Hi All,
Best practices for public art are that copyright and moral rights remain with the artist. That said, there are practical considerations like those Ronda raised.
For that reason, I find it helpful to have clear language in the contract that states what kind of communication and notice and artist can expect in the event that anything is happening with their artwork. There are the laws that apply, but there is also
a public relations and human element that needs to be considered. Basically, if you were the artist, how would you like to be treated? Even if it makes sense to remove the artwork, it is good practice and policy to have a mechanism for notifying the artist.
This is always an interesting area for conversation and I would welcome the opportunity to speak further with anyone who is interested. In the meantime, I’m attaching a general memo I put together with some thoughts about copyright, moral rights, and some
suggested contract language. Hope it is helpful for anyone who’s interested in checking it out.
Best,
Sarah
_______________________________
Sarah Conley Odenkirk she/her
Partner, Co-Chair Art Law and NFT Practice Group
310.990.9581
sodenkirk@cdas.com
Cowan DeBaets Abrahams & Sheppard LLP
9454 Wilshire Blvd
Suite 901
Beverly Hills, CA 90212
310.340.6334
*** This e-mail and any files transmitted with it are confidential. Its contents are intended solely
for the Recipient(s) indicated and may also be privileged or otherwise protected by work product immunity or other legal rules. If you are not the intended Recipient you are hereby notified that disclosing, copying, distributing, or taking any action in reliance
on the contents of this e-mail is strictly prohibited. If you have received this e-mail in error, please delete this e-mail from your system and notify Cowan, DeBaets, Abrahams & Sheppard LLP immediately by e-mail. ***
From:
Bloom, Roberta (via public_art_network list) <public_art_network@americansforthearts.simplelists.com>
Date: Thursday, March 23, 2023 at 11:10 AM
To: Donald Gensler <DGensler@cityofsacramento.org>, public_art_network@americansforthearts.simplelists.com <public_art_network@americansforthearts.simplelists.com>
Subject: RE: VARA Rights Question
Hi All,
We do not ask artists to sign away their VARA rights, and I am aware of artists who would not accept a contract asking them to do so. I am not a lawyer, but
if your contract already stipulates that the murals are temporary, and even give a specific time period, it seems that there could be no reasonable expectation for the murals to stay up longer.
You may want to consider documenting the removal and destruction of the murals at the end of the contract. Therefore there could be no possibility that they
were moved and exhibited at another location, or given to someone, etc.
Roberta
Roberta Bloom
Public Art Supervisor
Library and Cultural Services | City of Aurora
office 303.739.6747
Facebook
| Twitter
| Instagram
| Nextdoor
| AuroraTV.org
From: public_art_network@americansforthearts.simplelists.com
<public_art_network@americansforthearts.simplelists.com>
Sent: Thursday, March 23, 2023 11:21 AM
To: public_art_network@americansforthearts.simplelists.com
Subject: RE: VARA Rights Question
Hi Ronda, I’m in agreement with Eric’s comments regarding the VARA waiver. Governments just have too deep pockets to allow this type of exposure. In fact, our office
is very serious about notifying artists 90 days or more before
Hi Ronda,
I’m in agreement with Eric’s comments regarding the VARA waiver. Governments just have too deep pockets to allow this type of exposure. In fact, our office
is very serious about notifying artists 90 days or more before any work would be taken down (in compliance with VARA), but we do require artists to waive these rights. We have a similar law specific to California, CAPA, that we have them waive as well. In
my conversations with artists’ attorneys, they generally support this requirement, especially since we add the phrase, “With the exception of artist’s rights as the third parties, …” This way if someone else outside of the City damages or changes the work,
the artist still retains all their legal rights to bring an action against that party. Here is short version of the language we use in most of our agreements:
WAIVER OF VARA AND CAPA RIGHTS. With the exception of ARTIST’s rights as to third parties, ARTIST
waives any and all rights ARTIST may have with respect to the Artwork under the federal Visual ARTISTs Rights Act of 1990 (17 U.S.C. §§ 106A and 113(d)), the California Art Preservation Act (Cal. Civil Code § 987 et seq.), and any other local, state, federal,
or international laws that convey rights of the same nature as those conveyed under 17 U.S.C. § 106A, Cal. Civil Code § 987 et seq., or any other type of moral right protecting the integrity of works of art.
A few final thoughts here. VARA is part of the 1991 Copyright act, but it specifically protects artists moral rights, which go to the reputation of the artist,
not the copyright. VARA is not a waiver of the artist’s intellectual property rights. We never advocate for an assignment of copyright or something like that. We only ask for a license to show images, etc. of the work for non-commercial purposes.
Thanks for your vigilance in protecting and supporting artists’ rights. Hopefully, this information will help you to make the decision you believe will work
best for your city and program.
Sincerely,
Donald
Donald Gensler
Art in Public Places, Project Manager
Sacramento Office of Arts + Culture
915 I Street, 3rd Floor
Sacramento, Ca 95814
(o) 916-808-8493
(m) 916-955-4564
From:
public_art_network@americansforthearts.simplelists.com <public_art_network@americansforthearts.simplelists.com>
On Behalf Of Werner, Eric
Sent: Thursday, March 23, 2023 9:36 AM
To: Billerbeck, Ronda <RBillerbeck@kentwa.gov>
Cc:
public_art_network@americansforthearts.simplelists.com
Subject: RE: VARA Rights Question
Hi,
The City of Albuquerque attorneys feel the same way. We have almost all of our artists sign a VARA waiver, which I have attached.
I honestly have never had any pushback from artists. They understand that there are some out of the ordinary stipulations when working with government entities.
Hope that helps.
Eric John Werner
Management Analyst II
o 505.768.3451
c 505.328.1199
cabq.gov/artsculture
ttsp
From:
public_art_network@americansforthearts.simplelists.com <public_art_network@americansforthearts.simplelists.com>
Sent: Thursday, March 23, 2023 10:31 AM
To:
public_art_network@americansforthearts.simplelists.com
Subject: VARA Rights Question
|
Hi All,
This is Ronda Billerbeck from the City of Kent, WA Arts Commission. I am preparing to issue artist contracts for our rotating mural program. These artworks are transferred to vinyl and wrapped
around light aluminum panels that are attached to buildings. They stay in place for two years before another batch are commissioned and go into place.
We have a new attorney who is insisting the artists sign a VARA Rights waiver, waiving the third part of 17 USC §106A(a) which allows for the artwork to be removed or otherwise modified. Our
contract, which we’ve used multiple times in the past, already stipulates that the murals are temporary and stay in place only two years. I’m very uncomfortable asking artists to permanently waive their rights regarding destruction or modification of their
work for “whatever reason” and I have argued that this isn’t best practice in the public art world. Unfortunately, he’s standing firm.
I need some additional back-up from you all, or, if I’m wrong here, let me know! I appreciate any input. I’m including the attorney’s latest argument below.
Thank you!
Ronda
Ronda Billerbeck,
Cultural Programs Manager
Cultural Programs | Parks, Recreation & Community Services
220 Fourth Avenue South, Kent, WA 98032
Phone
253-856-5055 | Fax 253-856-6050
rbillerbeck@KentWA.gov
CITY OF KENT, WASHINGTON
KentWA.gov
Facebook
Twitter
YouTube
Instagram
I understand the hesitancy from the artists, but I really want to emphasis how limited this actual waiver is. Our intent with this approach to VARA rights
is to keep any waiver of rights as narrow as possible, which is why we are only asking them to waive that third prong of 17 USC §106A(a), which allows for the artwork to be removed or otherwise modified. The artist would still retain full rights to claim authorship
and control the use of their name with reference to the artwork, including the copyright protections (separate from VARA) that are included in Section VI of the agreement. The original clause in Section VII already states that the City may remove the artwork
when the City “its sole discretion, determines that the integrity of the artwork cannot be maintained or the repair or maintenance of the artwork is impractical.” This VARA waiver largely serves to reiterate this clause and is only necessary because
federal law requires an express waiver of VARA rights from artist. Without this express waiver, the artist could sue the City for any reason. The concern here is multiple circumstances could come up that might require the City or the building owner
to modify or destroy artwork such as simple maintenance, painting over some sort of vandalism, or some unforeseen issue with the building. Additionally, because of the temporary nature of this project, we know that the art will eventually need to be removed
regardless, which will trigger VARA as well. This waiver would protect the City from potential liability in these instances.
To unsubscribe from this list please go to
https://cas5-0-urlprotect.trendmicro.com:443/wis/clicktime/v1/query?url=https%3a%2f%2farchives.simplelists.com&umid=653c5dd6-3250-4cc7-b8eb-babb2bf5b795&auth=0c78d5381d8efeba9ba4477b3ca23a49d0ab462f-cd2cb83ce3aa2a011a095d2d820c88a82172653a
To unsubscribe from this list please go to
https://cas5-0-urlprotect.trendmicro.com:443/wis/clicktime/v1/query?url=https%3a%2f%2famericansforthearts.simplelists.com%2fconfirm%2f%3fu%3drAV2H8QRyyO7fF5IbYW0ZIXUUmEt2Zsp&umid=653c5dd6-3250-4cc7-b8eb-babb2bf5b795&auth=0c78d5381d8efeba9ba4477b3ca23a49d0ab462f-5678112ba21ccb62c3a7ed31925553ac74324e36
To unsubscribe from this list please go to
https://archives.simplelists.com
To unsubscribe from this list please go to
https://americansforthearts.simplelists.com/confirm/?u=lxkKA81gU9m1bVuxLWedbRe8condHnIm