If Artists Need to Know About VARA, So do Judges

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A good day: On August 11th, 2010, the Gasser Grunert Gallery in Manhattan sold Jomar Statkun’s 2009 60” x 72” painting “Tubal Cain at Beggar’s Creek” to an art collector for $16,000. Less a 50 percent commission, Statkun walked away with an $8,000 sale.

A not-so-good day: At a party two years later, Statkun met a former employee of the gallery who told him that the gallery facilitated that sale by cropping 10 inches off the painting to suit the space needs of the collector. The painting’s dimensions were now 50” x 72”. Emails between the gallery owner and the painting’s buyer revealed that Grunert offered to trim the original painting to a size more suitable to the buyer, and the dealer claimed to have spoken about that plan with Statkun and that the artist was content with her doing so. That $8,000 was still welcome, but the artist saw that his painting had been mutilated, a violation of the 1990 amendment to the U.S. Copyright Law, known as the Visual Artists Rights Act, which allows living artists to protect their artwork from “intentional distortions, mutilation or modification… that would be prejudicial to his or her honor or reputation.” Almost three years to the day after that sale, Statkun brought a VARA lawsuit against the gallery owner, asking $20,000 for compensatory damages and $150,000 for statutory damages as permitted under the law.

Not really a better day: Last March, a district judge found in favor of the artist but only awarded him $3,500, claiming that the change in the painting’s dimensions weren’t that significant, considering its original size, and that its actual value far less than the amount Statkun was seeking. In his ruling, Judge Lewis Kaplan wrote
While this alteration, assuming as the Court does that it was made without plaintiff’s consent, violated plaintiff’s rights, was improper, it does not, in this Court’s estimation, warrant the imposition of statutory damages of nearly ten times the sale price of the work….

[The Court] sees no reason to provide the artist with a windfall at the expense of the gallery, which served the artist’s economic interest while, to be sure, serving its own as well. It fixes statutory damages at $3,500.

Statkun said that he was “baffled by the ruling,” as was his lawyer, Raymond Mandra, who had been appointed to represent him by New York’s Volunteer Lawyers for the Arts organization. The artist claimed that he is considering an appeal of the award.

Perhaps, it is time to review this thing called artists’ rights. VARA is a fairly limited statute, preventing the owners of artworks of “recognized stature” from destroying them and forbidding these pieces from being altered in some way without the artist’s approval. The thinking behind these moral rights is that unapproved alterations or destruction may damage an artist’s reputation. The law establishes mechanisms by which an artist may retrieve a work of art that the owner might otherwise destroy, as well as enables an artist to disclaim ownership of a piece that has been altered. Works of art are also narrowly defined as a painting or drawing, or sculptures, graphic and photographic prints in limited editions (signed and numbered by the artist) of 200 or fewer copies.

Back in 1990, it seemed as though the issue was making sure that collectors didn’t intentionally damage or destroy significant works that they owned. Among the examples offered of willful damage when Congress was debating this legislation in the 1980s was a black-and-white mobile by Alexander Calder, displayed in a building at the Greater Pittsburgh International Airport, that had been turned into a stationary sculpture in 1958 and painted the city’s official colors, green and gold. A few years before that, the industrial green paint on one of David Smith’s metal sculptures was removed because the purchaser didn’t like it, and a mural by Arshile Gorky at the Newark (New Jersey) Airport was whitewashed. Stupid stuff; there ought to be a law.

Those kinds of problems rarely happen, because ruining a work of art is tantamount to throwing away money, but as Statkun learned they still may occur. Few Visual Artists Rights Act lawsuits get very far up the judicial chain, because of the cost to the artist. “It is very expensive to bring a VARA suit,” Scott Hodes, a Chicago lawyer who has represented several artists in these actions, said. “You’re talking $200,000, $250,000. Even nonprofit lawyers won’t take these cases unless they’re a slam dunk.”

Brooke Oliver, a San Francisco lawyer who has represented a number of artists in moral rights cases, principally dealing with building owners wanting to do away with a mural, claimed that a major affect of the Visual Artists Rights Act has been to inform prospective buyers of art of “recognized stature” that they cannot do whatever they want with the pieces they purchase, because they, too, may find themselves with legal costs.

By Daniel Grant

One response

  1. Pingback: CAA News | College Art Association » Blog Archive » News from the Art and Academic Worlds | CAA

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