Suppose a state hires a well known painter to create a mural on a state building. The instruction to the artist is to create something that reflects the history of the state. The final product does so accurately including a large Confederate flag and depictions of slavery. The state, sensitive to the negative impact of those symbols and scenes, decides the painting must be painted over or removed. The removal means destroying the painting. The state, as a courtesy, contacts the artist to inform her that the painting will be removed. The artists objects.
What happens? It can be complicated. The issue centers on the Visual Artists Rights Act (VARA) which amended the 1976 Copyright Act in 1990 (effective January 1, 1991). The Act applies to a variety or works including paintings and prohibits, in some cases, their “intentional distortion, mutilation, or modification.” The trick is figuring out exactly when the Act applies. For example, it does not apply to “works for hire.” A painting or mural created by an artist who is not a State employee is unlikely to be a work for hire so the objecting artist may very well have a legal basis for a complaint.
Since the Act did not exist until 1991 it would seem to be easy to say that it only applies to paintings that came into existence after that date. That is evidently not the case. The Copyright Act is no stranger to radioactivity and, as it turns out, VARA can protect paintings and other visual works that were created prior to 1991. A great deal may hinge on when the work was created and what, if anything, was transferred from the artist to the state at that time.
For example, the Act applies to works created before the effective date of VARA as long a the title has not been transferred by the author. Title, though, is a more difficult concept in copyright law than in other areas. The copyright to a work is distinct from owning the actual physical work itself. Consequently, the protection of a preexisting work under VARA may turn on what “title” means.
Another part of the legislation may hold an answer to whether the offending work may be removed. According to the Act, if the work “has been incorporated in or made part of a building” so that removing the work will result in its destruction and the author consented to the “installation of the work in the building” before the effective date of VARA, then the work may not be protected.
The net outcome is that VARA is technically retroactive but is drafted so as to not unduly burden the owner of the work or create a windfall for the artist. Or, at least, that appears to be the case.