Rights of Artist Impact Landlord and Tenant

The Visual Artists Rights Act of 1990 (VARA) is an obscure federal statute

which enables an artist to protect artwork from damage or destruction, even

though the artist no longer owns the artwork or its copyright. If the artwork

has been incorporated into a building, the artist could control the development

or use of the building. This is a serious problem for anyone seeking to change

the appearance of a building. It can be particularly vexing to a landlord who,

after struggling to evict a tenant, retakes possession only to discover that the

premises can no longer be leased because protected artwork was left behind.

With the merger of entertainment and retail activities, artwork is used

frequently in shopping centers. It is seen in common areas as wall murals,

mosaic tile floors, fountains and architectural enhancements. Tenants create

themed environments through the use of artistic creations. With this increased

use of art, a basic understanding of VARA is important to both landlords and

tenants. The main provisions of VARA can be found in 17 U.S.C. 106A and

113.

Concept of Moral Rights

French civil law protects the "moral rights" of artists, those

personal rights of a non-economic or spiritual nature. This protection is

founded on the belief that when art is created, an intangible and unique part of

the artist is imparted to the work. Accordingly, the artist has the right to be

recognized as the creator of the work and prevent its damage or destruction. In

the United States, traditional property law principles provide that all rights

pass with ownership of the work and its copyright. VARA changed these principles

by adopting the French concept of "moral rights" for artists.

Works of Visual Art

VARA protects "works of visual art" which are defined to include

only paintings, sculptures, prints, drawings and still photographic images. It

must be signed by the artist and be a single creation, or part of a limited

edition of 200 copies or less, each numbered consecutively. Still photographic

images must be for exhibition purposes. The definition excludes any poster, map,

globe, chart, technical drawing, diagram, model, applied art, motion picture or

other audiovisual work, book, magazine, newspaper, periodical, database,

electronic information service, merchandising article, advertising, packaging

material or container. Works of visual art incorporated in buildings could

include mural paintings, mosaic tile floors, unique architectural components,

fountains, stained glass windows, frescoes, and themed interiors for entire

rooms.

Made for Hire

A work of visual art which was "made for hire" is not protected by

the law. Generally, it would be deemed made for hire if created by an authorized

employee. Determination of whether an artist is an employee is based on the

substance of the relationship, considering such factors as the degree of

control, scope and duration of the relationship, level of skill required,

availability of customary employee benefits, frequency and method of payment,

source of raw materials, providing of tools, and the terms of...