VARA Does Not Apply to "Site-Specific" Art

Phillips v. Pembroke Real Estate, Inc., the First Circuit concluded that the Visual Artists Rights Act of 1990 ("VARA"), 17 U.S.C. § 106A, does not protect "site-specific art," where one of the components of the work is its physical location.

Under the VARA, the "author of a work of visual art" has the moral right

(A) to 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) to 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.

A “work of visual art” is defined as

(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

However, "The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification, unless the modification is caused by gross negligence."

Artist David Phillips brought suit against Pembroke Real Estate, Inc. in federal district court, asserting that the removal of any or all of his work, consisting of multiple pieces of sculpture and stonework, from Eastport Park in South Boston would violate his statutory rights under VARA. According to Circuit Judge Lipez,

A work of "integrated art" is comprised of two or more physical objects that must be presented together as the artist intended for the work to retain its meaning and integrity. In a work of "site-specific art," one of the component physical objects is the location of the art.

By definition, site-specific art integrates its location as one of its elements. Therefore, the removal of a site-specific work from its location necessarily destroys that work of art. Here, the district court concluded that VARA recognized site-specific art as a type of integrated art, and then concluded that VARA treats site-specific art the same way that it treats other integrated art. However, a work of integrated art, unless it is a site-specific work, is not destroyed by removal from its location.

. . . Ultimately, we agree with Pembroke's position that "[t]here is no basis for Phillips' claim that VARA establishes two different regulatory regimes: one for free-standing works of art . . . and one for site-specific art that can never be moved and must always be displayed." VARA's plain language also requires us to reject the district court's approach to site-specific art. VARA does not protect site-specific art and then permit its destruction by removal from its site pursuant to the statute's public presentation exception. VARA does not apply to site-specific art at all.

We do not denigrate the value or importance of site-specific art, which unmistakably enriches our culture and the beauty of our public spaces. We have simply concluded, for all of the reasons stated, that the plain language of VARA does not protect site-specific art. If such protection is necessary, Congress should do the job. We cannot do it by rewriting the statute in the guise of statutory interpretation.

. . . we affirm the decision of the district court permitting Pembroke to remove Phillips' works from the Park.