Who has the right to destroy artwork? Artwork is usually made to be shared. Whether that is through selling pieces of artwork for private use or installing pieces as public art, the purpose is for others to enjoy the artwork. Once the work is sold, does the artist still have rights protecting the existence of the artwork? Or can the new owner destroy the work as they want, disregarding the purpose of the artwork and hard work of the artist? In some situations, the new owner may have the right to destroy the artwork. In other situations, the artist’s rights still exist even though there is another owner of the physical artwork.
Below, you will find two scenarios that demonstrate the basics behind an artist’s right to prevent the destruction of their artwork. But first, it is important that we recognize the law that gives artists rights to works after selling the artwork
What gives an artist rights after selling their work?
This legal basis to this right is the Visual Arts Rights Act of 1990, or VARA for short. VARA protects the artist’s rights to the integrity of certain works of visual art. This includes the right to prevent intentional distortions, mutilations, modifications, and destructions of works of recognized stature. VARA rights differ from those under copyright law which adds 70 years more than the author’s lifetime to the copyright protection lifetime of any given work. That is not the case here. VARA rights only last for the duration of the life of the author and those rights cannot be transferred.
Works of visual art are defined in VARA as a “painting, drawing, print, or sculpture, existing in a single, in a limited edition of 200 copies 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 consecutively numbers by the author and bear the signature or other identifying mark of the author; or 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 numbered by the author.”
This does not include things such as posters, maps, globes, motion pictures, books, electronic information services; any merchandising items, advertisements, promotional, work made for hire, and any work not copyrighted.
Scenario 1: Installation
What happens if one creates a sculpture and, say, a university buys it and installs it in such a way that if the building is ever renovated, the sculpture would likely suffer damage if not be destroyed altogether? Does the university have the right to destroy the sculptures in the process of renovation?
If the artist has signed a document agreeing to the installation that recognizes the risk of destruction by way of removal, the artist does not have the right to prevent destruction. This is because the artwork has been incorporated into the building in such a way that removing the work will cause damage, whether that is solely mutilation or complete destruction.
If instead, the sculpture could be removed without its damage or destruction, the artist would maintain their VARA rights. That is unless this right was contracted away, the owner made a diligent good faith effort to notify the artist, or the owner did in fact provide notice for the artist to remove the sculpture and within 90 days the artist did nothing.
Scenario 2: A Painting
What about if an artist sells an oil painting to an art aficionado with an extensive private art collection? Can that person decide on a whim to destroy their art collection with the artist’s piece in it because they got tired of the artworks?
If the artist’s rights have not been contracted away, then the VARA rights would still apply. While the art aficionado owns the physical artwork, the artist maintains their right to prevent the destruction of the artwork. As previously noted, VARA rights only last for the lifetime of the artist however and cannot be transferred. If the art aficionado were to damage the painting, the artist may be entitled to recover monetary damages.
Conclusion
As artists, it is important to know what rights you have to protect your physical creations. While these are very simple scenarios, they are good overviews of the basics behind the right to prevent destruction that artists maintain even after selling their artwork. However, please take note that the artwork in question has to fall under VARA’s definition of works of visual art to fall under these rights. There are also other requirements and restrictions. If you think that VARA protections may apply to your situation, consulting with a lawyer is recommended for further assistance.
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