Muddling Artist’s Moral Rights

A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California
A now-faded and defaced bicentennial mural painted on the Prado Dam spillway in Corona, California.

The National Historic Preservation Act has come to the rescue of this mural from 1976, which is badly in need of conservation. But in the process a federal court has muddled the Moral Rights of Artists moving forward. The mural on the Prado Dam near Corona, California was painted by High School students from Corona High School. The Army Corps of Engineers, which manages the dam and spillway planned to remove the mural over concerns of lead paint, tagged graffiti artists who replaced the 1776 with “TOPS”. Carolina Miranda reported for the L.A. Times in June that the image “has become one of the region’s more iconic, unofficial freeway landmarks”. Two groups sought protection in Federal Court for the mural, both the Mural Conservancy of Los Angeles, and one of the original artists and designers of the mural, Ronald Kammeyer.

Nicholas O’Donnell summarizes a recent lawsuit in California which sought to protect this mural. He comes to the conclusion that the Court managed to misunderstand some of the key provisions of the act:

First, the Court accepted (and perhaps the government failed even to understand to challenge) that the plaintiffs have any VARA rights at all.  They almost certainly do not.  VARA rights exist from the date of creation and for the life of the author.  They cannot be assigned or inherited.  That standard applies, as with most laws, to anything created after the effective date of the statute.  But what about earlier works?  The Supreme Court has long held that statutes do not have retroactive effect unless they say so explicitly.  VARA does, but in an usual way:

‘With respect to works of visual art created before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, but title to which has not, as of such effective date, been transferred from the author, the rights conferred by subsection (a) shall be coextensive with, and shall expire at the same time as, the rights conferred by section 106.’

The mural predates the effective date of VARA, obviously.  So the plaintiffs—if they are the “Author”—could only assert VARA rights if they had not transferred title to the physical work (not the copyright, which one or more of them undoubtedly still holds).  But none of the plaintiffs claimed to own the mural, either when it was painted or now.  Someone, possibly Kammeyer alone, possibly Kammeyer jointly with the volunteers who helped him, owns the copyright.  That will endure either alone or as joint work, under the term of copyright.  But could any of them claim to have owned title to the physical work in 1976?  On a federally-owned flood management dam?  It seems a stretch.

The opinion misses this threshold question entirely.  Second, VARA is absolutely a “lifelong” veto when it applies.  That is exactly what it is supposed to endow on the artist.

Good writing matters, both in drafting judicial opinions and also in drafting legislation. The Court and attorneys could be given at least a little reprieve from us as the act it self is terribly arcane. Congress did us no favors when drafting this piece of legislation. I have to agree with O’Donnell—when there are so few judicial opinions in the United States which take up the moral rights of artists, to miss so badly on some key provisions is a missed opportunity.

The Court ultimately upheld the injunction on the basis of the National Historic Preservation Act as the Army Corps of Engineers failed to comply with that act’s “stop, look, and listen provision” which requires federal agencies to “make a reasonable and good faith effort to identify historic properties”. But not before muddling the slowly diminishing respect for the moral rights of artists under VARA.

  1. Kammeyer v. Oneida Total Integrated Enterprises, No. EDCV15869JGBKKX, 2015 WL 5031959 (C.D. Cal. Aug. 24, 2015).
  2. Nicholas O’Donnell, New VARA Ruling Muddies Analysis on Moral Rights and Significance of “Site Specific” Art Art Law Report (2015), http://www.artlawreport.com/2015/11/12/new-vara-ruling-muddies-analysis-on-moral-rights-and-significance-of-site-specific-art/.
  3. Carolina A. Miranda, Court order halts destruction of Prado Dam bicentennial mural in Corona latimes.com (2015), http://www.latimes.com/entertainment/arts/miranda/la-et-cam-restraining-order-temporarily-halts-destruction-of-40-year-old-mural-on-prado-dam-20150609-column.html .

Ninth Circuit to hear Artist’s Resale Rights Appeal

In 2001 a number of artists including Chuck Close, Laddie John Dill, and the estates of Robert Graham and Sam Francis brought suit against auction houses and eBay to receive royalties they had been owed under California’s Resale Royalty Act. That Moral Rights legislation provided that visual artists should receive 5% of the resale price when their work was resold by a California resident, or resold in the state of California for more than $1,000. The District Court struck down the law as unconstitutional on the grounds that commerce like this must be regulated at the federal level under the Commerce Clause to the Constitution. Continue reading “Ninth Circuit to hear Artist’s Resale Rights Appeal”

Losing California’s ancient petroglyphs

Rock art destruction and looting in California's Owens Valley
Rock art destruction and looting in California’s Owens Valley

Central California PBS affiliate KVIE has a segment showing and discussing the theft and destruction of ancient petroglyphs from California. It shows some of the sites themselves, the damage they have suffered, and a good overview of the laws protecting these sites. The segment really hits its stride in pointing out the disconnect between laws protecting these sites, and the local populations. There is a lot more public awareness needed. People should know better, but they don’t yet, and cultural resource managers need to redouble their efforts to do a better job educating the public about why they shouldn’t damage sites and remove items.

 

The full segment is below the jump.

 

 

Continue reading “Losing California’s ancient petroglyphs”