The US Court of Appeals for the Ninth Circuit affirmed the judgment of a Nevada district court when it determined that the Visual Artists Rights Act (VARA) of the US Copyright Act did not apply to a used school bus that had been transformed into a mobile replica of a 16th-century Spanish sailing ship. Cheffins v. Stewart, Case No. 12-16913 (9th Cir., June 8, 2016) (O’Scannlain, J) (concurrence, McKeown, J).
La Contessa was a mobile replica of a Spanish galleon that the plaintiffs created for use and display at the annual Burning Man Festival, an art and counterculture event that takes place in Nevada’s Black Rock Desert. Plaintiffs built La Contessa by transforming a used school bus into what looked like a large post-apocalyptic version of a 16th-century Spanish ship.
For the years between 2002 and 2005, La Contessa was used for various purposes at Burning Man, including providing rides to festivalgoers, as a stage for performances and as the site of at least two on-board weddings. In late 2005, defendant Michael Stewart acquired the property on which La Contessa was stored, and the ship-bus remained unmoved on the property until December 2006, when Stewart burned the wooden ship structure so that a scrap metal dealer could remove the underlying school bus from Stewart’s property.
Plaintiffs filed suit in the District of Nevada claiming violation of VARA and common law conversion due to Stewart’s destruction of La Contessa. The district court dismissed the VARA claim on summary judgment, concluding that the ship was “applied art” and unprotected by the statute. The conversion claim went to a jury, was decided in favor of the defendant and included an award of attorneys’ fees. Plaintiffs appealed.
VARA is a 1990 amendment to the US Copyright Act and protects the “moral rights” of an artist with respect to integrity and attribution. More specifically, VARA allows an artist to prevent any deforming or mutilating changes to his or her work, even after the title in the work has been transferred, and allows the artist to be recognized by name as the creator of the work. VARA applies only to a “work of visual art,” which is defined elsewhere in the Copyright Act along with examples of what a work of visual art is and is not. Under 17 USC §101, “applied art” is one of the categories expressly excluded from being a “work of visual art.” The Ninth Circuit thus explained that the issue of whether the district court properly granted summary judgment on the VARA claim depended on whether La Contessa could be qualified as a “work of visual art” or whether it was “applied art.”
VARA does not define the term “applied art.” However, the Ninth Circuit adopted much of the US Court of Appeals for the Second Circuit’s analysis on the issue and determined that the focus of the inquiry should be on whether the object in question “originally was—and continues to be—utilitarian in nature.” The Ninth Circuit found that this analysis comports with the enumerated examples of “applied art” in § 101 and with dictionary definitions of “applied art” being “an object with a utilitarian function that also has some artistic or aesthetic merit.” Ultimately, the Ninth Circuit held that an object constitutes a piece of “applied art” when it initially served a utilitarian function and continues to serve such a function after an artist makes embellishments or alterations to it.
Applying this adopted definition of “applied art” to the facts of the case, the Ninth Circuit found that La Contessa, which started as a functional school bus, retained a largely practical function even after the elaborate ship décor was completed, because it was used for transportation and other functional purposes during Burning Man. Therefore, the Court held that La Contessa was not a work of visual art under VARA and thus was ineligible for its protection.
In her concurrence, Judge McKeown commented that the Court should adopt a different definition of “applied art,” and that that definition should examine whether aesthetic elements of an object are “subservient” to the object’s utilitarian purpose. She explained that the Court’s definition may unduly narrow the protections of artists under VARA.