We reported recently on a new lawsuit in California invoking the Visual Artists Rights Act (VARA) in the context of a mural by Victor Henderson, of the Los Angeles Fine Arts Squad. Henderson alleges that property owner Ralph Ziman had his “Brooks Avenue Painting” water blasted in 2013, thus destroying the integrity of his work and infringing on Henderson’s rights under VARA.
Several readers have asked about the applicability of VARA, enacted in 1990 as U.S. law and incorporated into the Copyright Act, to a mural created in 1969. The answer lies both in the general principles of retroactivity of federal laws, and to the terms of VARA. VARA can be invoked for a work of art already in existence when the law was passed, but that conclusion applies only to the claim as alleged. The ultimate result will probably turn at least in part on how Ziman attempted to notify Henderson of his intent to remove the mural.
As to the general principles, a long body of case law discusses when a federal statute can apply to factual circumstances in existence before the law was. There are constitutional constraints, as civics class alumni will recall, such as the ex post facto clause, which forbids Congress from making criminal an act that has already been committed. As general rule, however, the Supreme Court has said that a law can only be applied retroactively when Congress has clearly and unequivocally stated its intention that the law be applied in that way. In quite another art law context (restitution) Altmann v. Republic of Austria was in fact primarily concerned with the question of retroactivity (of the 1976 Foreign Sovereign Immunities Act to the events of the Anschluss in Austria and World War II), and that decision enunciates the current understanding of the concept.
The first step in understanding the meaning of any statute is the words of the law itself. VARA first addresses the duration of the rights that it confers:
With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.
The effective date of VARA is June 1, 1991. This paragraph thus first means that as long as the original author (Henderson) still holds the copyright, his VARA rights will exist as long as his copyright does, and expire at the same time. Assuming that Henderson had never transferred the copyright in the 1969 mural, those rights would not have expired, and his VARA rights would still be enforceable for a previously-created work.
But that still does not answer the question of what rights under VARA, if any, Henderson had in his already-created mural as of June 1, 1991. VARA likewises addresses this question head on:
(b) Applicability.—The rights created by section 106A of title 17, United States Code, shall apply to—
(1) works created before the effective date set forth in subsection (a) but title to which has not, as of such effective date, been transferred from the author, and
(2) works created on or after such effective date, but shall not apply to any destruction, distortion, mutilation, or other modification (as described in section 106A(a)(3) of such title) of any work which occurred before such effective date.
The damage alleged by Henderson was clearly not before the effective date of the law, so on its face the statute would seem clearly to apply to Henderson’s claims. There is still one final wrinkle to be sorted in out in this case, however, because of the medium and nature of Henderson’s mural. The Copyright Act § 113(d) has a limitation for works that are “incorporated in or made part of a building” to whose installation the artists consented either before the enactment of VARA or in a written agreement afterwards. In those circumstances:
(2) If the owner of a building wishes to remove a work of visual art which is a part of such building and which can be removed from the building without the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), the author’s rights under paragraphs (2) and (3) of section 106A(a) shall apply unless—
(A) the owner has made a diligent, good faith attempt without success to notify the author of the owner’s intended action affecting the work of visual art, or
(B) the owner did provide such notice in writing and the person so notified failed, within 90 days after receiving such notice, either to remove the work or to pay for its removal.
This provision is effectively a manner in which the artist can waive his rights, either affirmatively or by failing to act. As a factual matter then, Henderson’s claims could turn on whether the property owner tried to alert Henderson to its intentions, or made good faith efforts to notify him, and then in turn whether Henderson raised any objection. No doubt anticipating this element of the claim, the Complaint alleges that Ziman failed to notify Henderson or attempt diligently to do so. Those allegations will be assumed to be true for any threshold challenge to the lawsuit, and will probably preserve the claims from dismissal under any challenge on that basis. Whether other arguments will suffice to undermine the case very much remains to be seen.