Underwriting Manual: Artists' Rights

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Table of Contents

Underwriting Manual Subtopic

Artists' Rights

V 1

This section has been prepared to address recent issues in the real estate industry concerning the Visual Artists Rights Act of 1990 (“VARA”), 17 U.S.C. § 106A. Crain's Detroit Business reports that something called the Visual Artists Rights Act of 1990 led to a lawsuit by a muralist over redevelopment of a building with his work painted on a wall.  The law could have a direct impact on real estate investment in areas of Detroit or other cities where artists have used abandoned buildings as canvases. (http://www.crainsdetroit.com/article/20160110/NEWS/301109990/artists-rights-concerns-could-hinder-investors-in-city-real-estate )

VARA was the first federal copyright legislation to grant protection to moral rights.  Generally VARA covers limited, fine art categories of “works of visual art”: paintings, sculptures, drawings, prints, still photographs produced for exhibition.  Within this group, only single copies or signed and numbered limited editions of 200 or less are protected.  Under VARA, works of art that meet certain requirements afford their authors additional rights in works, regardless of any ownership rights in the work itself, or regardless of who holds the copyright to such work.  VARA rights are also subject to 17 U.S.C. § 119 (d) of the copyright law, which addresses problems arising where the work is part of a building.  Whereas the right of integrity should not apply if the artist either consented to the installation of the artwork before VARA’s effective date of December 1, 1990, or both the artist and the building owner executed a written agreement on or after such date, specifying that installation of the artwork may subject the work to damage by reason of removal.  For works created on or after December 1, 1990, VARA’s moral rights are granted for the life of the author, or in the case of a joint work, until the death of the last surviving author.    Please also be aware that some states have state statutes that may also provide additional protection to moral rights.  It is important to consider any state statutes affording protection to artists’ rights in their works.

If you are underwriting a transaction whereby the subject property has abandoned building(s) or the purchaser acquiring property with a building or other structure will be making alterations to such building or structure, you should consider VARA in your underwriting process.  For example, if a building owner wants to remove an artwork (i.e. a mural), which can be safely removed, it is important to consider any rights the artist may have under VARA.  If certain rights exist under VARA, many factors need to be considered, including whether a notice was sent to the artist and how such notice was sent.  You may request a copy of the notice sent to the artist regarding removal of an artwork and confirm that such notice was sent by registered mail to the artist and return receipt accepted by the artist, or if no evidence of receipt is available, confirm that the notice was sent by registered mail to the artist at his or her most recent address as recorded by the Register of Copyrights. 

Below are links to the Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code:http://www.loc.gov/copyright/title17/92chap1.html#106a.  You may also contact the Copyright Office.  Please see http://lcweb.loc.gov/copyright for more information.