Objects of art rarely leave anyone indifferent and frequently inspire intense reactions in society. In the context of the recent events in Charlottesville, Virginia, and throughout the country, the issue of confederate or other controversial monuments and statues has come once again to the forefront of national debate. While many government officials vocally support the freedoms of speech by protesters on every side of the debate, they nevertheless call for the removal from public spaces of controversial effigies dedicated to the Civil War era. As if this issue were not complicated enough, contemporary law adds another twist: Do the creators of confederate monuments or their heirs have a say in whether these works stay or go under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. §106A?

While some countries include moral rights in all authored works, the United States does not generally provide for such rights. However, in the United States, VARA was enacted to protect the moral rights of authors (“authors” refers to artists in the context of this article) in their works of visual art, including in works that the authors no longer own. Unlike other types of property, the physical ownership of a painting or a sculpture does not mean that the owners can do anything they want with them. Among the moral rights of authors codified by VARA is a right of integrity, which may preclude destruction or mutilation of artworks.

To which works of art does VARA apply? In general, VARA applies to paintings, drawings, prints, sculptures and photographs produced for exhibition, existing in a single copy or in a limited edition (200 or fewer, provided other conditions are followed). On its face, therefore, VARA applies to statues and murals, and may apply to other types of memorials, but perhaps not to memorial plaques. A work of visual art does not include “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.”

Notably, VARA also does not apply to works made for hire. The latter criteria may disqualify monuments that were specially ordered or commissioned, if the work is eligible to be a “work made for hire” and if the parties so agreed. In addition, VARA rights may be waived by the author, and modern contracts for the sale of art may contain such waivers of the author's moral rights. For the artwork created before VARA became effective, however, arguably no waivers may exist as there was nothing to waive.

What is the duration of VARA protection? VARA rights in the works created after June 1, 1991—the effective date of the Act—are granted for the life of the author (or in the instance of joint authorship, until the death of the last surviving author). For the works created before June 1, 1991, only the authors who still owned their works as of 1991 have rights under VARA for the duration of the copyright term; generally, the copyright term is the life of the author plus 70 years. Thus, in the context of confederate monuments, only the authors who are still living or, for pre-June 1, 1991, works, who still owned their artwork as of June 1, 1991, have rights under VARA. (Technically, rights under VARA terminate in the calendar year “in which they would otherwise expire.” See 17 U.S.C. §106A(d)(4). Thus, it appears that the authors' estates or heirs may continue to hold rights under VARA until the end of the calendar year of the author's death.) The majority of confederate monuments, however, were created well before 1991, so how many of the monuments on public display were owned by their authors as of the effective date of VARA?

What about the works of deceased artists? VARA limits the duration of its protection to the life of the author for post-1991 works, but not for pre-1991 works if the author still held title as of the Act's effective date. Thus, it appears that if the author were alive as of 1991 but passed away subsequently and still held title to the confederate monument, the estate or the heirs of the artist may be able to enforce rights under VARA. Would the heirs have rights under VARA if the author never sold the artwork but passed away before 1991? There appears to be a lack of clarity on this issue, but the technical reading of the Act that requires the author to hold the title to the work, coupled with the general principle that moral rights are not descendible or alienable, suggests that the heirs might not have rights under VARA in this instance. However, the Act also specifically states that VARA does not preempt any rights or remedies under the common law or statutes of any state regarding rights extending beyond the life of the author. See 17 U.S.C. §302(f)(2)(C). It is therefore possible that the heirs may have broader remedies under state moral rights laws.

Are there additional criteria that artists must satisfy to ensure protection of their works from destruction? To receive protection from destruction, the artwork must be of “recognized stature,” a term not defined in the Act but one that might be satisfied by monuments on public display. In any event, art critics and other members of the art community will be called upon to offer their expert opinions as to whether the work is of recognized stature. Otherwise, artists must show that the destruction was “intentional or grossly negligent,” another criteria that might be met in the context of the intentional removal of confederate monuments. In addition, an artist must show that her honor or reputation was or will be prejudiced by the destruction or alteration of her work. Courts have interpreted this criterion as requiring the artist to demonstrate injury or damage to her good name, public esteem or reputation in the artistic community. This showing often is established by introducing expert evidence that the destroyed or mutilated work would damage the author's name by altering her artistic vision.

Assuming VARA applies, can the author object to relocation as opposed to the destruction of the work? VARA's right of integrity protects works from modification, distortion or mutilation, but the text of the statute does not specifically mention relocation. It has been argued that some artworks are “site-specific,” meaning that the location of the artwork is one the integral elements of the work. Thus, it logically follows that relocation of such site-specific art deprives the work of one of its essential components, thereby mutilating or distorting the work.

The First Circuit in Phillips v. Pembroke Real Estate, 459 F.3d 128 (1st Cir. 2006) rejected the argument that VARA may protect artworks against relocation, noting that 17 U.S.C. §106A (c)(2) excepts from the purview of VARA the modification of a work of visual art that is the result of the public presentation, including placement. See also, Board of Managers of Soho Int'l Arts Condo. v. City of New York, No. 01-1226, 2003 WL 21403333, at 10 (S.D.N.Y. 2003) (stating that VARA's objective “is not to preserve a work of visual art where it is, but rather to preserve the work as it is”). While most confederate monuments would not qualify as site-specific, some may be intentionally placed in specific locations to add meaning to the artwork. Yet, under this case law it does not appear that even site-specific works would receive VARA protection so long as the artwork may be removed without damage to it.

Art versus politics: While some protesters argue that monuments are not art but rather propaganda, it is clear that the effigies represent an expression of an idea fixed in a tangible form, and thus are covered by the Copyright Act. The issues of limitation on the freedom of expression for artwork and art censorship, including destruction of monuments, have plagued humanity for centuries. In modern times, many countries including the United States have protected authors' works from destruction and manipulation. Sculptures, statues and monuments are not alone. Literature, motion pictures and music often have been offensive to a portion of the population and have been subject to criticism, ridicule and physical destruction. Not long ago, book burning was common in societies that objected to the cultural, religious or political positions taken in such works. In the United States, the First Amendment has protected the author's right of expression. If the original work was entitled to protection, does the current political climate change the rights granted under the Copyright Act?

The debate as to what should be done with confederate monuments and other controversial works continues. Owners of works of visual art must be mindful of the authors' moral rights and be aware that violations of these rights may expose such owners to liability under the Copyright Act, including possible suits by the authors' heirs.

Jana S. Farmer is an associate and Adam Bialek is a partner at Wilson Elser.

Objects of art rarely leave anyone indifferent and frequently inspire intense reactions in society. In the context of the recent events in Charlottesville, Virginia, and throughout the country, the issue of confederate or other controversial monuments and statues has come once again to the forefront of national debate. While many government officials vocally support the freedoms of speech by protesters on every side of the debate, they nevertheless call for the removal from public spaces of controversial effigies dedicated to the Civil War era. As if this issue were not complicated enough, contemporary law adds another twist: Do the creators of confederate monuments or their heirs have a say in whether these works stay or go under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. §106A?

While some countries include moral rights in all authored works, the United States does not generally provide for such rights. However, in the United States, VARA was enacted to protect the moral rights of authors (“authors” refers to artists in the context of this article) in their works of visual art, including in works that the authors no longer own. Unlike other types of property, the physical ownership of a painting or a sculpture does not mean that the owners can do anything they want with them. Among the moral rights of authors codified by VARA is a right of integrity, which may preclude destruction or mutilation of artworks.

To which works of art does VARA apply? In general, VARA applies to paintings, drawings, prints, sculptures and photographs produced for exhibition, existing in a single copy or in a limited edition (200 or fewer, provided other conditions are followed). On its face, therefore, VARA applies to statues and murals, and may apply to other types of memorials, but perhaps not to memorial plaques. A work of visual art does not include “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.”

Notably, VARA also does not apply to works made for hire. The latter criteria may disqualify monuments that were specially ordered or commissioned, if the work is eligible to be a “work made for hire” and if the parties so agreed. In addition, VARA rights may be waived by the author, and modern contracts for the sale of art may contain such waivers of the author's moral rights. For the artwork created before VARA became effective, however, arguably no waivers may exist as there was nothing to waive.

What is the duration of VARA protection? VARA rights in the works created after June 1, 1991—the effective date of the Act—are granted for the life of the author (or in the instance of joint authorship, until the death of the last surviving author). For the works created before June 1, 1991, only the authors who still owned their works as of 1991 have rights under VARA for the duration of the copyright term; generally, the copyright term is the life of the author plus 70 years. Thus, in the context of confederate monuments, only the authors who are still living or, for pre-June 1, 1991, works, who still owned their artwork as of June 1, 1991, have rights under VARA. (Technically, rights under VARA terminate in the calendar year “in which they would otherwise expire.” See 17 U.S.C. §106A(d)(4). Thus, it appears that the authors' estates or heirs may continue to hold rights under VARA until the end of the calendar year of the author's death.) The majority of confederate monuments, however, were created well before 1991, so how many of the monuments on public display were owned by their authors as of the effective date of VARA?

What about the works of deceased artists? VARA limits the duration of its protection to the life of the author for post-1991 works, but not for pre-1991 works if the author still held title as of the Act's effective date. Thus, it appears that if the author were alive as of 1991 but passed away subsequently and still held title to the confederate monument, the estate or the heirs of the artist may be able to enforce rights under VARA. Would the heirs have rights under VARA if the author never sold the artwork but passed away before 1991? There appears to be a lack of clarity on this issue, but the technical reading of the Act that requires the author to hold the title to the work, coupled with the general principle that moral rights are not descendible or alienable, suggests that the heirs might not have rights under VARA in this instance. However, the Act also specifically states that VARA does not preempt any rights or remedies under the common law or statutes of any state regarding rights extending beyond the life of the author. See 17 U.S.C. §302(f)(2)(C). It is therefore possible that the heirs may have broader remedies under state moral rights laws.

Are there additional criteria that artists must satisfy to ensure protection of their works from destruction? To receive protection from destruction, the artwork must be of “recognized stature,” a term not defined in the Act but one that might be satisfied by monuments on public display. In any event, art critics and other members of the art community will be called upon to offer their expert opinions as to whether the work is of recognized stature. Otherwise, artists must show that the destruction was “intentional or grossly negligent,” another criteria that might be met in the context of the intentional removal of confederate monuments. In addition, an artist must show that her honor or reputation was or will be prejudiced by the destruction or alteration of her work. Courts have interpreted this criterion as requiring the artist to demonstrate injury or damage to her good name, public esteem or reputation in the artistic community. This showing often is established by introducing expert evidence that the destroyed or mutilated work would damage the author's name by altering her artistic vision.

Assuming VARA applies, can the author object to relocation as opposed to the destruction of the work? VARA's right of integrity protects works from modification, distortion or mutilation, but the text of the statute does not specifically mention relocation. It has been argued that some artworks are “site-specific,” meaning that the location of the artwork is one the integral elements of the work. Thus, it logically follows that relocation of such site-specific art deprives the work of one of its essential components, thereby mutilating or distorting the work.

The First Circuit in Phillips v. Pembroke Real Estate , 459 F.3d 128 (1st Cir. 2006) rejected the argument that VARA may protect artworks against relocation, noting that 17 U.S.C. §106A (c)(2) excepts from the purview of VARA the modification of a work of visual art that is the result of the public presentation, including placement. See also, Board of Managers of Soho Int'l Arts Condo. v. City of New York, No. 01-1226, 2003 WL 21403333, at 10 (S.D.N.Y. 2003) (stating that VARA's objective “is not to preserve a work of visual art where it is, but rather to preserve the work as it is”). While most confederate monuments would not qualify as site-specific, some may be intentionally placed in specific locations to add meaning to the artwork. Yet, under this case law it does not appear that even site-specific works would receive VARA protection so long as the artwork may be removed without damage to it.

Art versus politics: While some protesters argue that monuments are not art but rather propaganda, it is clear that the effigies represent an expression of an idea fixed in a tangible form, and thus are covered by the Copyright Act. The issues of limitation on the freedom of expression for artwork and art censorship, including destruction of monuments, have plagued humanity for centuries. In modern times, many countries including the United States have protected authors' works from destruction and manipulation. Sculptures, statues and monuments are not alone. Literature, motion pictures and music often have been offensive to a portion of the population and have been subject to criticism, ridicule and physical destruction. Not long ago, book burning was common in societies that objected to the cultural, religious or political positions taken in such works. In the United States, the First Amendment has protected the author's right of expression. If the original work was entitled to protection, does the current political climate change the rights granted under the Copyright Act?

The debate as to what should be done with confederate monuments and other controversial works continues. Owners of works of visual art must be mindful of the authors' moral rights and be aware that violations of these rights may expose such owners to liability under the Copyright Act, including possible suits by the authors' heirs.

Jana S. Farmer is an associate and Adam Bialek is a partner at Wilson Elser.