Wednesday, June 28, 2006

No VARA Trophy

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.


Anonymous said...

If a drawing is a work of visual art and a sculpture is a work of visual art, then how can one conclude that a drawing for a sculpture is not a work of visual art? Was this court thrown off by the object of a "trophy" to believe that a trophy is not a sculpture? As to the artistic sufficiency of a trophy, extraordinarily superior sculptors are hired as a matter of course to create ego quelling trophies on behalf of corporations and governments. The selection of artists for Olympic medals every other year comes to mind. Many trophies are unique and not reproduced in copies. If it were a trophy given once a year as a copy, it would take 199 years to reach the threshold of the statute taking the work out of contention as a sculptural work of visual art.

I helped draft the definition of a work of visual art on behalf of a non-artist client and I don't remember trophies coming up. I certainly would not have found them to be merchandise.

William Patry said...


How do you square such trophies with the definition in Section 101 that excludes from protection merchandising, advertising or promotional material?

Aaron Silverstein said...

The First Circuit should be issuing a VARA opinion any day now in Phillips v. Pembroke. Case concerns the applicability of VARA to site specific works of art.

Anonymous said...

The only threshold issue for me is the requirement of a sculpture issued in less than 200 copies (and that the copies are numbered and signed). If a trophy consists of a base with a sculpture on it or of a sculpture incorporating a base (like Oscar (r)) then it is first and foremost a sculpture and only incidentally being used otherwise as a trophy. All art has uses even if it is only an object to gaze upon. If the trophy, on the other hand, is some kind of vaguely ornamental version of a utilitarian object such as a bowl, it probably fails in the threshold requirement of being a sculpture.

The sculptural element of a trophy and the functional purpose of a trophy as a specific award of accomplishment stand apart from its promotional, advertising or merchandising uses. When a company buys a major artwork and then uses it in advertising and then merchandises it and then uses the artwork for promotions, the artwork doesn't loose its status as a work of visual art under the Act.

Trophies are not inherently advertisements although they might appear in one; in many cases they are not merchandise because they cannot be bought as objects (n.b. Oscar (r)); so the best argument in making trophies fail as works of visual art might be that they are promotional of an event or of an accomplishment.

The statute says as an exclusion from otherwise qualifying works: "any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container." In context, I would say the term “promotional” speaks to the kind of materials used specifically to promote products, places and events such as posters. This was language that I worked on directly and from the perspective of my client it meant promotional materials such as posters or a give-away toy. I am only guessing here but we probably would have agreed to exclude trophies from the exclusion if asked. Finally the definition requires that it be “promotional material” not just promotional in use. I don’t think colloquially we consider as a culture that a trophy is itself “promotional material.” The trophy my son just got at the end of his park baseball season (and the game ball he got in the playoffs as an MVP) are not promotional materials even if they induce a young mind to turn favorably to baseball in deference to the World Cup.

William Patry said...

You win a trophy from me for you interpretation of the statute.

Anonymous said...

Professor Patry,

I don't agree with your opinion that Visual Artists Rights Act is an embarrassment for droit moral. The droit moral is simply in contrary to the freedoms of speech and press. The more power is given to the droit moral, the more constrained the freedoms of speech and press will be.

The passage of the act is really an embarrassment for the freedom of speech and press that this country is based on. Given that the artists are simply greedy and seek to control over how people can say about their products and do with their products, the act was created to satisfy their greed and desire to control.

Thankfully, the scope of the rights of attribution and integrity is very limited when compared with the other countries. I hope that the scope will stay that way and will never expand again forever. If the rights of attribution and integrity can be eliminated or their scope can be reduced, the better it is for the freedoms of speech and press.

The ruling surely is a relief for the freedoms of speech and press.

Joseph Pietro Riolo

Public domain notice: I put all of my expressions in this post in the public domain.

William Patry said...

I don't know that artists are, as a group, greedy than others. Certainly droit moral is about control, but I think the issue is the extnet of control or the type of it. Whne VARA was drafted, I insisted on there being a fair use defense to droit moral over the objections of some Francophiles, so i thik this takes care of many concerns.