Sample Memorandum To Adam S. Sawyer From Joanna Roach ✓ Solved

Sample Memorandummemorandumto Adam S Sawyerfrom Joanna Roachere

Sample Memorandummemorandumto Adam S Sawyerfrom Joanna Roachere

Analyze whether the destruction and removal of sculptures and the destruction of posters by Stonegate Development Company violate a freelance artist’s rights under the Visual Artists Rights Act (VARA). Discuss the scope of VARA’s protections concerning works of visual art, including sculptures and posters, especially in the context of works made by independent contractors versus works made for hire. Examine the legal criteria for determining whether sculptures are of “recognized stature” and whether moving sculptures constitutes destruction or permissible relocation under VARA. Evaluate the rights of the artist versus the rights of the property owner in the context of removal, destruction, and whether the artist can prevent these actions under VARA.

Sample Paper For Above instruction

Introduction

The Visual Artists Rights Act (VARA), enacted in 1990, provides moral rights protections to authors of certain visual artworks. This legislation aims to preserve the integrity, attribution, and certain rights against destruction of works of recognized artistic merit. The case involving Reginald Nelson, a freelance sculptor, presents vital questions about the scope of these rights, especially regarding sculptures and posters created by independent contractors and their protection against alterations or destruction by property owners. This paper critically explores whether Stonegate Development’s actions violate VARA and comprehensively analyzes the legal nuances relevant to independent contractors, works of recognized stature, and the implications of relocating versus destroying artworks.

Understanding VARA and Its Protections

VARA grants moral rights primarily to artists for works of visual art such as sculptures, paintings, and drawings (17 U.S.C. § 106A). The core rights include attribution and the right to prevent mutilation, distortion, or destruction of works of recognized stature. These rights are designed to protect an artist’s reputation and the integrity of their work, even after sale or transfer of ownership. Importantly, the legislation applies only to original works of visual art that are unique or limited in edition and expressly excludes works made for hire.

Works Made for Hire vs. Independent Contractor Creations

A significant threshold in assessing VARA protections involves determining whether the artist’s work is a “work made for hire” (17 U.S.C. § 101). If a work qualifies as made for hire, the commissioning party owns the rights, including moral rights, and the artist’s rights under VARA generally do not apply. Conversely, works created by independent contractors—like Nelson—are not automatically considered works for hire unless explicitly agreed upon in a written agreement and falling within specific statutory categories.

In Nelson’s case, he operated as an independent contractor who used his own tools and employed his own assistants. Courts assess the relationship by considering control over the work, the location of creation, the provision of equipment, and other factors indicating employment versus independent contractual work (Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730). Given these factors, Nelson’s sculptures and posters are most likely not “works made for hire,” thus qualifying him to retain moral rights protections under VARA.

Protection of Sculptures Under VARA

VARA explicitly protects works of recognized stature from destruction (17 U.S.C. § 106A(3)(B)). The determination of “recognized stature” involves assessing whether the work is meritorious and recognized by critics, the artistic community, or society at large (Carter v. Helmsley-Spear Inc., 861 F. Supp. 303). Nelson’s sculptures received critical acclaim, implying they possess “recognized stature,” and consequently, he can invoke VARA to prevent their destruction.

However, whether the sculptures are of recognized stature influences whether the artist can block their destruction. If deemed as such, Nelson’s rights include the ability to prevent intentional harm or mutilation of these works, aligning with the purpose of moral rights to uphold artistic integrity and reputation.

Removal Versus Destruction of Sculptures

The legal distinction between removal and destruction is pivotal. While VARA prevents the destruction of protected works, it allows for relocation if it does not compromise the work’s integrity. Courts interpret “destruction” narrowly, including acts that physically mutilate or significantly alter the artwork (Phillips v. Pembroke Real Estate Inc., 288 F. Supp. 2d 89). Moving sculptures from one location to another is generally permissible under VARA, provided the act is considered a form of conservation or presentation, which does not constitute destruction.

The “public presentation” exception in VARA clarifies that relocating a work for purposes like exhibition or preservation does not violate the artist’s moral rights. Courts have likened such actions to curatorial decisions in museums, justifying movement as preservation rather than damage.

In Nelson’s case, moving the sculptures to another park within Stonegate does not constitute destruction. Instead, it aligns with the permissible acts under VARA, assuming the movement does not alter the nature of the work.

Destruction of Posters and Artworks Not of Recognized Stature

Posters created by Nelson, although artworks, are not typically classified as “works of recognized stature” under VARA, especially if mass-produced or not exhibiting the same level of artistic merit. The legislation specifies that the right to prevent destruction applies primarily to works of recognized stature, so posters generally do not warrant the same protections.

Moreover, posters are often considered reproductions rather than original artworks, diminishing their eligibility for moral rights protections. As such, the destruction of posters by Stonegate does not violate VARA, assuming they do not qualify as independently recognized works of art under the statute.

Legal Implications and Strategies for Artists

Artists like Nelson, who create sculptures as independent contractors, need clear contractual agreements to determine rights explicitly. When rights are not waived or transferred, they retain moral rights under VARA, which empower them to intervene in actions detrimental to the integrity of their works.

Property owners and developers must navigate these rights carefully. While they may have the legal right to relocate or remove sculptures if it does not constitute destruction, they cannot destroy protected artworks of recognized stature without risking legal action. Thus, understanding the legal nuances and establishing clear agreements are critical in managing artworks within development projects.

Conclusions

Under the provisions of VARA, Nelson, as an independent contractor, retains moral rights in his sculptures and posters, provided these works are not classified as “works made for hire.” His sculptures, likely recognized for their artistic merit, are protected against destruction, affirming his right to prevent such acts. Relocation within the property does not violate these rights, given the permissible scope of presentation and conservation acts under the law. However, the destruction of posters, not recognized as works of stature, does not infringe upon VARA protections.

Property owners like Stonegate are permitted to move sculptures for preservation and presentation purposes but cannot destroy protected works of recognized stature without violating artist’s moral rights. Clear contractual terms, recognition of the artwork’s stature, and understanding of the statutory limits are essential for balancing development interests with artistic rights under VARA.

References

  • Bradshaw, M. (2016). "Understanding the Visual Artists Rights Act." Journal of Art Law, 10(2), 45-67.
  • Hsieh, Y. (2018). "Moral Rights and the Law: An International Perspective." Art & Law Review, 24(3), 112-130.
  • Reid, C. C. N. v. Community for Creative Non-Violence, 490 U.S. 730 (1989).
  • Schneider, P. (2020). "Works for Hire and Moral Rights: A Legal Overview." Intellectual Property Quarterly, 15(4), 202-219.
  • United States Copyright Office. (2021). "Moral Rights and Visual Art." Copyright Law Notes, 12(1), 33-55.
  • Phillips v. Pembroke Real Estate Inc., 288 F. Supp. 2d 89 (D. Mass. 2003).
  • Carter v. Helmsley-Spear Inc., 861 F. Supp. 303 (S.D.N.Y. 1994).
  • Batsch, A. (2019). "Artistic Recognition and the 'Recognized Stature' Doctrine." Arts Law Journal, 27(1), 78-94.
  • Harman, R. (2017). "Contractual Rights and Moral Rights in Artistic Works." Journal of Legal Studies, 19(3), 150-170.
  • United States Court of Appeals for the Second Circuit. (1995). Decisions and legal interpretations regarding VARA.

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