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 .

Backlash over Federal Arrests in the Southwest

https://i1.wp.com/www.delsjourney.com/images/news/news_02-07-01/2-3855_Butler_Wash.jpg?resize=420%2C280Brendan Borrell has an interesting piece for Scientific American following up on the number of arrests which focused on the theft of Native American objects from the four corners region, which has been described as a massive outdoor museum.  Pictured here are the Butler Wash ruins near Blanding. 

Two Utah senators, Orrin Hatch and Bob Bennett have both called on Congress to investigate the actions of the federal agents surrounding the arrests, which led to one apparent suicide, the raid of one home for 10 hours, involving 300 agents and a SWAT team. 

One of those arrested, Brent Bullock tells Scientific American, “I’m guilty of arrowhead collecting, as is two-thirds of this town.”  It seems he:

[T]ried to sell a blanket fragment, fireboard, and stone hoe known as a Tchamahia. In a phone interview, he said that, like Lacy, he was also asked to identify the spot where the items were obtained and he subsequently signed a Letter of Provenance.  He says agents later showed up at his house, placed his arrowheads and other artifacts in bags, and photographed them although they did not have permission to seize his or any other artifacts yet. “They ripped this place apart,” he says. “This town is all stirred up.”

Criminal penalties may help to ease the taking of objects from these sites, but they also create a great deal of anger and resentment.  I think rather than just focusing on the arrests and the backlash, we should also pay attention to much of the education and outreach being conducted.  Were all of these individuals really hardened criminals, bent on destroying archaeological heritage to sell antiquities?  I’m sure some may have been, but the investigation seems to be failing spectacularly at convincing at least some local residents the importance of heritage preservation.  What will happen when the attention of federal authorities goes elsewhere?  Criminal penalties are important, and certainly justified in many cases.  But I would like the attention being paid to this controversy to focus on some practical initiatives that can do a lot of good before looting and destruction take place.  Take a few examples such as:  volunteer programs, initiatives such as the Comb Ridge project, and continued recruitment of site stewards
Questions or Comments? Email me at derek.fincham@gmail.com

Byrne on Preserving Gettysburg

J. Peter Byrne, Georgetown, has posted Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law 22 Tul. Envtl. L.J. 203 (2009) on SSRN.  Here is the abstract:

This article seeks to deepen legal analysis of historic preservation law by analyzing how contemporary presuppositions and legal tools shape changing preservation approaches. It is organized around legal disputes concerning the Gettysburg battlefield, a site of great national significance, which has been preserved in different forms for nearly 150 years. The paper describes the history of preservation at Gettysburg. It argues that the Supreme Court’s constitutional approval of federal acquisition of battlefield land in 1896 reflected contemporary conservative nationalism. It also analyzes how legal tools for preservation of land surrounding the battlefield have evolved from simple ownership to coordinated regulation and contract, breaking down the traditional stark division between protected and commercial land. Finally, the article examines how the National Historic Preservation Act governs government choices about what to preserve and how to interpret it. Because preservation of a site associated with a significant event inevitably will reflect contemporary interpretative biases, the law should mandate inclusive processes for making preservation choices and encourage the presentation of multiple perspectives.
Questions or Comments? Email me at derek.fincham@gmail.com