Saving Picasso’s Le Tricorne and other pre-1991 Artworks: Can VARA help?

Mira T. Sundara Rajan's blogpost last month, "Picasso and Potato Chips", on this weblog here, attracted a good deal of attention and a number of comments.  In this, a sequel to her earlier blog post, Mira elaborates on the theme of art works that are damaged or destroyed when moved, also addressing a number of issues raised following her earlier post. This is what she writes:

Saving Picasso’s Le Tricorne and other pre-1991 Artworks: Can VARA help?

Many thanks to readers for their interest in the issue of moral rights in the Picasso artwork whose fate quite literally “hangs” in the hands of the owners of the Four Seasons Hotel property in New York. In my earlier piece, I focused on the concept of using law to prevent the destruction of artworks. This issue has been debated by copyright experts over the years because, it is argued, the destruction of an artwork may or may not have a negative impact on the reputation of the artist – the test established by Article 6bis of the Berne Convention, and mirrored in most copyright laws in the world, for claiming a violation of the artist’s right of integrity (in the context of Amar Nath Sehgal v Union of India, I commented: “destruction of a work can prejudice an author’s reputation by reducing the volume or quality of his creative corpus”, language reproduced by the court in para 31 of the judgment; see also para. 41). I noted the interesting point that U.S. law, in the form of the Visual Artists Rights Act of 1990, explicitly seeks to prevent works from being destroyed.

To be precise, section 106A (a) (3) (B) provides that the author “shall have the right— ...(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.” This provision is “subject to the limitations set forth in section 113 (d),” which deals with artworks incorporated into, or installed in, buildings. In the case of a work that is “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction...of the work,” and the artist has “consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal,” the right to prevent destruction “shall not apply.” If, on the other hand, the work “can be removed from the building without the destruction... of the work,” then the owner needs to make a “diligent, good faith attempt ... to notify the author of the owner’s intended action affecting the work of visual art.” Once such notice has been provided, the onus is on the artist to respond, and to “remove the work or to pay for its removal.” If the artist fails to respond to good faith attempts to notify him or her of the intention to move it, the owner is within his or her rights to remove the artwork after 90 days.

The scheme overall seems well-focused on protecting murals and other works installed in buildings, like the Picasso, from destruction (the approach under California’s Art Preservation legislation was different; see California Civil Code, s. 987(h). Presumably, this provision has been pre-empted for post-VARA works, and those pre-VARA works that qualify for VARA protection). As I noted previously, when compared to moral rights legislation worldwide, and to Berne, U.S. law seems quite ambitious in this respect.

The specific question of whether VARA could apply to the Picasso artwork in this case, or to another artwork in similar circumstances, calls for several legal hurdles to be leapt. The key issues are the passage of title in the original work, duration of VARA rights, standing, and the concept of a work of “recognized stature” under VARA.

Let’s deal with title first, since it affects the other issues. VARA came into effect in 1991, but that leaves us with a factual paradox – a statute that seeks to protect artworks confronted the problem of what to do about artworks that already existed at the time the statute was adopted. Harm to an artwork is harm, after all, whenever the art was first created.

VARA doesn’t exclude pre-existing artworks; rather, it tells us that, for artworks created before 1991, the issue is one of whether or not the original artist has retained title in the artwork. Section 106A (d)(2) provides that, for “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,” the rights “shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106” – the copyright provisions.

Copyright aficionados will sense a potential issue here, as ownership of an artwork and copyright in that work are distinct from one another. Which, exactly, does “title” mean? According to experienced VARA (and CAPA) litigator, Brooke Oliver, the transfer of “title” under VARA should be taken at face value: it simply means transfer of ownership. In other words, if the artwork has been sold by the artist prior to 1991, VARA cannot be invoked. Oliver cites William Patry’s famed copyright treatise, noting:

“Ownership,” not “title” is the term of art used throughout the Copyright Act when referring to ownership of copyright. The statutory language in Section 106 (a)(d)(2) refers to title to tangible property, i.e., the installed mural or sculpture. The legislative history makes clear that “title” refers to the particular copy. Both the legislative history and rationale are explained in PATRY,COPYRIGHT LAW AND PRACTICE, Vol. II at 1061 (Bureau of National Affairs 1994) c 5, The Visual Artists’ Rights Act of 1990.”" 

He explains:

“The House agreed to limit VARA to copies (including the original) of “works of visual art” created before the effective date (June 1, 1991), the title to which had not, as of that date, been transferred by the author. The term “title” refers to title to the physical copy of the work of visual art at issue, and not to title to any intellectual property rights. Id. at 1061". 

The applicable footnote also explains:

“By focusing on the title to particular copies, VARA permits retroactive application where a work created before the date of enactment may be protected as embodied in some copies, but not others. Where title to a particular copy was not transferred before June 1, 1991, the copy is protected; where title to a particular copy was transferred before that date, that particular copy is not protected.” Id. at 1061". [emphasis removed].

But this perspective is not universally shared: Nicholas O’Donnell, discussing a pending lawsuit on behalf of Los Angeles artist Victor Henderson comments:

“The effective date of VARA is June 1, 1991. This paragraph thus first means that as long as the original author (Henderson) still holds the copyright, his VARA rights will exist as long as his copyright does, and expire at the same time. Assuming that Henderson had never transferred the copyright in the 1969 mural, those rights would not have expired, and his VARA rights would still be enforceable for a previously-created work.”

... An opening for a different approach to interpretation?

William Brutocao and Eric Bjorgum, lead trial attorney and team member in the case of the famed Los Angeles mural of Ed Ruscha by Kent Twitchell point out that “a mural is [a] piece of property comprising separate ownership rights of title, possession, copyright and moral rights”.

In the case of “Le Tricorne,” the work was painted by Picasso for Serge Diaghilev, and a deeper examination would be needed to uncover the intricacies of their arrangements. We can imagine that their relationship was probably informal and not regulated by a written contract. Nevertheless, the work was made for Diaghilev and was also physically delivered into his possession for the purpose of staging the ballet; the existing artwork at the Four Seasons has already been “cut down from its original size” (see here). As noted earlier, the work is not a mural per se, but the different interests identified by Brutocao and Bjorgum would seem to apply to an artwork like this one – part of a set design prepared for a collaborative, interdisciplinary, and creative use by another artist. Per Oliver’s assessment, if title in Le Tricorne passed out of Picasso’s hands into Diaghilev’s, the artworks would clearly be beyond the reach of VARA. If, however, title to the work had remained with Picasso, and passed to his heirs upon his death – and this is something to keep in mind in relation to other pre-1991 works of art – VARA could reach the work despite the fact that it was created long before anyone had ever dreamt of the statute.

The issue of standing is also interesting, and, at a practical level, is related to the question of duration. VARA specifies that the moral rights provided by the statute are personally held by the artist and cannot be waived. For the most part, this will mean that VARA rights can only be exercised by the artist: in works created on or after the effective date of VARA, the rights endure only for the lifetime of the artist. In the case of pre-existing works that are eligible for protection, however, VARA rights will endure after the author’s death (perhaps one of the policy anomalies arising from VARA). In line with copyright practice, the heirs of the artist would be able to act after the author’s death; but, what about other organizations, to whom the artist might bequeath works and, implicitly or explicitly, rights?

For example, if an artist were to appoint an organization like the New York Landmarks Conservancy to protect his or her works for the post mortem auctoris period when they would remain under copyright protection, it would seem that the designated organization should be able to assert VARA rights on behalf of the deceased artist. Nevertheless, the general position of VARA is not to recognize the rights of public interest organizations. In this respect, VARA offers more limited protection than state statutes in at least two states, California and Massachusetts, which both allow public interest organizations to sue for integrity. Writing in the year 2000, Christopher J. Robinson aptly commented that this approach amounts to “granting a public cause of action for what are effectively community moral rights” – and these provisions in state law, which go beyond the scope of VARA, should not be pre-empted by the federal statute. Internationally, Russian copyright law, which gained some U.S. exposure in the Russian Kurier case of 1998 provides for such contingencies, stating that “any interested person” can sue for moral rights protection; Russian law also allows an author to designate a moral rights “executor” who will take care of the author’s moral rights after his or her death (see Russian Civil Code Art. 1228.2; Arts. 1266 & 1267).

“Recognized stature” is something that would need to be shown before the VARA provisions on destruction could be invoked. In the case of the Picasso, the test would seem to be easily satisfied; but the recent destruction of the murals at 5 Pointz raises some sobering reflections about the limits of courts (and others) to perceive recognized stature in contemporary and unconventional creative works (see IPKat here and here; Lexology here).

... And, what about the resale right, droit de suite, in works that are no longer owned by the original artist but sold on for ever more fabulous sums by subsequent owners? It’s beyond the scope of VARA, but California, once again in the vanguard, has its own Artists Resale Royalty Act (s. 986 of the California Civil Code, available here). The Act has faced Constitutional invalidation in the United States (2012, currently pending appeal), but the U.S. Copyright Office is interested in introducing a resale royalty in the United States to reflect the harmonized droit de suite in the European Union (see here and here). The title of the latest proposed bill?... “American Royalties, Too” (Feb. 2014).

Posted for Mira by Jeremy