The Ninth Circuit has ruled against two artists in a long-running dispute about a hybrid school bus creation at Burning Man more than ten years ago, a “galleon” named La Contessa. In announcing a test that focuses on whether the object is “utilitarian” to warrant protection under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (“VARA”), the Court of Appeals has added an element that the statute does not contain. Namely, any artist that incorporates an object that once had an independent function must essentially ensure that the object does not work any more. Otherwise, the potential that it could resume its former function eliminates legal protection. So school bus with a Spanish galleon on top is “applied art” and ineligible for VARA protection, while a school bus attached to a wall is “a work of visual art.” It is a test that appears ripe for problems in the application. What is it about VARA that so bedevils interpretation? As we have often lamented, VARA guidance is somewhat rare, and often muddled. From here, this latest result is a continuation in that trend, particularly because it starts off by confusing the rights of attribution and integrity, which are different rights with different remedies.

La Contessa was a work created at the Burning Man festival in Nevada in 2002. It consisted of a school bus with a façade erected on top to make the entire work look like a 16th century Spanish galleon. It was created by Simon Cheffins and Gregory Jones. Altogether La Contessa was approximately sixty feet wide and sixteen feet long, and its mast was more than fifty feet tall. It appeared at Burning Man in 2002, 2003, and 2005. When the 2005 festival ended, Cheffins and Jones made an arrangement with a landowner to store La Contessa. That property was held by someone with a life estate, however (an interest lasting only for her life). When she died, Michael Stewart took possession of the land. At some point in December 2006 Stewart destroyed the wood galleon structure to dispose of the school bus with a scrap metal dealer.

Cheffins and Jones sued Stewart for conversion (unlawful control of moveable property) and a violation of the right of integrity under VARA. The U.S. District Court in Nevada granted summary judgment on the VARA claim, and a jury tria was held on the conversion claim, in which Stewart prevailed. Cheffins and Jones appealed, and the Ninth Circuit considered the summary judgment ruling under VARA, which it affirmed.

Cheffins and Jones asserted VARA’s right of integrity, which gives the artist influence over the physical integrity of the work—not just the right to copy it—even after the legal title is vested in someone else. The Ninth Circuit, interestingly, proceeded directly to whether La Contessa was a “work of visual art” entitled to VARA protection, rather than review whether it was a “work of recognized stature,” the requirement to invoke the right of integrity. Instead, it addressed the right to avoid distortion or mutilation “prejudicial to [the artist’s] honor or reputation.” But that is the right of attribution. Not a strong start, analytically.

In any event, a “work of visual art” is defined as:

(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 a 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

The Copyright Act also defines, interestingly, what a work of visual art does not include (emphasis added):

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

This is not, interestingly enough, the first case to consider whether a school bus is “applied art.” In Carter v. Helmsley-Spear, 71 F.3d 77 (2d Cir. 1995), the Second Circuit held that portions of a bus affixed to a wall were not “applied art.” The Second Circuit in 2003 revisited the issue, considering the interplay between utilitarian objects. It held: “VARA may protect a sculpture that looks like a piece of furniture, whether or not it could arguable be called a sculpture,” but held in that case that a painted banner did not qualify for VARA protection. Pollara v. Seymour, 344 F.3d 265, 269 (2d Cir. 2003).

With this precedent in mind, the Ninth Circuit concluded that “our inquiry should be on whether the object in question originally was—and continues to be—utilitarian in nature.” The court supported this conclusion with the definition of “applied art” in Section 101 of the Copyright Act that lists various examples that all have “utilitarian functions,” as the court put it. It thus announced the following test:

We therefore hold that an object constitutes a piece of “applied art”—as opposed to a “work of visual art”—where the object initially served a utilitarian function and the object continues to serve such a function after the artist made embellishments or alterations to it. This test embraces the circumstances both where a functional object incorporates a decorative design in its initial formulation, and where a functional object is decorated after manufacture but continues to serve a practical purpose. Conversely, “applied art” would not include a piece of art whose function is purely aesthetic or a utilitarian object which is so transformed through the addition of artistic elements that its utilitarian functions cease.

Applying this test, the Ninth Circuit held that La Contessa “began as a school bus,” which continued to transport passengers of the “galleon” throughout its later iteration. “It began as a rudimentary utilitarian object, and despite being visually transformed through elaborate industry, it continued to serve a significant utilitarian function upon its completion.” A separate concurrence by Judge McKeown agreed with the result of this case, but was troubled by the breadth of the test that was announced. Judge McKeown felt that “a more nuanced definition of ‘applied art’” was necessary.

This decision is hard to endorse. The motor vehicle in question ceased to be a school bus before it became La Contessa—and it never again became a school bus. The test announced by the Ninth Circuit effectively means that an artist incorporates a onetime “utilitarian object” (a Duchamp urinal, perhaps?), the artist must permanently disable the utilitarian ability. That is the only way to square the disparate school bus component holdings in this case vs. Carter. It is a meaningless distinction legally and artistically. Citing my favorite recurring personal example David Hammonds’s 1993 Rock Fan at Williams College, would Hammonds have to establish that the fans could not be used again if separated from the rock? Nothing about the statute implies that such a showing should be necessary, but under the Ninth Circuit test it might. It is an odd set of requirements to impose on contemporary art.