JAIC 1997, Volume 36, Number 2, Article 6 (pp. 165 to 179)
JAIC online
Journal of the American Institute for Conservation
JAIC 1997, Volume 36, Number 2, Article 6 (pp. 165 to 179)

ART CONSERVATION AND THE LEGAL OBLIGATION TO PRESERVE ARTISTIC INTENT

ANN M. GARFINKLE, JANET FRIES, DANIEL LOPEZ, & LAURA POSSESSKY

ABSTRACT—This article explains the basic principles of the Visual Artists Rights Act (VARA) of 1990 and how the new rights it provides to artists may affect the work of conservators. To aid in this explanation, a brief overview is provided on the evolution of copyright law in Western legal thought and the development of moral rights. After a general background on the adoption of moral rights in the United States through VARA, the article addresses the specific provisions of this statute and their potential impact on the work of conservators. Because an artist may seek other legal remedies against a conservator in addition to VARA if restoration of a work is not successful, the article also looks at the existence of “VARA-like” protections in state and federal laws, the effect of VARA on similar preexisting state provisions, and the possibility that VARA has rendered such provisions invalid. The article concludes with some recommendations to help conservators to avoid incurring legal liability.

TITRE—La Restauration des Oeuvres d'Art et l'Obligation Légale de Préserver l'Intention de l'Artiste. RÉSUMÉ—Cet article explique les principes de base de la loi sur les droits des artistes visuels (Visual Artists Rights Act, VARA) entériné par le gouvernement américain en 1990, et comment les nouveaux droits que la loi octroie aux artistes peuvent avoir un impact sur le travail des restaurateurs. Un bref aperçu sur l'évolution de la loi sur les droits d'anteur dans la pensée légale occidentale et sur le développement des droits moraux est donné, suivi d'une revue générale sur l'adoption des droits moraux dans le droit américain, au moyen du VARA. Cet article examine ensuite les dispositions spécifiques de cette loi et leur impact possible sur le travail des restaurateurs. Parce qu'un artiste peut avoir recours à des moyens légaux autres que ceux de cette loi porter plaint contre le restaurateur en justice sí la restauration est défaillante, les auteurs examinent aussi les systèmes de protection similaires à cette loi qui sont déjà présents dans les lois fédérales et étatiques, les effets de la loi sur ces systèmes pré-existants, et si la loi a invalidé de telles dispositions. Cet article se termine par quelques recommandations qui aideront les restaurateurs à éviter des poursuites légales.

TITULO—Conservación de obras de arte y la obligación legal de preservar la intención artística. RESUMEN—Este articulo explica los principios básicos del Acta de Derechos de los Artistas Visuales (VARA), la cual fue aprobada en 1990, y como los nuevos derechos que esta imparte a los artistas pueden impactar el trabajo de los conservadores. Para facilitar esta explicación, se incluye una breve revisión de la evolución de la ley de derechos de autor en el pensamiento legal occidental y el desarrollo de los derechos morales. Después de una revisión general de los antecedentes de la adopción de los derechos morales en Estados Unidos a través de VARA, el articulo presenta las medidas especificas de este estatuto y su impacto potencial en el trabajo de los conservadores. Debido a que un artista puede recurrir a otras soluciones legales ademas de VARA en contra de un conservador si la restauración de un trabajo no es exitosa, el articulo también trata sobre la existencia de protecciones similares a VARA en leyes estatales y federales, el efecto que VARA tiene en medidas estatales similares previas y la posibilidad de que VARA haya invali-dado dichas medidas. El articulo concluye con algunas recomendaciones para ayudar a los conservadores a evitar problemas legales.


1 INTRODUCTION

In December 1990, after more than 10 years of debate, Congress passed the Visual Artists Rights Act (VARA), representing one of the most significant changes in American copyright law in its 200-year history. This law granted new rights for American artists called “moral rights”: the “right of attribution,” which grants artists the right to be identified with their works, and the “right of integrity,” which grants artists the right to protect their works from modification and destruction. With the introduction of these new rights, the passage of this law has imposed a legal obligation on art conservators, collectors, and others to preserve the artistic intent of the artist. While preserving artistic intent is not new to conservators, the consequences of failing to preserve artistic intent are now more costly. Therefore, it is vital that conservators understand VARA and how it affects their profession.


2 HISTORICAL BACKGROUND

A copyright is a proprietary interest that vests in a creator from the moment an idea is fixed in a tangible medium of expression (Copyright Act of 1976). In the United States, copyright law is derived from Article 1, Section 8 of the U.S. Constitution, which delegates Congress “to promote the useful arts and sciences.” By this authority, Congress has statutorily granted proprietary rights in the expression of original ideas. At its core, copyright law is actually a group of five distinct rights. Artists (“authors” under the Copyright Act) and their estates, for 50 years after the artist's death, have the exclusive rights to reproduce, prepare adaptations (“derivative works”), distribute, perform, and display their original works (Copyright Act of 1976).

Generally, the scope of copyright protection for a work of art depends upon the circumstances surrounding the creation of a work and the country in which the work is created. Variations in the degree of proprietary interest exist largely because of variations in the underlying policy for having such rights. In the United States, the underlying premise of copyright law is largely economic: a proprietary interest is granted in a work as an incentive to promote progress and innovation. The notion is that if an artist knows that a defendable proprietary interest exists in a work of art and that he or she can prevent others from copying it, then the artist will be more willing to “publish” the idea or make the idea known to the public. On the other hand, limitations on copyrights are imposed because if no one could use preexisting concepts to develop new works for fear of intruding on another's proprietary interest, innovation would be inhibited. Copyright laws that imposed no time limitations would have the ironic effect of impeding the free flow of ideas. An example of a situation in which such limitations prove economically beneficial occurs when an employer hires an artist as an employee to create original art. When a work is created by an artist within the scope of the artist's employment, the work is a “work made for hire.” The artist retains no proprietary interest in a work made for hire; instead, the employer holds the copyrights. This limit on copyright ownership is considered beneficial because it would be unduly burdensome for an employer to conduct business if the employer needed to seek permission from every employee every time the employer sought to use a work.

While U.S. copyright law is based on economic incentives, other countries, such as France, Italy, and Germany, have a natural rights conception of copyright law whereby an artist has inherent or natural rights in a work because that work is an extension of the creator's personality. This natural rights theory is the basis of moral rights that emerged during the French Revolution and developed as an independent legal doctrine in the late 19th century. As exemplified in French law, a moral right is “an exclusive incorporeal property right [of the] author of an intellectual work … by the mere fact of its creation” (France, Law of March 11, 1957). Under French law, as in many countries, moral rights are recognized concurrently with economic rights but remain separate and distinct.

These “moral rights” are the centerpiece of VARA. Although VARA grants rights that Europeans have recognized for more than 100 years, these American moral rights have been grafted onto the economic conception of copyrights and are not recognized as inherent natural rights. Because the rights granted in VARA were drafted by Congress, they are only statutory and are therefore limited to the scope as defined in the statute.


3 THE BERNE CONVENTION AND INTERNATIONAL INFLUENCES

Adoption of moral rights in this country was a result of the United States' joining the Berne Convention for the Protection of Literary and Artistic Works in 1988. The Berne Convention, established in 1886 in Berne, Switzerland, is the oldest multilateral copyright treaty and is administered by the World Intellectual Property Organization (WIPO), an agency of the United Nations. Article 6bis of the Berne Convention recognizes the rights of “attribution” and “integrity.” This provision states that an author “shall have the right to claim authorship of the work [right of attribution] and to object to any distortion, mutilation, or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation [the right of integrity]” (Berne Convention 1978). This provision provides a more narrowly defined scope of moral rights than the laws of some of the signatory countries (Recht 1969).1

Moral rights under the Berne Convention are recognized independently of the artist's economic rights and continue to remain with the artist even after the transfer of the economic rights (e.g., sale of the work of art) (Berne Convention 1978). The Berne Convention also recognizes the existence of moral rights after the death of the artist at least until the expiration of the economic rights, except in those countries that do not provide for moral rights protection after the death of the artist (Berne Convention 1978). This exclusionary clause was adopted to offset the disparities in national laws (Françon 1992).

Despite acceptance of the Berne provisions by many countries, the United States did not sign the Berne Convention until 1988 (effective March 1, 1989). The refusal to become a signatory was due largely to disagreement over the acknowledgment of moral rights. The United States had developed alternative solutions to the international intellectual property problems precisely because it did not want to recognize moral rights. These solutions consisted of a combination of bilateral agreements, other multilateral agreements, and the back-door provision of the Berne Convention, which allows the extension of Berne protection to works from non-Berne countries if the works are published simultaneously in that country and in a country that has signed the Berne Convention (Françon 1992).

The primary motivation for the United States to sign the Berne Convention arose from increasing pressures of the growing world economy to develop a more active stance on international intellectual property enforcement, particularly with the thriving piracy of U.S. copyrighted products (House 1986). It was believed that adherence to the Berne Convention would provide greater protection than that obtained through the alternatives that the United States had previously pursued.

Another motivation for the United States to join the Berne Convention was to strengthen the credibility of this country's position in trade negotiations for the General Agreement on Tariffs and Trade (GATT) and to forward a major trade policy goal to formulate an intellectual property code within GATT. The final GATT agreement—which included provisions for intellectual property, formally known as Trade Related Measures on Intellectual Property (TRIPS)—required adherence to the Berne Convention (General Agreement on Tariffs and Trade 1994). The United States recognized that its position supporting Berne-level copyright standards in TRIPS contradicted the fact that we were not a member of the Berne Union (House 1986). Effectively, the United States had to sign onto Berne to gain credibility in GATT.

For these two reasons, the Congress took steps to adopt Berne. Deliberations began on the Berne Convention Implementation Act (BCIA), the enabling legislation. The issue of moral rights raised one of the more intense debates. Congress, however, realizing that a stalemate on the moral rights issue could hold up the adoption of the Berne Convention and consequently hamper the GATT negotiations, dropped the issue of adopting moral rights from the BCIA. With the blessing of the head of WIPO, Congress declared that U.S. law sufficiently recognized moral rights in its existing laws and so modification of the copyright code was not necessary. Thus, the United States signed BCIA in 1988 without enacting moral rights at home.

The rationale of moral rights opponents was that the United States already had implied moral rights through its statutory and common law systems and that any new laws were unnecessary. Their position was that de facto recognition of moral rights is found in contract, trademark, and tort laws. As discussed later in this article, conservators need to be aware of these other rights because even if an aggrieved artist waives the rights conferred by VARA, he or she may still be able to assert other claims against the conservator.


4 MORAL RIGHTS UNDER THE FEDERAL STATUTE


4.1 INTRODUCTION

Despite attempts to draw a clear line between economic and moral concerns, all art professionals realize that reputational issues affect the economics of art. VARA does have economic impact, but that is not its focus. Rather, VARA focuses on the protection of artists' personal relationships with their art, on artists' right to be recognized, or to choose not to be recognized, as creators of their work (the “right of attribution”), and on artists' right to prevent harm to their work (the “right of integrity”). These rights also become economic in the sense that they are bargaining chips that potentially give artists additional power in negotiations for projects. This shift in economic position may affect conservators as well.


4.2 “WORK OF VISUAL ART” UNDER VARA

Under VARA, the right of attribution and the right of integrity are defined very narrowly. In Europe, moral rights are recognized for most creations in many different artistic disciplines, but these rights under U.S. law are restricted solely to a “work of visual art.” According to VARA, a “work of visual art” is:

  1. “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
  2. 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” (Visual Artists Rights Act 1990).

VARA expressly excludes “any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture, or other audiovisual work, book, magazine, newspaper, periodical, database, electronic information service, electronic publication, or similar publication.”

Even if a work falls within the definition of a “work of visual art,” VARA does not apply if the work is not subject to copyright protection under the Copyright Act or is a “work made for hire” (Visual Artists Rights Act 1990). Further, these federal rights do not apply to reproductions of the work, and mere reproductions of the work do not violate either of these rights. (However, it should be noted that New York does grant protection to reproductions.) Despite the narrow application of these new rights, the conservator may be confronted with moral rights issues since it is often the narrow band of works to which VARA applies that require conservation.


4.3 SCOPE OF THE RIGHTS OF ATTRIBUTION AND INTEGRITY

Once it is determined that an artist's work falls within the definition of a “work of visual art” and the rights of attribution and integrity apply, it is important to know exactly what the scope of these rights is and under what circumstances a conservator may be found to violate these rights. If the rights of attribution and integrity apply to a work, they are given exclusively to the artist who created the work (VARA 1990). Only the artist can assert moral rights, not collectors, gallery owners, dealers, or museums. When a work was created determines the extent of moral rights protection for that work. Essentially, there are two categories of works: works created after the effective date of VARA (June 1, 1991) and works created prior to that date. Full moral rights protection exists for all works of visual art created after June 1, 1991, and last for the life of the artist. For works created prior to VARA, protection exists only if the artist still has title in the work and exists only for the duration of copyright protection (VARA 1990).

The right of attribution gives an artist the right: (1) to claim or disclaim authorship of a created work; (2) to prevent the use of his or her name in association with a work that he or she did not create; and (3) to prevent the use of his or her name as the artist of a work that has been modified in such a manner that would be prejudicial to the artist's honor or reputation. This right is also referred to as the right of “paternity,” which recognizes that the relationship between artists and their work is analogous to the personal and legal relationship between parents and legitimate children. A conservator must be concerned with an artist exerting this right, especially if the artist believes that the result of the work of a conservator is prejudicial to his or her honor or reputation.

The right of integrity gives artists the right: (1) to prevent intentional distortion, mutilation, or other modification of their work that is pre-judicial to their honor and reputation; and (2) to prevent any intentional or grossly negligent destruction of a work of recognized stature (VARA 1990). The statute does not define “recognized stature” or “harm to honor or reputation.” When a statutory definition does not exist for relevant terms, the judiciary has the role of interpreting the terms in a manner consistent with the intent of Congress. The right of integrity affects conservators particularly because conservation frequently involves works that are widely considered works of recognized stature or are created by renowned artists. Within statutory constraints, if poorly done conservation is construed as a mutilation or destruction of a work, the conservator will be liable to the artist under VARA.


4.4 THE RIGHT OF INTEGRITY: GROSS NEGLIGENCE OR INTENTIONAL HARM

Under VARA, a conservator may be liable to an artist for the intentional or grossly negligent destruction of a work of recognized stature. However, if an artist has the right to protect a work from grossly negligent or intentional destruction, a question of fact arises as to whether the conservator's performance falls within those terms. VARA expressly states that modifications resulting from the passage of time and the natural aging process of a work are not considered a distortion or mutilation. VARA also states that a modification resulting from conservation or public presentation is not a mutilation or destruction unless the modification is caused by gross negligence. In short, a conservator has violated an artist's right of integrity if the conservator, intentionally or with gross negligence, damages a work of recognized stature or intentionally modifies a work in a way that causes harm to the artist's honor or reputation. A full understanding of what this means requires the definition of terms and some background on negligence as defined in the law of torts.

The standards set forth in VARA—“intentional” and “gross negligence”—are derived from tort law. A “tort,” derived from the Latin torquere, meaning “to twist,” is an act that causes harm to a person or that person's property, a civil wrong. To determine when harmful conduct requires compensation to the injured person, courts will generally follow the basic principle that reasonable people owe each other a duty of care. When that duty is not upheld, when it is “breached” and harm results, the wrongdoer is liable for his or her conduct. A breach of this duty of care is referred to as “negligence,” which is the “failure to use such care as a reasonably prudent and careful person would use under similar circumstances” (Black's Law Dictionary 1990). When the person with the duty of care is a professional, the duty is higher than that for the average “reasonable person.” For conservators handling valuable works of art, great care is reasonable. “Gross negligence” is the failure to perform a manifest duty in “reckless disregard of the consequences as affecting the life or property of another” (Black's Law Dictionary 1990).

“Intentional destruction” does not necessarily mean its conventional reading of an intent to destroy or modify a work. An artist or collector may claim an intentional destruction or modification by asserting the tort of conversion. A “conversion” is defined as “an unauthorized assumption and exercise of the right of ownership over goods … belonging to another, to the alteration of their condition or the exclusion of the owner's rights” (Black's Law Dictionary 1990). A conversion claim could arise, for example, if a conservator destroys or fundamentally alters the work without the knowledge, consent, or approval of the owner and such destruction or alteration so substantially diminishes the value of the work as to render it worthless. The “intent” here refers to the conservator's intent to conserve or repair the work without the knowledge or consent of the owner. In such a case, courts have held that it is fair to require the defendant to pay the plaintiff the fair market value of the converted property. The enforcement of a conversion action can be viewed as a “forced sale,” where the convertor is required to pay the full value of the converted property, not merely the diminution in value caused by the harm. If the conservator can repair the alteration, however, there may not be a conversion of the property.

These varying degrees, or “standards,” of liability—negligence, gross negligence, and intent—are increasing degrees of severity by which the tort may be measured. An intentional wrongdoing is more severely looked upon by courts than a negligent tort. If an injured person proves that harm was directly caused by the wrongdoer's intentional or negligent act and that the harm resulted in actual damage, the injured person can recover money from a wrongdoer.

The prudent conservator should err on the side of caution and work with great care. For example, if a conservator is repairing a work that he or she has repaired previously, the conservator should not only consult the notes and tests taken for the previous repairs but also test the area again and not rely on earlier notes or tests. The conservator may have made an error in the original testing or recorded inaccurate data. By taking these actions, the conservator is above the negligence line and plainly within the scope of reasonable care. A conservator should never take shortcuts, even if he or she reasonably believes that they will not cause harm to the work.

If an artist can prove that a conservator damaged a work due to the conservator's gross negligence, in addition to a claim for damages to integrity, VARA allows the artist to deny attribution. Such a denial would mean that, even though the artist originally created the work, the artist would be entitled to deny authorship and prevent others from attributing that work to him or her. The economic effect of such a claim could mean the loss of a million-dollar investment and a lawsuit seeking damages from the conservator or the conservator's employer. The artist could also sue for damages to his or her honor or reputation. Both of these actions could include statutory damages and attorneys' fees.


4.5 THE FIRST CASE UNDER VARA

To further complicate matters for conservators and others seeking to understand how these new provisions affect them, the extent to which the provisions apply is not entirely clear. Undefined terms like “work of recognized stature” or “harm to honor or reputation” raise a number of questions about the actual applicability of these rights. A perfect example of this lack of clarity is the first case to be brought by artists asserting federal moral rights claims, Carter v. Helmsley-Spear, Inc.

This case was brought in U.S. District Court by three artists working collaboratively (they call themselves “the three Js”), who contracted with the owners of a building to design and create a permanent sculpture in the lobby of the building. The artists were creating a huge sculpture to fill the 18,000-square-foot lobby of the defendants' multiuse warehouse in Queens, New York. The artwork consisted of 50 tons of recycled cars, buses, sinks, and abandoned appliances. (For a photograph, see the May 1994 issue of Art News.) Two and one-half years after work began on the sculpture, the building owners filed for bankruptcy. The entity with the rights over the real estate demanded that the artists leave the property and prohibited them from entering the building to complete their work of art.

When the artists learned that there were plans to remove the sculpture, they asserted their moral rights under VARA and asked the court for injunctive relief to prevent its destruction and removal while trial was pending. The U.S. District Court granted a preliminary injunction. Following the trial, the court held that the sculpture was protected under VARA and consequently the three Js were entitled to a permanent injunction to prevent the building owners from distorting, mutilating, modifying, destroying, or removing the work. The U.S. Court of Appeals for the Second Circuit reversed this decision and held that the three Js, due to the terms and conditions of their particular employment, were not entitled to the protection of VARA.

In the Carter case, the district court determined that VARA protects the artist's moral right of integrity even when the party that owns the work of art no longer wants it, while the court of appeals reversed it on other grounds. After this case, all building owners, including museums and galleries, will need to take precautions when installing “permanent” exhibits. Prudent conservators should not attempt to conserve a work of visual art by a living artist unless there is a written agreement signed by the artist waiving moral rights and expressly permitting the conservation. Many museums already have this rule for staff conservators.

For a sculpture to be protected by VARA, a court must determine whether destruction would harm the reputation of the artist and whether the work was a “work of recognized stature.” In Carter, the court stated that “reputation” is readily understood as the “condition of being worthy or meritorious.” To establish “reputation,” an artist must prove (with the testimony of art experts) that alterations to the work would damage an existing reputation that is embodied in the protected work. To determine “recognized stature,” an artist must prove that the visual art in question “is viewed as meritorious” and that experts or other members of the artistic community are familiar with the visual artist. As demonstrated in Carter, establishing definitions turn on the testimony of experts and members of the artistic community. In order to make these determinations each side called expert witnesses to testify as to the reputation of the artists and the stature of the work.

When the case was appealed, the U.S. Court of Appeals for the Second Circuit dismissed the moral rights claim on the grounds that the work fell within the Copyright Act's definition of a “work made for hire.” According to the court of appeals, the nature of the relationship between the artists and the original building owners resembled that of an employer-employee relationship, and the artists' sculpture was a work made for hire and not a commissioned work. Since Congress expressly excluded works made for hire from VARA protection, the artists could not claim a violation of their moral rights.

Since Carter, other cases brought by artists asserting VARA rights have further defined the scope of the provisions. These cases include Pavia v. 1120 Avenue of the Americas Associates, in which the dismantling of a sculpture prior to 1991 was found by the court not to fall under VARA protection because the damage occurred before the statute was enacted. Because VARA is so narrowly defined, conservators may find that they may use VARA as a defense against similar alternative claims, discussed in the next section, on the basis that VARA preempts these other claims.


4.6 REMEDIES UNDER THE STATUTE

If a conservator is held liable under VARA, he or she may be required to compensate the aggrieved artist in a variety of ways. VARA grants artists the full range of remedies allowed under the copyright statute. Artists may receive monetary compensation in the form of actual damages (which must be proved by the artist), statutory damages of up to $100,000 for each willful infringement of the artist's moral rights, and costs and attorneys' fees. Equitable remedies include injunctive relief, seizure, forfeiture, and impounding. Additional remedies exist under various state laws that are similar to federal remedies, but they will, of course, vary from state to state.

The sculptor Judy Pfaff sued the Denver Art Museum for $175,000 for the intentional destruction of her work, Ciello. This 110-foot-long sculpture of wires, plastic tubes, and a large red ball was originally installed in Denver. As agreed, it was then dismantled and shipped to Columbus, Ohio. Pfaff left instructions with the Denver Art Museum for the disassembly and packing of the work, but when she arrived in Columbus she found that the work had been haphazardly cut up, crated, and shipped to Columbus where it arrived, in her words, as “kindling” and “shards.”


5 OTHER DOCTRINES PROVIDING PROTECTION IN THE UNITED STATES


5.1 INTRODUCTION

As discussed earlier in this article, the United States did not initially adopt moral rights laws because similar legal protection was available under a combination of federal law (the Lanham Act), common-law doctrines, and state moral rights legislation. Even in situations where an artist cannot rely on VARA, the artist may still exert these other legal responses in an effort to seek remedy for an alleged damage. For this reason conservators need to be aware of the grounds of liability in addition to VARA. This article seeks only to give an overview of the issues to raise awareness for the conservator; it is not an in-depth discussion of each of the potential claims that could be brought by artists when a conflict arises over a conservator's work.


5.2 OTHER FEDERAL SOLUTIONS: THE LANHAM ACT

Section 43(a) of the Lanham Act, a federal statute regulating trademarks, prohibits “palming off” or “passing off,” providing another source of protection for artists. This provision states that if someone sells goods or services and falsely designates the origin or falsely describes or represents what those goods or services are, that person may be liable to another who believes to have been harmed by such action (Lanham Act 1946). A conservator may be exposed to liability under this provision through “reverse passing off.” Generally, a reverse passing off is the unauthorized removal or obliteration of the original trademark on goods produced by another before the goods are sold. When someone other than the artist is credited for the work created by the artist, it is a false designation of origin or a false representation within the meaning of section 43(a) (Nimmer and Nimmer 1994). A violation of the Lanham Act may be found if the conservator's action constitutes a false description of representation or if the artist's name is used in such manner as to misrepresent the nature of his or her contribution to the work (Nimmer and Nimmer 1994). Court decisions have sustained an artist's right not to be falsely identified as the creator of someone else's work (House 1986). Some courts have found false identification to violate section 43(a) of the Lanham Act.

For instance, the well-known British comedy group, Monty Python, successfully sued ABC Television for copyright infringement and false designation to protect what was essentially a moral right. In that case, Gilliam v. American Broadcasting Co., Monty Python had entered into a contract with BBC to film and televise dramatic scripts of the group's work. The contract provided that BBC could reproduce and license the programs based on the scripts but restricted BBC or others from making changes or alterations. BBC licensed the programs to ABC, which subsequently edited down the program time to allow for commercials and then aired the shows. Monty Python characterized the commercial interruptions and edits as mutilations that damaged the integrity of the work. Although at the time of the case, American copyright law did not protect such moral rights, the court upheld these claims on the theory that the ABC edits had substantially altered the work and exceeded the scope of the licensing agreement. The court held, on alternative grounds, that when ABC edited the work and attributed it to Monty Python, it erroneously attributed authorship of the edited work to the group and that such attribution constituted a false designation of origin and thus misrepresented the author's work in violation of federal trademark laws. Further, the court found that Monty Python's reputation suffered damage from an altered version of the work because the “public [had] only the final product by which to evaluate the work,” and the shortened final product did not fairly represent the artists. The court extended “moral rights” protection to the artists through a combination of the Lanham Act and contract laws.


5.3 COMMON-LAW RESPONSES

The traditional court system provides other courses of action for artists and artists' estates seeking compensation for conservation that they assert to be harmful to the artist. The common law has provided protection similar to the right of attribution and the right of integrity (House 1986). As has been explained, although the right of attribution was expressly rejected, prior to VARA an artist was not completely without recourse. One solution for the artist if a work had been negligently restored was to disavow authorship of the work. Furthermore, a number of legal theories provided protection similar to the right of attribution. These common-law rights are still available: contract and tort law claims including false light, misappropriation, and fraud.

Contract law may provide protections similar to moral rights. For example, a contractual provision may resemble the right of attribution if it requires that the artist receive credit for the work (House 1986). However, the artist has the burden to negotiate the obligation to give credit. The right of attribution under contract law is not presumed. Furthermore, the conservator may have a contract with an artist or the artist's estate to restore the work properly. Courts could also extend protection similar to the right of integrity under contract law by invoking implied covenants of fair dealing and good faith. Courts could also resort to industry practice as a standard for interpreting contracts to close contractual loopholes that have sometimes shielded users who make substantial changes that affect the artist's honor or reputation (House 1986).

Tort law may also provide protection similar to the rights of attribution and integrity. An artist may bring a claim of defamation if a work falsely attributed to the artist is of an inferior quality and consequently damage his or her reputation (Nimmer and Nimmer 1994). A defamation action may also prevail where the publication of the work casts discredit upon the artist (Nimmer and Nimmer 1994). False attribution of a work or intentional damage to a work may be construed as libel (House 1986). If an artist claimed attribution to a work created by another, that artist could be held liable for common law fraud or misappropriation. These examples illustrate how both statutory and common-law laws provided and continue to provide a partial coverage of moral rights but failed to explicitly cover all reputational concerns.

Publication under the artist's name with unauthorized changes may violate these rights, the right of privacy, or the right of publicity (Nimmer and Nimmer 1994). Although ordinarily the artist may not object to the use of his or her name in connection with a work, when such use is a truthful statement, a claim of an invasion of privacy may be found when the truthful attribution appears in connection with the unauthorized publication of a previously unpublished work in circumstances where the artist reasonably regarded the work as not worthy of publication and the use of the artist's name suggests to the public his or her approval of such publication (Nimmer and Nimmer 1994).


5.4 VARA AND SIMILAR STATE STATUTES


5.4.1 State Statutes

Recognizing the limitations of common-law treatment of moral rights, some states have adopted statutory provisions recognizing moral rights. In addition to the federal law, a number of states have enacted statutes that provide protection for artists.2 All of these statutes recognize the moral rights of integrity and attribution, although the scope varies depending on the purpose of the legislation.

Essentially, these statutes fall into three categories as defined by their purposes (House 1989). California and New York were the first states to enact moral rights statutes protecting artists and their work. These states set two different approaches. The California statute, enacted in 1979, emphasizes the preservation of the work. The preservation model, followed in Connecticut, Massachusetts, and Pennsylvania, sets out the intent to protect artistic works from destruction and provides the rights of attribution and integrity (House 1989). The New York statue, enacted in 1983, places its emphasis on protecting the artist's reputation. This artists' moral rights model, followed in Maine, New Jersey, and Louisiana, grants the rights of attribution and integrity, but destruction is not strictly considered a violation of rights since when the work is destroyed the rights can be considered extinguished (House 1989). A third approach, a public works model, as in New Mexico, has a police-power focus instead of a copyright-oriented focus and is intended to protect works from vandalism and safeguard works with historical or other cultural or community value (House 1989).

While these state statutes are similar to VARA, there are a few notable instances in which state laws are crucially different from the federal law. In Pennsylvania and Massachusetts, moral rights survive the artist for 50 years. The standard of care required in New York, New Jersey, Nevada, Louisiana, and Rhode Island is simple negligence as opposed to the standard of gross negligence under VARA. These distinctions are important because they give artists who would not otherwise be able to make a claim under VARA an opportunity to do so.


5.4.2 The Doctrine of Preemption

Conservators must be aware of the existence of state moral rights statutes because these state laws and VARA provide similar protections, and a conflict potentially exists over which law to apply. Generally a federal law will preempt a state law. Preemption is a judicial doctrine fashioned by the Supreme Court. For certain matters of national importance, the Constitution gives the federal government exclusive legislative jurisdiction. As prescribed by the Supreme Court, a federal law will take precedence over state law. This does not mean that state and federal law cannot coexist, but federal law will apply and state law will be invalidated when Congress chooses to enact a statute so as to occupy the entire “field,” or subject area. For instance, the Constitution gives Congress the power to regulate interstate commerce, and Congress chose to enact statutes so broad that many state statutes attempting to regulate commerce have been held preempted by federal law and are consequently invalid.

When Congress passed VARA it amended the section of the statute that specifies the duration of the copyright to specifically preempt and abolish or invalidate any equivalent state provisions that would extend the duration of the moral rights granted by VARA (Copyright Act 1976). One interpretation of the statute is that, as of the effective date of VARA, all similar state provisions regarding the duration of the copyright are void. This argument has the support of William Perry, former register of copyrights. Others, including Stephen E. Weil, author of the foremost treatise on art law, Smithsonian scholar emeritus, and former deputy director of the Hirshhorn Museum and Sculpture Garden in Washington, D.C., argue that some state provisions may not be preempted and might be valid. The proponents of the position that the state statutes are not fully preempted argue that because the state laws expand the duration of the copyright they confer broader protection to the artist, and if the protection is greater, then Congress has not completely occupied the field.

Both arguments carry considerable legal weight and influence the ongoing judicial debate. Until the Supreme Court accepts a case that tests the validity of the preemption of the state statutes, the only prudent approach is to assume that the state provisions are valid. While the legal and art worlds wait for a definitive answer to the preemption question, conservators should conduct themselves under the assumption that state statutes are constitutionally valid. Conservators should, therefore, be even more careful when working in states such as New York, which imposes a duty of avoidance of simple negligence for conservation, and should assume that a claim for a violation of moral rights can be asserted after an artist's death in states such as Pennsylvania and Massachusetts.

A few courts have focused on whether VARA preempts state-enacted moral rights. For example, in Gegenhuber v. Hystopotis Productions the court determined that VARA did not preempt a state provision against “passing off” when a theater company removed the names of two artists who contributed to the design, production, and performance of a children's puppet show. The production company used the narrow definition of VARA rights in an effort to eliminate the state-level claims. In some circumstances, conservators may find that VARA may work to their advantage.


6 PRECAUTIONS AND AVOIDING LEGAL LIABILITY

After reading the preceding paragraphs, a conservator may be filled with trepidation concerning tomorrow's conservation and wonder how to avoid the “wrath” of the copyright law. To avoid liability it is perhaps best to approach the law in a manner suggested by Oliver Wendell Holmes in The Path of the Law: “A legal duty … is nothing but a prediction that if a [person] does or omits certain things he will be made to suffer in this or that way by judgment of the court. [Therefore,][i]f you want to know the law … you must look at it as a bad man, who cares only for the material consequences that such knowledge enables him to predict, not as a good one, who finds his reason for conduct, whether inside or outside of it, in the vaguer sanctions of conscience.”

With this perspective in mind, consider drawing an analogy between conservators and physicians. By law, physicians have a legal obligation to practice medicine with the same degree of skill and care that is expected of the average physician acting under similar circumstances. Often, in order to meet this standard, a physician is obligated to run tests on the patient before giving treatment or offering advice. The law imposes a duty under circumstances in which the benefit received by testing outweighs the burden of giving the test. This is especially so when the cost of testing is extremely low and the possible resulting harm is great.

If publicly asked why they run so many tests, doctors will respond that they test to provide the best possible medical services to their patients. If asked in private, they may add that they test to avoid a possible lawsuit. This is not to suggest that doctors do not care about their patients. However, one look at the cost of malpractice insurance suggests that doctors do consider the legal consequences of failing to test. In an increasingly litigious society, this practice is common and prudent.

Arguably, the conservator's restoration of a work is analogous to health care providers' treatment of their patients. When a work comes into the conservator's studio it is usually ailing in some way. The conservator's goal is to maintain or restore the good health of the work by preserving the intent of the artist and to avoid any harm to the work and thereby avoid any legal liability. Before proceeding in a restoration, conservators should fully understand the scope of the restoration and run cost-effective tests that will enable them to fulfill their obligation. Testing provides protection for the work and protection for the conservator. Tests will guide conservators in providing their patients with professional care while taking precautions against harming the patient and incurring legal liability. Conservators, like doctors, should always be cautious in their attempts to restore their patients to good health and follow the recommended procedures as well as the rules and regulations of their profession.

A prudent practice is to always adhere to the AIC Code of Ethics and Guidelines for Practice, which creates an ethical obligation for conservators and sets out the accepted standard of care for the profession (AIC 1994). If followed, the guidelines will help shield the conservator from legal liability. For instance, the AIC Guidelines wisely require documentation for any and all actions of conservation. Proper documentation provides professional care for the work and legal proof that the conservator acted with the requisite care—that is, that he or she did not act negligently. Therefore, it is important to document everything done to a work, no matter how slight, and to photograph the work both before and after restoration.

Although the AIC Code of Ethics and Guidelines are extensive and require the conservator to maintain a relatively high ethical and professional standard, conservators should not automatically assume that adhering to them will provide complete protection from liability. Even if a conservator diligently follows the AIC Guidelines, a court of law, upon hearing the facts, could require even further diligence. The prominent jurist, Learned Hand, writing for the Second Circuit in the 1932 opinion of The T. J. Hooper, said: “In most cases reasonable prudence is in fact common prudence; but strictly speaking it is never its measure; a whole calling may have unduly lagged in adoption of new and available devices. It may never set its own tests however persuasive be its usages. Courts must in the end say what is required.” Conservators, therefore, should actively pursue better and more efficient methods of restoring and conserving art. To ignore or disregard an effective technique of conservation could expose a conservator to liability despite a strict adherence to commonly accepted practices. Above all, if the conservation is of the work of a living artist, the conservator must get that artist's permission. There may also be circumstances under which a conservator's best course of action is not to accept a commission to restore a work of art.

An additional preventive measure would be for museums and other art purchasers to obtain more comprehensive information at the time of accession. When a work of art is acquired, in particular when it is acquired from a living artist, museums could and should request, by use of forms, pertinent information including the materials used, tools used, the history of any treatment, and guidelines for storage or display of the work. The cost of obtaining this information is low and would prove invaluable to conservators. Some museums are doing this already, and others should be encouraged to adopt the practice. If registrars and curators obtained detailed information about works of art—including, for example, what brand of paint, what shade of blue, what kind of brush, what kind of varnish—restorations would be easier and more accurate and carry a greatly reduced chance for the commission of negligent acts.


7 CONCLUSIONS

VARA has expanded the exposure of conservators to claims by artists for modifications to their works. Now, not only the owner of a work of art may be able to sue a conservator if restoration goes awry, but a living artist may assert a moral rights claim against conservators under copyright law. Both artists and collectors can assert claims against conservators under a variety of legal theories that existed before the enactment of VARA. To avoid incurring legal liability, conservators should always proceed with caution.

There are several basic recommended precautions. First, conservators should diligently follow the AIC Code of Ethics and Guidelines for Practice. These standards provide an excellent road map for conservators. In particular, to decrease the potential for an artist to claim a violation of moral rights, conservators should “strive to select methods and materials that, to the best of current knowledge, do not adversely affect cultural property or its future examination, scientific investigation, treatment, or function” (AIC 1994, article VI). Such efforts are also emphasized in the Guidelines for Practice, as in paragraph 23, which underscores the need to document any intervention to compensate for loss in treatment records and reports (AIC 1994). This guideline also suggests that such compensation be detectable by common examination methods and be reversible (AIC 1994). A conservator wishing to take precautions against potential violations of moral rights may want to ensure that documentation and reversibility of conservation efforts are carried out on a regular basis and for other activities in addition to compensation for loss.

In addition to the standards of the AIC Code and Guidelines, the conservator may want to consider other measures to reduce the likelihood of a moral rights claim. Notably, if the artist is alive, obtain the artist's permission. Take note of the fact that although moral rights in the United States only exist for the life of the artist, moral rights in other countries extend beyond and may vest in the artist's heirs. As a consequence, even if the artist is no longer living, and particularly if the work was created in another country, the conservator may want to notify or seek permission from the artist's heirs. While paragraph 6 of the AIC Guidelines recommends seeking consent of the owner, custodian, or authorized agent, frequently the owner of the work is not the artist (AIC 1994).

As is suggested by the AIC Code of Ethics, a conservator should recognize his or her limitations and use good judgment. Conservators should not commit to the restoration of a work of art unless they have the required skills and knowledge. Given the remedies now available to artists under VARA, conservators should not be pressured by deadlines that cannot be met without sacrificing professional standards. Conservators must test thoroughly. As discussed, the law imposes testing as a professional duty, and conservators should make a thorough and detailed record of anything done in connection with the restoration. Through incorporation of these measures and diligent adherence to the AIC Code of Ethics and Guidelines for Practice, conservators may promote a high level of professionalism and at the same time meet the artistic, and now legal, goal of preserving the artist's intent.


NOTES

1.. For example, the requirement that harm to the honor or reputation of the artist must occur for an artist to claim right of integrity is a narrower interpretation from the French law (Françon 1992). The fact that there are fewer recognized rights under Berne than under the French law is due to a compromise between countries with differing levels of moral rights protection.

2.. The states that have adopted moral rights legislation are California, Connecticut, Georgia, Louisiana, Maine, Massachusetts, Montana, Nevada, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island, South Dakota, and Utah. Puerto Rico also has moral rights legislation.



REFERENCES

AIC. 1994. Code of ethics and guidelines for practice. Washington, D.C.: American Institute for Conservation.

Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, para. 1, at 41, opened for signature September 9, 1886 (last revised July 24, 1971), reprinted in World Intellectual Property Organization. 1978. Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971).

Black's law dictionary. 1990. 6th ed.St.Paul, Minn.: West Publishing Co. 1032.

Copyright Act. 1976. U.S. code. Title 17, sec. 101.

France, Law of March 11, 1957, art. 1 (Unesco Translation), cited in Ginsburg, J. C. 1989. French copyright law: A comparative overview. Copyright Society of the U.S.A. Journal36: 269.

Françon, A.1992. Le droit d'auteur: Aspects internationaux et comparatifs. Cowensville, Quebec: Editions y Blais.

General Agreement on Tariffs and Trade. 1994. Trade-Related Aspects of Intellectual Property Rights, Uruguay Round, pt. II, art. 9.

Lanham Act. 1946. U.S. code. Title 15, sec. 1125(a); sec. 43(a) in original text.

Nimmer, M., and D.Nimmer. 1994. Nimmer on copyright. New York: Matthew Bender.

Recht, P.1969. Le droit d'auteur, une nouvelle forme de proprieté. Discussed in J. C. Ginsburg. A tale of two copyrights: Literary property in revolutionary France and America, Tulane Law Review64: 991.

U.S. House. 1989. Committee on the Judiciary. Subcommittee on Courts, Intellectual Property, and the Administration of Justice. Visual Artists Rights Act of 1989: Hearing on H.R. 2690. 101st Cong., 1st sess.

U.S. House. 1986. Committee on the Judiciary. Subcommittee on Patents, Copyrights and Trademarks on the Judiciary. Final report, ad hoc working group on U.S. adherence to the Berne Convention. In Hearing on U.S. Adherence to the Berne Convention. 99th Cong., 1st and 2d sess. U.S. Senate. 1988. Report No. 352, 100th Cong., 2d sess. Reprinted in United States Code Congressional and Administrative News. 1988.

Visual Artists Rights Act. 1990. U.S. Code. Title 17, sec. 106A et seq.


AUTHOR INFORMATION

ANN M. GARFINKLE is an attorney admitted to practice in New York (1968) and the District of Columbia (1973). She is the principal of Garfinkle and Associates, a Washington, D.C., general practice law firm with a specialty in art law. She is cochair of the Steering Committee of the Arts, Entertainment, and Sports Law Section of the D.C. Bar and a member of the board of trustees of Maryland Institute, College of Art. She is a frequent lecturer for Washington Area Lawyers for the Arts and has lectured at two AIC annual meetings on the laws affecting conservation. Garfinkle has negotiated numerous large-scale commission contracts for both two-and three-dimensional art, including the Korean War Memorial in Washington, D.C. Address: Garfinkle and Associates, 1150 Connecticut Ave., N.W., Ste. 505, Washington, D.C. 20036.

JANET FRIES is an attorney admitted to practice in the District of Columbia and New York and is an associate with Garfinkle and Associates. Fries has been a professional editorial and fine art photographer for 20 years and has taught photography. Her work has been acquired by the permanent collections of major museums. Fries is the chair of the Visual Arts Committee of the Arts, Entertainment, and Sports Law Section of the D.C. Bar and serves on the Mediation Steering Committee of Washington Area Lawyers for the Arts. Address: As for Garfinkle.

DANIEL LOPEZ is a former summer associate of Garfinkle and Associates. He is a 1996 graduate of the George Washington University National Law Center who is admitted to practice in Virginia. Lopez is presently employed as a judicial law clerk for the State of Connecticut Superior Court.

LAURA POSSESSKY is a former summer associate of Garfinkle and Associates. She is a 1995 graduate of Georgetown University Law Center with a B.A. from the University of Pennsylvania and is admitted to practice in the District of Columbia and Maryland. Possessky currently works for the Smithsonian Institution in the Office of Contracting and is a member of the Young Lawyers' Community Outreach Committee of Washington Area Lawyers for the Arts.

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Copyright © 1997 American Institute for Conservation of Historic and Artistic Works