(Image is “Fine Wind, Clear Morning” by Katsushika Hokusai [Public domain], via Wikimedia Commons)
December 17, 2013 By: Jon Cohen, Attorney at Law
Last Friday I was undergoing a medical test and I chatted with the nice young technician about music. It turns out we both enjoy instrumental music. She mentioned she likes listening to the music while painting in oils. I asked her if she was showing her work yet. Not yet, she replied. I urged her to register the copyright in each of her artworks, explaining why it’s important. If someone misappropriates her works, I said, she can recover statutory damages and attorneys’ fees.
The conversation stuck with me, leading to thoughts (and a bit of digging) on the scope of copyright protection for visual works.
Visual artists already enjoy a certain degree of protection beyond that of other copyright holders by virtue of VARA (the Visual Arts Rights Act, 17 United States Code § 106A, enacted in 1990). VARA protects the moral rights of an artist that exist independently from the copyright in the artist’s works, and is designed, among other things, to provide injunctive relief and damage recovery for distortion, mutilation or modification of a visual work of art. At stake are the artist’s rights of integrity in the work and the artists own connection to it, or the general attribution of the work to the artist.
The artist’s rights VARA protects have been judicially identified as independent of the rights protected by the Copyright Act (see Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel, 593 F.3d 38, 49 (1st Cir. 2010)). This body of law is in no way new, given the adoption of the act more than twenty years ago.
Soon, however, visual artists may be granted even greater rights; rights to share in the profits generated by future sales of their works. As Patricia Cohen reported in The New York Times on Monday, December 16, 2013, the United States Copyright Office is considering adopting the droit de suite principle of allowing visual artists to receive royalties for works whose future sales garner profits beyond those of the initial sale of the work.
This development bears watching. It’s particularly interesting in light of the Central District of California’s overturning of California Civil Code § 986 last year in Estate of Graham v. Sotheby’s Inc., 860 F.Supp.2d 1117, 1126 (C.D.Cal. 2012). Section 986 was a state droit de suite statute that had provided royalties to artists through the California Arts Council for many years (see Patricia Cohen’s article in the New York Times here; see also the statement on the California Arts Council site, noting the appeal in the aforementioned action).