The Visual Artists Rights Act (“VARA”) protects a “work of visual art” from “intentional distortion, mutilation, or other modification.” VARA defines what a work of visual art is, and also what it isn’t. A painting, drawing or sculpture, can all qualify as works of visual art. On the other hand, a diagram, model, and “applied art” do not make the cut. With that brief introduction, let’s unfurl the sails of copyright law a bit further and ask this burning question: Is a school bus that is transformed into a replica of a 16th Century Spanish Galleon a “sculpture” deserving protection under VARA, or is it merely a work of “applied art” that can be intentionally set ablaze without fear of liability? This is the issue the Ninth Circuit Court of Appeals just grappled with as it set sail on its exploration of the Copyright Act in Cheffins v. Stewart.

In this case, our two swashbuckling VARA hopefuls, Messrs. Cheffins and Jones, built a replica of a 16th Century Spanish Galleon. The vessel was built using an old school bus which was then plastered with a galleon façade hull, decking, masts, and even a handcrafted figurehead. They called their faux boat “La Contessa” (Italian for “Countess”). Over the years, she made multiple sailing appearances on land at a counter-cultural event in the Nevada desert known as the “Burning Man Festival” (an ironic twist for our Countess, as you will soon see). When the Burning Man Festival was “dark,” Cheffins and Jones stored La Contessa on the property of the festival organizers. That property unexpectedly changed hands and the new owner, Mr. Stewart, set La Contessa ablaze so that a scrap metal dealer could remove the school bus from his property.

Feeling the burn, Cheffins and Jones sued Stewart for various claims including for his intentional destruction of La Contessa in violation of VARA. The trial court was not particularly hot on the VARA claim and ruled that La Contessa was not a work of visual art but, rather, “applied art.”

The two dejected VARA hopefuls navigated their way up to the 9th Circuit and argued again that La Contessa was a work of visual art. The 9th Circuit looked at a couple of prior decisions from the Second Circuit, both of which held that “applied art” means “two and three-dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects.” The 9th Circuit ultimately held 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.” Under this definition, La Contessa was “plainly” applied art because she began as a simple school bus and “retained a largely practical function even after it had been completed.”

Judge McKeown wrote a rather fiery concurring opinion arguing for a more “nuanced definition” of applied art. She believes that “[i]n determining whether a work is ‘applied art,’ the right question to ask is whether the primary purpose of the work as a whole is to serve a practical, useful function, and whether the aesthetic elements are subservient to that utilitarian purpose.” Notwithstanding that she took a different tack on the definition, she still believed the VARA claims should sleep with the fishes.