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Hastings Communications and Entertainment Law Journal

Article Title

VARA's First Five Years

Abstract

This article addresses the background, provisions, and brief history of the Visual Artists Rights Act of 1990 (VARA), a federal law protecting the "moral rights" of visual artists. These non-economic rights, which give artists some control over their creations even after the works are sold, have a long history in continental Europe, but are a recent import to the United States. After American courts declined to recognize such rights under common law earlier in this century, approximately a dozen states enacted laws protecting the rights of creators of "fine art." These statutes generally protect the artist's right of integrity-to protect the work from alteration, distortion, or destruction-and the right of attribution-to have her name associated with her work, and not to have her name associated with works she did not create or with distorted versions of her work.

In an effort to bring federal uniformity to this area of law and to comply with the Berne Convention, Congress passed VARA, which became effective June 1, 1991. The few litigated cases since VARA's enactment that have resulted in published decisions have raised a number of interesting and difficult questions concerning the operation of the statute. This article discusses those cases and the issues they have raised and resolved-and left unresolved. Those issues include the extent to which VARA preempts analogous state moral rights laws and whether the takings clause is implicated by VARA's provision protecting fine art affixed to real property. Finally, this article discusses the recent report mandated by Congress and produced by the Register of Copyrights analyzing whether the rights created by VARA should be made non-waivable by artists.

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