Visual Artists Rights Act Case Study: Elmwood vs. Ridgeland
MEMORANDUM
TO: Supervising Attorney Maureen Kordesh
Subject: elmwood V. ridgeland
DATE: DECEMBER 5th, 2012
QUESTION PRESENTED
Whether Elmwood’s artistic work qualifies as a “work of visual art” and whether she was the author of said work under the Visual Artist’s Rights Act of 1990 (VARA); if these elements are met, the issue needs to be addressed of whether she has a right to recover for damages in regards to the destruction of her “work of visual art”. Congress enacted VARA in order to “protect… both the reputations of certain visual artists and the works of art they create.” H.R. Rep No. 101-514, 101st Cong. at 7 (June 1,1990). Through this act, artists are granted “moral rights” or the right to remedy the situation, which include the rights of attribution and integrity that permit an author to (a) prevent any intentional distortion, mutilation, or other modification of that 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, and (b) prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right. 17 U.S.C. § 106A(a)(3). However, in order for Elmwood to prove there was a violation of this right and to recover for damages due to destruction of her work, the following elements must be met:
1.) Whether artist is the actual author of the “work of visual art”
a.) Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. 17 U.S.C. § 106A(b).
b.) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author.17 U.S.C. § 106A(e)(1).
2.) Whether work qualifies as a “work of visual art”
a.) The artistic work is a painting, drawing, print, or sculpture,
TO: Supervising Attorney Maureen Kordesh
Subject: elmwood V. ridgeland
DATE: DECEMBER 5th, 2012
QUESTION PRESENTED
Whether Elmwood’s artistic work qualifies as a “work of visual art” and whether she was the author of said work under the Visual Artist’s Rights Act of 1990 (VARA); if these elements are met, the issue needs to be addressed of whether she has a right to recover for damages in regards to the destruction of her “work of visual art”. Congress enacted VARA in order to “protect… both the reputations of certain visual artists and the works of art they create.” H.R. Rep No. 101-514, 101st Cong. at 7 (June 1,1990). Through this act, artists are granted “moral rights” or the right to remedy the situation, which include the rights of attribution and integrity that permit an author to (a) prevent any intentional distortion, mutilation, or other modification of that 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, and (b) prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right. 17 U.S.C. § 106A(a)(3). However, in order for Elmwood to prove there was a violation of this right and to recover for damages due to destruction of her work, the following elements must be met:
1.) Whether artist is the actual author of the “work of visual art”
a.) Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner. 17 U.S.C. § 106A(b).
b.) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author.17 U.S.C. § 106A(e)(1).
2.) Whether work qualifies as a “work of visual art”
a.) The artistic work is a painting, drawing, print, or sculpture,