by Jack Munday, Esq.

Which one of the following words doesn't belong with the others? The words are: lawyers, real estate owners, moral rights, sculptures, bulldozers and the public domain. The answer, of course, is that only the public domain is outside that interesting collection of words.

In 1990, the Visual Artists Rights Act. 17 U.S.C. § 106A was added to the copyright laws, hence lawyers are involved with those items that qualify as visual arts. These things include paintings, drawings, photographs, sculptures and the like, provided that less than 200 copies exist, that the author has signed or placed an identifying mark thereon, and has numbered them consecutively beginning with the first or original version. Thus sculptures would seem to qualify, and in fact do qualify under this provision of the law if it is placed in a building in such a way that it cannot be removed from the building without modification or destruction. An example would be a major sculpture created in the lobby of a building , and, of course, the fact that it is in a building means that there is a real estate owner involved. Real estate being what it is, mainly something far less lasting than art, there often comes a time when the owner decides to change the nature of a property, such as by making a parking lot out of the building. The use of a bulldozer or other form of building destruction would, in its use, also destroy the sculpture. To destroy a wonderful, or not so wonderful, work of art is a violation of the author's moral right. And all that is true unless the work of art is in the public domain.

This law is new and applies only to visual art that is protected by a copyright and that is not created as a work for hire. There is one major decision on this provision in which an artist was successful in preventing a major property management firm from removing the work from the lobby. A trial judge actually found that the work was one of recognized stature and removing the work would in fact damage the artists' reputation.

What does this mean to building owners? They are having their lawyers draw up the appropriate contract language to make sure this never happens again. In fact, real estate lawyers who don't take this law into account when it fits may be guilty of malpractice.

What does this mean to a metalsmith? It means that when a metalsmith creates a work of visual art by creating a sculpture, and when that sculpture is placed in a building on display, the metalsmith also creates certain rights that may be valuable to him. These rights are attribution rights and integrity rights. The former includes the right to have the author's name used in conjunction with a display of the work and also to prevent the use of the author's name after the work has been distorted, mutilated or modified to be prejudicial to his or her honor or reputation. Integrity rights permit the author to prevent any intentional distortion, mutilation or other such modification. Under some circumstances that means the building can't be torn down and even, possibly, that the sculpture can't even be removed.

Which brings me back to the lawyer in the situation. If you create sculpture or any other visual art, see an intellectual property lawyer before you create it and before you sign any contract relating to that creation. Knowing your rights puts you no worse than on equal footing with the building owner.

John S. Munday

Munday and Stanton

3434 Garrett Road, Suite 100

Drexel Hill, PA 19026 610-259-2381

Jack Andrews

Current Address

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Copyright 1996 ArtMetal / John S. Munday

ArtMetal Editor/Curator: enrique

Last Updated:Tue, Sep 17, 1996