The Visual Artists Rights Act (VARA) was enacted by Congress in 1990 in order to bring our laws into compliance with Article 6bis of the Berne Convention and to acknowledge that protecting moral rights will foster “a climate of artistic worth and honor that encourages the author in the arduous act of creation.” The passage of this legislation is said to show Congress’s “belief that the art covered by the Act ‘meet[s] a special societal need, and [its] protection and preservation serves an important public interest.’”
Notwithstanding these lofty statements about artistic worth, honor and encouraging creation, VARA is a narrowly drafted addition to the Copyright Act. This legislation recognized several moral rights in the United States for the first time, but it does not extend to all works of authorship. It protects only a very select group of artists and only very narrowly defined works. As enacted well over twenty years ago VARA might have fulfilled initially our nation’s obligations under Article 6bis of the Berne Convention even though it provides less protection than most European moral rights legislation. It has been called weak, anemic and insufficient.
As interpreted and applied by the courts since 1991, it is now reasonable to conclude that VARA has not come close to fulfilling our obligations under Article 6bis. The federal judiciary, at both the trial and appellate levels, has taken seriously the statute’s restrictive language, its explicit exclusions from coverage, and the legislative history’s emphasis on VARA’s limited scope. In addition, severe tensions between an artist’s moral rights and the defendant’s rights, particularly property rights, have been palpable in many of the cases brought under VARA. As a consequence, courts have shown great reluctance to permit an artist’s moral rights to prevail over a defendant’s rights. Successful reported VARA claims seem to be few and far between.
This article, after summarizing VARA’s provisions, presents a pre-VARA moral rights case that might come out much differently if it were litigated today. This hypothetical case highlights many of the issues raised by VARA. Subsequent sections of the article analyze the act’s narrow definition of works of visual art as well as its several limitations on the attribution and integrity rights. These are the key provision which have been interpreted and applied by the courts since VARA’s passage in 1990. Time after time the courts have applied this narrowly drawn statute to deny plausible moral rights claims asserted by visual artists. The rhetoric surrounding the passage of VARA in 1990 made lofty promises, but Congress did not deliver on those promises.