After the Storm

Sandy caused havoc for galleries, artists, and collectors; thousands of works were damaged or destroyed. Now what?

THE SILVER LINING BEHIND writing this column-in addition to the random fan letters we get from bored museum guards and our mother-is receiving interesting questions from our readers.  In the wake of Hurricane Sandy, queries flowed in concerning the sometimes arcane laws affecting damaged works of art.

     The first wave of questions concerned the Visual Artists Rights Act of 1990 (VARA).  This often misunderstood federal statute permits artists to take their names off damaged works (the “right of attribution”) and allows them to prevent an intentional modification of their art that would harm their reputations (the “right of integrity”).

Q.  Three beautiful seascape watercolors that I painted were washed away in the hurricane after their idiot owner stored them in his pool cabana. May I sue for damages under VARA?

A.  No.  Under VARA’s right of integrity, an artist may claim damages only for the intentional distortion, mutilation, or other modification of art that would prejudice the artist’s honor or reputation.  This would preclude your recovery even if the owner were negligent in storing works in an unsafe location.

Q.  Good news:  The idiot owner just found one of the watercolors, but now he wants to have his grandson do the restoration.  What if he screws up the job?

A.  The owner could be liable under VARA if the conservation effort is so botched as to constitute “ gross negligence.”  In the 2010 U.S. District Court case Ascalon v. Department of Parks & Recreation, sculptor David Ascalon sued the Jewish Federation of Greater Harrisburg for violating VARA after the Federation replaced the sculpture’s rust-colored “barbed wire” element with a stainless steel replica, and replaced the artist’s name on the piece with the name of the restorer.  The case was settled, with the parties agreeing that Ascalon would remake the barbed wire element in rust-colored steel and his name would be restored to the work.

Q.  I am the “idiot owner” of the watercolors at issue, and have two questions.  First: I have a beachfront estate in Southampton and the artist lives above his aunt’s garage in Yonkers-so who’s the idiot? Second: How can I limit my legal liability under VARA when having the artwork restored?

A.  Follow “best practices,” such as those promulgated by the American Institute for Conservation; consult with the artist directly about restoration; and ideally, try to obtain from the artist a written waiver of VARA rights for conservation.  Unlike comparable artist-rights laws in most European countries, VARA allows artists to sign away their rights.

Q.  Would VARA apply to my limited-edition print of boxer Rubin “Hurricane” Carter?

A.  It depends.  VARA does not apply to art in editions of 200 or more signed and numbered copies.

Q.  Even if a print were done by a famous artist like LeRoy Neiman, who passed away just last year?

A.  VARA doesn’t apply to works by deceased artists.

Q.  What if the artist’s career is dead?

A.  Not our problem.

Q.  How about an older work?

A.  VARA doesn’t apply to works of art that were created or modified before June 1, 1991, which was the effective date of the statute.

Q.  I’m worried that a certain difficult artist (hint: He lives in Yonkers) will demand to have his name removed from a damaged watercolor, as permitted under VARA.  Does this sort of thing happen often?

A.  Not in our experience.  The trickier question is to what extent minor, reparable damage would give rise to this right.  Unfortunately, VARA gives no guidance on this point, and there is little case law in this area.  However, in one recent case, artist Cady Noland exercised her right to disclaim authorship on a work she considered damaged.

Q.  Does VARA apply to unfinished works?

A.  Yes, according to the 2010 ruling Massachusetts Museum of Contemporary Art Foundation, Inc. v. Buchel, where the U.S. Court of Appeals for the First Circuit stated:  “That convergence between artist and artwork does not await the final brushstroke or the placement of the last element in a complex installation.”

Q. How about site-specific works?

A.  The tide may be turning on this one.  Although the court in the 2006 case Phillips v. Pembroke held that VARA did not apply to site-specific sculptures, a different reasoning was applied in 2011 with Kelly v. Chicago Park District, which involved a wildflower garden created by artist Chapman Kelley that park officials sought to reconfigure.  There, the United States Court of Appeals observed that “Site-specific art-like any other type of art-can be defaced or damaged.”  The court nevertheless dismissed the artist’s VARA claims, reasoning that a living garden does not qualify for copyright

      The second wave of questions were from readers who were a bit more…at sea:

Q.  What changes can I expect to see in my art insurance coverage post-Sandy?

A.  You’ll see more watertight provisions in favor of underwriters.  For instance, works might be covered by insurance only if kept above flood level and if a gallery strictly follows the insurer’s instructions to relocate art before an impending storm.

Q.  My sculpture of our schnauzer was destroyed in the hurricane. The artist is now refusing to refabricate it, but since I owned the sculpture (and the schnauzer), can I reproduce it myself?

A.  No. Owning a work of art does not give you the right to reproduce it; only the copyright holder may do so. Last we checked, only God can create schnauzers, so-unless your artist is Jeff Koons and he consents-you should treat this as water under the bridge.

Q.  I own a conceptual work and the certificate of authenticity was washed away (but the certificate lives on in my imagination). The artist, or the estate, must issue a new certificate, correct?

A.  Good thinking-but no. The estate of Dan Flavin, for instance, typically does not issue replacement certificates, and Flavin himself reportedly boasted, “I did my certificates on pulp paper because I knew they would disintegrate.”

Q.  An ex-employee sued my gallery as a result of a small misunderstanding (the police report had it all wrong) and has won a judgment against the gallery. Can she go after insurance proceeds for works consigned by artists to the gallery that were damaged in the hurricane?

A.  Not any more. The New York Arts and Cultural Affairs Law, which was strengthened on September 7, 2012, states that art, and proceeds from art (such as insurance proceeds), held in trust for an artist by a gallery cannot be reached by the gallery’s creditors. Dealers who violate the law are now subject to criminal penalties and liable for legal fees incurred by artists in enforcing their rights-a sea change for younger artists.

Q.  What made you two brothers decide to practice law together?

A.  Cloudy judgment.

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