A ‘Potato’ Firmly Planted: Moral Rights and Site-Specific Art

Prof. Jane C. Ginsburg, Columbia University School of Law*
February 26, 2013

Lawyers and others with a glancing acquaintance with comparative copyright law know that civil-law countries, particularly on the European continent, protect two series of authors’ rights, economic and “moral.”  Authors’ non-pecuniary prerogatives, enshrined in the Berne Convention on the international protection of authors’ rights (see Art. 6bis), include the rights to be recognized as the work’s author (right of attribution), and to preserve the work against alterations that are deleterious to the author’s honor or reputation (right of integrity).

Those casually familiar with U.S. copyright law may know that we generally do not enforce non-economic authorial interests, though many may be surprised to learn that U.S. copyright law includes no overall guarantee of authorship credit.  We do, however, secure these rights in the case of “a work of visual art.”  This is a narrowly defined category covering original paintings, drawings, and sculpture, and multiples in signed and numbered editions of up to 200 (see 17 U.S.C. Secs. 101, 106A).

If the work qualifies for protection under VARA (the Visual Artists’ Rights Act), its creator will be entitled:

To prevent any intentional distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.  (17 U.S.C. Sec. 106A (a)(2)(A).)

On its face, this text would seem to cover site-specific art.  After all, for paintings and sculpture conceived and constructed for a particular location, removing the work to another location would seem to be an “intentional distortion, mutilation, or other modification of the work” that might harm the author’s reputation by conveying an incorrect impression of the work.  When the setting is an integral part of the work, uprooting the work alters the author’s message and misleads the public as to the work’s meaning.

In fact, however, both VARA’s legislative history and the caselaw construing the statute reject claims of enforceable site-specificity.  U.S. courts generally are chary of constraining what private property owners can do with their land or chattels, and hence are uneager to expand VARA’s inroads on art-owner autonomy.  Perhaps the original purchaser who commissioned the work for a given spot may be bound to keep it in situ, but if changing a work’s location were to violate its integrity and therefore to entitle the artist to a remedy, then later purchasers would also have to live with the detested artifact that graces (or encumbers) their land.

Neither the structure of VARA (which includes broad opportunities to opt out of obligations to retain works incorporated in buildings, see Sec. 113(d)), nor the background of its passage suggest that Congress sought to impose an “art servitude” on the parties who commission or purchase publicly displayed artworks.  At the time of VARA’s drafting, the notorious “Tilted Arc” controversy was unfolding.  “Tilted Arc” was a very large and rusting curve of metal, slashing across the plaza in front of a federal building in downtown New York City.  Although its creator, the famous sculptor Richard Serra, had sought contractual guarantees of site-specificity, the sculpture proved very unpopular with federal workers, many of whom deplored the loss of their plaza, and the sculpture ultimately was carted away.  The prospect (or specter) of a proliferation of “Tilted Arcs” led Congress to provide a broad “public presentation” exception (Sec. 106A(c)(2)), and an accompanying reassurance in the committee report:

Generally, the removal of a work from a specific location comes within the [public presentation] exclusion because the location is a matter of presentation, unless the work cannot be removed without causing the kinds of modifications described in proposed subsection 106A(a)(3).  H.R. Rep. No. 101-514, at 17.

Given this background, the First Circuit in Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128 (1st Cir. 2006) unequivocally rejected the artist’s claim that the removal of groups of his sculptures from the public park for which they were created would violate the works’ artistic integrity under VARA.

By contrast, a recent decision of the Spanish Supreme Court¹ exemplifies the different outcomes for artists in legal cultures that have long secured creators’ “moral” interests in the integrity of their work.  In a decision announced on February 13 of this year, the Spanish high court upheld a sculptor’s challenge to the art-commissioning municipality’s plan to remove his work from the place for which it had been created.  The municipality of Amorebieta (near Bilbao) had commissioned artist Andrés Najel to create a sculpture for the center of a traffic circle.  The work, pictured below, became known affectionately (or pejoratively) as “the potato,” for reasons that the photographs render apparent.

Later the municipality decided to turn the traffic circle into a pedestrian plaza, and sought to move the sculpture.  Najel sued, invoking both the contract with the municipality (in which it allegedly agreed to maintain the sculpture in the specified location), and his moral right to protect the work’s integrity.  In the courts below he prevailed only on the contract ground.  The Supreme Court, however, in a cautiously worded decision, also upheld the moral rights theory.

The court declared that the right of integrity can extend to the siting of the work in the place for which it was created.  Nonetheless, the court also recognized that the interests of the artist must be balanced against those of the municipality.  Not all removals of artworks to another location “alter the communication between the artist and the public,” and the artist’s right is not absolute, but must be weighed against the rights of the owner of the object.

In Najel’s case, the high court was persuaded that the sculpture was conceived solely for the designated spot, and that its displacement would “substantially interfere with the [public’s] understanding of the work” and with “the dialogue between the author and the public through the work of art.”  Nonetheless, the court is bound to guard against abuse, because in the event of a disagreement between the artist and the owner of the object “it is not appropriate to impose disproportionate sacrifices on the owner of the work.”  The court also noted that the city had failed to offer a concrete alternative location for the work.

How broad is the artist’s right to compel site-specificity in Spain?  The Najel case suggests that where the evidence is less compelling that the work’s “meaning” is rooted to a single spot, for example, where the contract commissioning the work does not specify the unique importance of location, and where the city or other buyer has developed an alternative location, the court may be less likely to equate the work’s integrity with its remaining in situ.

Improbably, there may be one respect in which U.S. law affords visual artists more protection than continental Europe.  In most of Europe, altering a work violates its integrity, but destroying it does not.  By contrast, destroying a “work of recognized stature” does contravene VARA.  If, instead of proposing to relocate “the potato,” the Spanish municipality had mashed and discarded it instead, it is not clear that the artist would have had claims other than contractual.  On the other hand, had the lessee of the Boston Harbor-view park that housed the sculptures in Phillips v. Pembroke dumped them in the port instead of transporting them to Rhode Island, the sculptor might have been able to pursue his VARA action.