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If You Make Something, Can You Destroy It?–Visual Artists’ Exclusive Right To Destroy (or Preserve) Their Works (NY)

October 8, 2021

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<p style="text-align: justify;">Generally, when you buy a product, you can do what you want with it. But if you buy a work of art, your rights in respect of that work may be limited. For hundreds of years, the French legal system has recognized artists’ “moral rights,” or “le droit moral.” The concept of moral rights protects the personal, artistic, and reputational value of a work, rather than its purely monetary value, for the benefit of its creator.</p>
<p style="text-align: justify;">The American legal system protects artists’ moral rights through the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. §106A, an amendment to the Copyright Act. Under VARA, visual artists have the rights of “attribution and integrity,” meaning they have the right to claim authorship of their works, the right to “prevent the use of his name...as the author of the work of visual art in the event of distortion, mutilation, or other modification of the work which would be prejudicial to his honor or reputation” (i.e., he may “disavow” a work). Artists also have the right to prevent destruction of their works, among other things.</p>
<p style="text-align: justify;">Many states have adopted their own versions of VARA to protect artists’ moral rights. Notably, under a correlating California law, California Civil Code §987(c)(1) states that “No person, except an artist who owns and possesses a work of fine art which the artist created, shall intentionally commit, or authorize the intentional commission of, any physical defacement, mutilation, alteration or destruction of a work of fine art.” In other words, while VARA gives artists the right to prevent the destruction of their works, the California statute goes even further by giving artists the right to intentionally destroy their own work. In either event, the theory behind these rights is that an artist should be in control of the eventual fate of their work.</p>
<p style="text-align: justify;">VARA issues typically arise in cases where artists wish to preserve artwork in public spaces, such as sculptures in parks or murals on buildings. However, VARA rights are just as relevant in legal disputes involving smaller-scale paintings, drawings, or privately-owned sculptures. VARA may also preempt state law in certain cases and the issues can be complex. As such, art galleries, collectors, artists, and fine art insurers should be aware of the implications of VARA and other related statutes in connection with the creation, sale, and ownership of works of fine art.</p>
<p style="text-align: justify;">Thank you to Alexandra Deplas for her contribution to this post. Please email <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.</p>

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