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If it Ain’t Broke?…Ninth Circuit Announces Curious Test of “Applied Art” Under VARA

Posted by Nicholas O'Donnell on June 16, 2016 at 4:56 PM

The Ninth Circuit has ruled against two artists in a long-running dispute about a hybrid school bus creation at Burning Man more than ten years ago, a “galleon” named La Contessa. In announcing a test that focuses on whether the object is “utilitarian” to warrant protection under the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (“VARA”), the Court of Appeals has added an element that the statute does not contain. Namely, any artist that incorporates an object that once had an independent function must essentially ensure that the object does not work any more. Otherwise, the potential that it could resume its former function eliminates legal protection. So school bus with a Spanish galleon on top is “applied art” and ineligible for VARA protection, while a school bus attached to a wall is “a work of visual art.” It is a test that appears ripe for problems in the application. What is it about VARA that so bedevils interpretation? As we have often lamented, VARA guidance is somewhat rare, and often muddled. From here, this latest result is a continuation in that trend, particularly because it starts off by confusing the rights of attribution and integrity, which are different rights with different remedies.

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Topics: Visual Artists Rights Act of 1990, VARA, La Contessa, Burning Man, Simon Cheffins, Gegory Jones

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About the Blog


The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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