surprisingly few VARA cases. One just decided by the Third Circuit doesn't exactly take the prize, but it does involve a trophy, specifically a design for NASCAR to replace the Winston Cup. The new trophy, the subject of the dispute, was to be known by the winsome name "NASCAR NEXTEL Cup," National Association for Stock Car Racing, Inc. v. Scharle, 2006 WL 1697101 (3d Cir. June 21, 2006). Here is the court's entire discussion of VARA:
VARA protects the rights of attribution and integrity of the author of a “work of visual art.” 17 U.S.C. § 106A. A “work of visual art” is defined as:
1) a painting, drawing, print, or sculpture, existing in a single 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 case, carved, or fabricated sculptures of 200 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.17 U.S.C. § 101.
Among other things, a work of visual art does not include any: “technical drawing, diagram, model, ··· merchandising item[,] or advertising [or] promotional ··· material.”The district court found that Scharle's drawings for the trophy fell outside the purview of VARA and granted summary judgment for the Mint on this claim. The court determined that Scharle's works were drafts which did “not exist in a single copy or a limited quantity of signed and numbered copies, but instead as multiple attempts to arrive at the optimal design for the trophy.” We agree with the district court's conclusion. We note, however, that there is at least one other ground upon which the district court could have relied upon in concluding that VARA did not apply to Scharle's work. We believe that the court could have concluded as a matter of law that Scharle created technical drawings, diagrams, or models for the trophy, and are therefore excluded from the definition of “works of visual art.” 17 U.S.C. § 101.Accordingly, the district court properly determined that the trophy images were not “works of visual art” under VARA.
The alternate ground is the only sound one: there is no marking requirement for an in-process draft: drafts don't constitute editions.