Bench & Bar

MAR 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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Page 9 of 87

| MARCH/APRIL 2018 8 The Achilles heel of VARA is waiver. While most countries make moral rights non-waivable, VARA permits waiver. Sophisticated arts organizations typically require a VARA waiver whenever relevant. But many smaller arts organizations are unaware of VARA or their potential lia- bility for infringement of VARA rights. Organizations commissioning site-specific works should consider potential VARA liability and request a VARA waiver. And artists creating site-specific works should know about their VARA rights and at least negotiate any VARA waiver. VARA issues usually arise when the owner of a site-specific work wants to move, alter, or destroy it. If the artist's VARA rights are intact, it can be possible to prevent - or at least limit - the changes. For example, in 2005, the Massachusetts Museum of Contemporary Art ("Mass MoCA") com- missioned Christoph Büchel to create Training Ground for Democracy, a large interactive art installation. 16 e relation- ship soon soured, and Büchel disavowed the unfinished work. In 2007, Mass MoCA filed a declaratory judgment action, seeking to exhibit the work. Büchel counterclaimed, alleging infringement of his VARA rights of attribution and integrity. Ultimately, Büchel won a partial victory, in large part because he never waived his VARA rights. But more commonly, courts conclude that artists have waived their VARA rights or that VARA simply doesn't apply. For exam- ple, in 1984, Chapman Kelley received permission from the Chicago Park District to install Wildflower Works, a site-specific work consisting of two elliptical flowerbeds planted with an assortment of wildflow- ers, each about the size of a football field. In 2004, the Park District changed the flowerbeds into smaller rectangles planted with different flowers. Kelley sued the Park District for infringement of his VARA integrity right, but the court held copyright could not protect Wildflower Works, because a garden is not a "work of authorship … fixed in a tangible medium." 17 While artists occasionally try to assert their VARA rights, they are rarely successful, in large part because courts are sensitive to the circumstances. VARA rights typically become an issue when the owner of a site- specific work wants to use the site for a different purpose. Understandably, courts are reluctant to hold that site-specific art is forever, regardless of the wishes of future owners. Extension of the VARA integrity right to site-specificity would be a power- ful disincentive to commissioning public art, not to mention a hardship to property owners unaware of the risks associated with VARA. C. FAIR USE e "fair use" doctrine is the most import- ant exception to copyright, intended to protect free speech and increase the eco- nomic efficiency of copyright. 18 Essentially, it provides that certain uses of a copyrighted work are non-infringing. e key questions are whether the use is "transformative" in some way and whether it competes with the original use. At least in theory, the first question is subjective and the second is objective: is the use justified and is it efficient? 19 Artists have always borrowed ideas and images from the world around them, including from each other. Until relatively recently, they rarely worried about fair use, for the same reason they rarely worried about copyright. Artists typically made unique objects, so copyright and copying just didn't matter. But with the prolifera- tion of technologies that enabled artists to reproduce both their own works and works made by others in a congeries of different ways, copyright and fair use suddenly became relevant. And no one knew how to answer the questions they presented. While artists had always assumed they could use anything they liked, pop art took that assumption to new extremes. Andy Warhol notoriously used images from any source imaginable in order to create his enigmatic commentaries on contemporary life and culture. Ironically, when he used commercial marks and works, the owners usually turned the other cheek or simply asked him to stop. 20 When Warhol created his iconic series of paintings Campbell 's Soup Cans (1962), the Campbell's Soup Company initially con- sidered suing for trademark infringement, but desisted, and was ultimately thrilled by the free publicity. By contrast, other artists were often less understanding. When Warhol used part of Patricia Caulfield's 1964 photograph of hibiscus flowers to create his Flowers (1965) series of painting, Caulfield threatened to sue him for copyright infringement and demanded a cash settlement. e rise of appropriation art in the 1980s brought the tension between copyright and fair use in artistic practice into relief. Sherrie Levine was able to create her con- troversial appropriated photographs like After Walker Evans (1981) only because the photographs she copied were in the public domain. And many artists were infuriated by Elaine Sturtevant's brilliantly subversive imitations of their works, with the notable exception of Warhol. When asked about his own technique, he replied, "I don't know, ask Elaine." Copyright infringement actions were inev- itable, and have helped define scope and application of the fair use doctrine, for Features: Andy Warhol, Campbell 's Soup Cans (1962) ART LAW, COPYRIGHT & TRADEMARK

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