No such thing as a “normal” VARA case? Ha! Maybe not. But this one is taking place in Normal, Illinois.

The Town of Normal wants to destroy a mural that appears on a building, to make way for development. The mural was created by 13 artists. In April, the 13 artists sued the Town and the developer to prevent destruction of the work.

So far it sounds like a pretty “normal” case — right?

Now the twist. Attorneys for the Town noticed a potentially game-changing provision in the VARA statute. It provides:

(e) Transfer and Waiver.—(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified. In the case of a joint work prepared by two or more authors, a waiver of rights under this paragraph made by one such author waives such rights for all such authors. (17 USC 106A[e])

Whoa! Well played, lawyers for the Town. All you have to do is get one of the 13 artists to waive, and that waiver extinguishes rights for all the others!

And that’s exactly what they did. Lawyers for the Town got one of the artists to execute a waiver.

Game over? If I were the judge, I’d say no. Not so fast.

First, you have to establish that the mural is, in fact, a “joint work” as copyright law defines that term. It might be; or maybe it’s not. That’s an analysis that has to be briefed.

For the moment, though – assuming the mural does qualify as a “joint work” – I see a bigger flaw in the Town’s logic. Yes, the statute permits one joint author to waive VARA rights on behalf of all others. That’s pretty clear. It makes absolutely no sense, however, to permit such waiver after the work has been installed. The point of waiver (and of VARA itself) is to provide artists and property owners with clarity regarding their respective rights and obligations in connection with a work of visual art. If a single joint author can change that for the other joint authors — years down the road in response to the pressure/incentives of an opposing party in litigation — the remaining joint authors will have been divested of the clarity of expectations that VARA was intended to confer.

There’s precedent to support my view. In Carter v Helmsley-Spear, 852 F Supp 228, 237 (SDNY 1994) the court specifically stated:

Finally, an owner or his agent may, at the time such a work is installed, seek from the artist or artists written consent to waive their VARA rights.

That makes sense.

Permitting waiver now, does not.


#VARA #waiver #jointwork