face of numerous judicial and scholarly pronouncements….”); 5 Patry § 16:3 (The American position that existing federal and state laws satisfied minimum Berne obligations created “a web of fictional compliance.”). “[A] question of international credibility existed,” and “some Berne co-Unionists … expressed doubts regarding the accuracy or sincerity of the U.S. declaration that its law already afforded a degree of moral rights protection equivalent to Berne standards.” Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 Colum.-VLA J.L. & Arts 477, 478–79 (1990). VARA was enacted to fill this perceived gap, but its moral-rights protection is quite a bit narrower than its European counterpart.
- 2. VARA’s scope
VARA amended the Copyright Act and provides a measure of protection for a limited set of moral rights falling under the rubric of “rights of attribution” and “rights of integrity”—but only for artists who create specific types of visual art. 17 U.S.C. § 106A(a). The statutory coverage is limited to paintings, drawings, prints, sculptures, and photographs created for exhibition existing in a single copy or a limited edition of 200 or less. See id. § 101 (defining “work of visual art”). The rights conferred by the statute exist independently of property rights; the artist retains them even after he no longer holds title to his work. Id. § 106A(a).
More specifically, VARA’s attribution and integrity rights are as follows:
(a) Rights of attribution and integrity. Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—
- (1) shall have the right—
- (A) to claim authorship of that work, and
- (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
- (2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and
- (3) subject to the limitations set forth in section 113(d), shall have the right—
- (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
- (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
17 U.S.C. § 106A(a) (emphasis added). At issue here is the right of integrity conferred by subsection (a)(3)(A), which precludes any intentional modification or distortion of a work of visual art that “would be prejudicial to [the artist’s] honor or reputation.”
A qualifying “work of visual art” is defined as:
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are con-
