Cite as 635 F.3d 290 (7th Cir. 2011)
secutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively number by the author.
Id. § 101 (emphasis added). This definition also contains a number of specific exclusions: e.g., posters, maps, and globes; books, newspapers, magazines, and other periodicals; “motion picture[s] or other audiovisual work[s]”; merchandising and promotional materials; “any work made for hire”; and “any work not subject to copyright protection under this title.” Id.
This last exclusion simply reinforces the point that VARA supplements general copyright protection; to qualify for moral rights under VARA, a work must first satisfy basic copyright standards. Under the Copyright Act of 1976, copyright subsists in “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.” Id. § 102(a). “Works of authorship” include “pictorial, graphic, and sculptural works.” Id. § 102(a)(5). VARA’s definition of “work of visual art” is limited to a narrow subset of this broader universe of “pictorial, graphic, and sculptural works” that are otherwise eligible for copyright; only a select few categories of art get the extra protection provided by the moral-rights concept. 5 Patry § 16:7 (2010) (“Protected ‘works of visual art’ is a narrower subcategory of ‘pictorial, graphic, and sculptural works,’ protected in section 102(a)(5).”).
Several exceptions limit the scope of the rights granted under the statute:
(c) Exceptions. (1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A).
(2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence.
17 U.S.C. § 106A(c) (emphasis added). The second of these—the “public presentation” exception—is at issue here. Another exception invoked by the Park District is found in a different section of the Copyright Act that defines the scope of a copyright owner’s rights:
(d)(1) In a case in which—
- (A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and
- (B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal,
then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.
