"Fair use" doctrine

[OnTheRock]

The recent Straight Dope on republishing the work of others was interesting and enlightening as usual, but its not quite correct to say that a building owner can repaint a wall containing “a brilliant original sonnet” sprayed there by a graffiti artist. A federal law, the Visual Artists Rights Act (“VARA”) may protect the sonnet even if it was put on the wall without the building owner’s consent, depending on the exact circumstances.

[Contrapuntal]

@OnTheRock

The recent Straight Dope on republishing the work of others was interesting and enlightening as usual, but its not quite correct to say that a building owner can repaint a wall containing “a brilliant original sonnet” sprayed there by a graffiti artist. A federal law, the Visual Artists Rights Act (“VARA”) may protect the sonnet even if it was put on the wall without the building owner’s consent, depending on the exact circumstances.

What exact circumstances would those be?

[Gfactor]

I think you’re right. It’s fair to assume that under some circumstances, a graffiti sonnet, might be a “work of visual art.”

(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 cast, 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.

A work of visual art does not include–

(A)

    (i)
    any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;
    (ii)
    any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;
    (iii)
    any portion or part of any item described in clause (i) or (ii); 

17 U.S.C. 101: Definitions, Feb. 2016 (BitLaw)

Even so, I think Cecil was assuming the work was not commissioned by the building owner, but instead placed illegally. The courts that have considered the issue have concluded that the VARA doesn’t apply to illegally placed visual art. English v. BFC&R East 11th Street LLC, 1997 U.S. Dist. LEXIS 19137 (S.D.N.Y. 1997); and cf. * Pollara v. Seymour*, 150 F. Supp. 2d 393 (N.D.N.Y. 2001) (act only applies if illegally placed visual art can be removed non-destructively).

[Gfactor]

@Contrapuntal

What exact circumstances would those be?

VARA gives the author (or creator) of a work of visual art the right to:

Claim authorship of the work;

Prevent the use of his/her name as the author of a work he/she did not create;

Prevent the use of his/her name as author of a work that has been distorted, mutilated or modified to a certain degree; and

Under certain circumstances, prevent the distortion, mutilation, modification or destruction of a work of visual art, though this right is restricted when the work has been incorporated into a building with the consent of the author.

VARA provides protection of these rights for the duration of the life of the author(s) of the work, and these rights cannot be transferred to another party, though they can be waived if done so by an express written and signed waiver.

http://www.artslaw.org/MORAL.HTM

[qazwart]

Reminds me of this article in last year’s Daily Telegraph:£3,000 graffiti wall vandalised by disgruntled taxpayer.

The town of Wadebridge, Cornwall in England built a wall for young kids to practice their graffiti on instead of the buildings in town. Someone snuck in the day before the wall was opened, and sprayed graffiti on it.

[Contrapuntal]

@Gfactor

http://www.artslaw.org/MORAL.HTM

Under certain circumstances, prevent the distortion, mutilation, modification or destruction of a work of visual art, though this right is restricted when the work has been incorporated into a building with the consent of the author.

I’m confused. If the artist has consent the right is restricted? Does that mean it isn’t restricted if he doesn’t have consent? That seems to contradict your previous post.

[md2000]

In the Eaton Center in downtown Toronto, there is a hanging sculpture in the south atrium/ gallery/whatever. It’s a life-sized flock of Canada Geese in flight (but no 737). It’s not bad, a distinct departure from the “turd in the plaza” art (so named by Tom Wolfe) so common in modern buildings. But really, it’s just a flock of geese. Might as well have a wall of duck decoys too.

Many years ago, the mall management decided to liven them up with a nice red bow around each goose’s neck for Christmas. The artist threw a sh*t-fit about “desecrating art”, and the publicity persuaded the management to take the bows off. Bah humbug! This was one of the publicity items that helped Canada get its own version of the law.

Same idea - during the life of the artist, he/she has significant say about and in what context the art can be displayed, even after selling it. I haven’t heard any of the expected junk - “I don’t want my art associated with (insert disliked corporation here)!”

Nobody has said anything yet about buildings themselves. As I understand it, in some countries, the appearance of the building is a work of “art” by the architect, and receives the same protection. It also makes it difficult to sell photographs of the building, as a photo of a work of art is violating the architect’s copyright and artistic rights.

But then, what is art? I always liked teh answer “Art is the name of a guy with no arms or legs, hanging on the wall.”

[Gfactor]

@Contrapuntal

I’m confused. If the artist has consent the right is restricted? Does that mean it isn’t restricted if he doesn’t have consent? That seems to contradict your previous post.

The short answer is that you’re misreading what you quoted. It says, “when the work has been incorporated into a building with the consent of the author.”

So they’re saying if the *author *consents to the installation, he gives up some rights. But you say “**if the artist has consent **the right is restricted?” Let me fix that for you, as some of our posters are fond of saying: “if the artist has consent[ed] the right is restricted.” Two letters change the party doing the consenting, and hence the meaning of the sentence.

The short summary that I quoted for you above doesn’t discuss the implications of the **building owner’s **consent, so they aren’t inconsistent at all. Of course, in most cases, the artist would have consented after the building owner asked the artist for consent, which means the art would have been placed legally, which means that the cases I cited wouldn’t apply. Those cases deal with a situation where the artist applies his art on a building without the consent of the owner, and the courts held that the artist lacks the rights under the statute.

Here, by the way, is the provision that deals with the artist’s consent:

(d)
(1) In a case in which—
(A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A (a)(3), and
(B) the author 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,
then the rights conferred by paragraphs (2) and (3) of section 106A (a) shall not apply.

17 U.S. Code § 113 - Scope of exclusive rights in pictorial, graphic, and...

and here are paragraphs (2) and (3) of section 106A:

((a) Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

---

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
(3) subject to the limitations set forth in section 113 (d), shall have the right—
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(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.

[Gfactor]

For those wondering which Cecil column we are discussing it’s the new one, which won’t be on the SD home page or in the mailer until tonight. It runs earlier on one of the CL sites. Here it is, for those who can’t wait:

http://charlotte.creativeloafing.com/gyrobase/who_controls_the_content_on_an_internet_message_board_/Content?oid=736837