Moral Rights & Confederate Monuments

A recent post by Cathy Gellis over at Techdirt asks but does not answer some interesting questions about the implications of the Visual Artists Rights Act of 1990 ("VARA") on the removal of confederate monuments. As Kimberly Isbell suggested on Twitter, the important question is what it would mean for VARA to apply, and how that might affect the debate over the proper scope of VARA and moral rights more broadly.

VARA approximately codifies some of the "moral rights" included in Article 6bis of the Berne Convention, which the United States had resisted for decades. The flashpoint was the controversy surrounding the removal of Richard Serra's sculpture "Tilted Arc" from Foley Federal Plaza. Tilted Arc was a 120 foot long, 12 foot high steel wall bisecting the plaza. While the art world loved Tilted Arc, the federal workers who had to walk around it decidedly did not, and wanted it gone. Serra argued that his sculpture was "site-specific" and could not be moved, because its meaning was tied to the location for which it was created and in which it was installed. Nevertheless, after protracted litigation, Tilted Ark was removed in 1989. The art world was apoplectic, and united behind VARA, which Congress enacted in 1990, at least in part responding to the claim that artists deserve a "moral right" to protect their work.

VARA amended the Copyright Act to grant authors of "works of visual art" certain rights of attribution and integrity. The attribution right gives visual artists the right to claim or disclaim authorship of a work, with certain conditions. And the right of integrity gives visual artists the right to prevent the modification or destruction of works of authorship they created, under certain circumstances. 

While VARA is part of the Copyright Act, only the authors of "works of visual art" receive VARA rights. The paradigmatic "work of visual art" is a unique object, but the statutory definition also includes to certain limited editions. Usually, copyright protects intangible works of authorship, not tangible copies of those works. But VARA rights protect particular copies of a work, especially the right of integrity. This is in tension with copyright doctrine, which typically treats tangible expressions or "copies" of works of authorship as personal property, subject to the "first sale" doctrine. For example, the right of integrity can enable artists to prevent the alteration or destruction of copies they no longer own.

In theory, VARA rights enable artists to protect their unique artistic expressions. But in practice, they are mostly irrelevant. While VARA rights last for the life of the author, they are not retroactive, and are waivable. As a consequence, VARA rights do not cover most works created before 1990, and savvy buyers of risky works always require a waiver.

Moreover, when it comes to discrete works of art, the interests of artists and owners are usually aligned. If a work of art is valuable, both the artist and the owner want to maintain attribution and integrity. And if a work of art is not valuable, no one cares. Or if the artist cares, everyone has an incentive to reach an amicable private solution.

As a result, VARA issues usually arise only in relation to "public art," or art installed in public or quasi-public spaces. If a work of visual art is installed in a particular location, and the government or a property owner wants to use that location for a different purpose, VARA rights may enable the artist to object, if the proposed use would require the alteration or removal of the artwork. Some property owners require artists to provide a waiver of VARA rights before the artwork is installed, which should foreclose any VARA claims. But many do not. In fact, many property owners - especially governments and charities - don't even realize that VARA rights exist.

The main hurdle for most artists is that VARA only prohibits destruction and modification, not removal. If a work can be physically removed from its location without damaging or destroying the work, then VARA does not apply. So, ironically, VARA wouldn't have applied to Serra's Tilted Arc, which was moved and remains in storage. And it doesn't apply to most artworks that are actually at risk of removal. The VARA right of integrity is invoked infrequently, and typically in relation to works that are difficult or impossible to sever from their physical location. For example, Chapman Kelley invoked the right of integrity in a failed attempt to prevent Chicago from altering his wildflower installation, and a group of graffiti artists have invoked it in order to protest the whitewashing and demolition of their works at Five Pointz.

But many artists have argued that the VARA "right of integrity" should also apply to "site-specific" works, or works that have a particular meaning because of their physical location. For example, Serra argued that the meaning of Tilted Arc depended on the location in which it was installed, because it "redefined the space" with the intention of causing people to think about governance. Serra believed that moving Tilted Arc to a new location would change its meaning, which is why he warehoused it and prohibits exhibition anywhere else.

So, how might VARA affect the recent controversies surrounding the removal and relocation or destruction of Confederate monuments? In most cases, it can't have any effect at all. VARA rights aren't retroactive, and as this popular chart illustrates, most Confederate monuments were installed long before VARA was enacted in 1990.

Of course, there are exceptions. Some Confederate monuments were installed after 1990 and may be subject to VARA, and VARA may also apply to monuments installed before 1990, if the artist retained title to the work. Presumably, many of those artists waived their VARA rights. But surely some did not? I would be surprised if there weren't at least one Confederate monument protected by VARA.

So, the question becomes whether removing and relocating such a monument would infringe the VARA right of integrity. Under the canonical interpretation, I doubt it. Confederate monuments are typically stand-alone works that can easily be removed in one piece without damaging the work. But what about "site-specificity"? Artists argue that the right of integrity should extend to the physical location of works, if the meaning of the work depends on its physical location. But many Confederate monuments were deliberately placed in civic spaces in order to communicate a particular message: endorsement of Jim Crow, segregation, and racism. If a Confederate monument is moved out of a place of civic honor, surely that affects its meaning.

I live in Lexington, Kentucky, where Mayor Jim Gray recently announced a plan to relocate two Confederate monuments installed in front of the old courthouse and on the grounds of a former slave market. The monuments were placed in that location for obvious reasons, and their meaning depends on their location. Moving them to a new location will necessarily change their meaning. If they are reinstalled in front of the sewage treatment plant, surely that would give them a new meaning.

While the Lexington monuments are old and almost certainly not protected by VARA, they pose a challenge to the argument that the right of integrity should protect "site-specificity." In previous cases, the site-specific meaning of works was at worst innocuous. But Confederate monuments show that it can also be pernicious. Why shouldn't governments be able to remove and relocate monuments that express ideas they reject? Should copyright law force governments to preserve such monuments?

 

 

Comments

[Steve Lubet]

This is a great post.

[Patrick S. O'Donnell]

I think this is but one in a series of intellectually sophisticated and provocative posts (within their respective fields of research) by Brian (I sometimes see things rather differently than him, owing in part to the fact that I'm far too his Left, politically speaking, important from my end if only because I rarely find anyone so located who has anything intellectually interesting, let alone intellectually stirring, to say).

[[M][a][c][K]]

Interesting argument, but as a practical matter, since the vast majority of confederate monuments were installed before 1920, and apparently made by jobbing Northern foundries (some Confederate soldier's statues were apparently Union soldiers with substituted CSA belt-buckle and badges), it seems likely that an artist or artists descendant possessing the moral rights cannot be found, or is unlikely to assert them.

[Brian Frye]

Steve & Patrick,

Thank you so much for your kind words! I have always found your respective contributions quite illuminating myself.

Mack,

I think you are right on the merits with respect to the overwhelming majority of monuments, although as I observe, it is at least possible that one or more are subject to VARA. But even if VARA doesn't actually apply to any of these monuments, I think the potential ought to give us pause about the application of the right of integrity to the location of "site-specific" works. It is one thing to say that works should not be destroyed. It is another thing entirely to say they should never be moved.

BLF

[[M][a][c][K]]

@BLF Except that most of the statues and monuments were mass produced by jobbing foundries and are not site specific.

http://www.nhregister.com/connecticut/article/Connecticut-was-home-to-leading-manufacturer-of-11355708.php

I mean, it's an interesting idea, but the facts are mostly not there.

[Brian Frye]

Mack,

Fair point, but I think it depends on the definition & meaning of "site-specific," which in my experience is often stretched according to the circumstances. Confederate monuments are not "site-specific" in the sense that they can physically be moved to a different location. But I don't think that's what most artists mean by "site-specific." Tilted Arc could also be moved - and it was! But Serra argues that the meaning of the work depends on the location in which it was originally installed. Do alternative potential locations that "preserve the meaning" exist? Who knows, I guess you have to ask Serra!

I think Confederate monuments are "site-specific" in much the same way. Their intended meaning depends on their location in a place of civic pride. Sure, they can be moved. But that would change their meaning. For example, Hungarians moved Soviet-era monuments to "Monument Park" outside of Budapest, where they make fun of them. The move was intended to denigrate what the monuments represent & I think it succeeded.

But at the end of the day, I agree that there is no legal claim available for the overwhelming majority of the monuments, even under a "site-specific" claim. But maybe one or two recently erected ones? It's at least possible.

BLF

[[M][a][c][K]]

I think site-specific means that the monument was designed for its specific site. Here we are talking (mostly) about mass produced gimcrack, to be stuck without modification in any handy intersection, park or square.

I find this issue a lot with IP, particularly registered designs - you have an idea that in principle is good, but the facts don't line up.

I think it would be a rare and unlikely Confederate memorial that you could make the argument for - perhaps this particularly ghastly one Oerected on the sculptors own private land) https://goo.gl/images/t8P6bj

[[M][a][c][K]]

By the way, most of these were created by a jobbing sculptor (for mass production) at a jobbing foundry - the choice of location was from a Wives/Daughters of the Confederacy group - the sculptor had, as far as anyone knows, no idea of the intended location. And since the site specific refers to the artist's creation for a site, knowing near identical copies could be sold anywhere from Armpitsville to Crotchtown, to be stuck in any handy space probably does not meet the artist coming up with a site specific design.

The argument might work better for the plinth - which was probably the work of the local monumental stone-mason (tombstone-maker) - but then put a different statue on it - say Martin Luther King.