Diego Rivera and the Paintbrush of Destiny

As part of our website revamp, I am in the process of adding content about the various murals located around the building. One of the best pieces is a little removed from the lobby and spans a couple floors so I have made a video and map to help guide people to it.

So it was with great interest that I read a recent piece on NPR about the rights visual artists, especially muralists, can exert to determine the disposition of the buildings in/on which they are painted.

As I started reading, I began to worry that more people might refuse to allow murals to appear on the sides of their buildings if they were aware of these issues. However, the story notes that Philadelphia, which has a robust, formal mural program, has found ways to strike a balance and work with both the artist and building owner to find some sort of accommodation. They are likely a good source for advice on these matters.

Only works created after 1990 enjoy this protection under the Visual Artists Rights Act (VARA). So Diego Rivera’s paintbrush technically hasn’t altered the destiny of any buildings as far as the Act is concerned.

This piece from the National Endowment for the Arts and this one from the Arts & Business Council of Greater Philadelphia do a pretty good job of explaining various aspects of the law.

One thing I think bears emphasizing since many of the commenters on the NPR story get it wrong is that while works for hire are not covered under the VARA, that does not mean that only works created for free are covered. If you are commissioned to create a work as an independent contractor and get paid for it, your work is covered. This is clearly stated in the Arts and Business Council flyer, but I wanted to reinforce that.

The reason I think it is particularly important to be aware of this law is because so many communities are utilizing murals to help spruce up the neighborhood. Often these murals are on abandoned buildings that are good candidates for destruction should those murals generate the the desired positive ambiance and attract new residents and businesses.

Since the rights are retained until the death of the last surviving creator, it might be good to form a general agreement that the work is being created with the expectation (and perhaps hope) that someone will eventually destroy it.

The other thing to note is that the VARA deals with the artist’s moral rights to the work which can never be given away. The artist can transfer ownership, but can’t give up their moral rights. Per the NEA Office of General Counsel article:

“VARA restricts the exercise of the rights of attribution and integrity to the author or joint authors of the artwork, regardless of whether he/they hold title either to the copyright or the artwork itself. Thus while both copyright and physical ownership are property rights which may be transferred, moral rights may not be transferred. Moral rights may, however, be waived. The waiver instrument must be very specific: the creator must consent in a written and signed instrument specifically identifying the artwork, the uses of that work, and with a clause limiting the waiver to both aspects.”

So even if a mural was presented as a birthday present to someone, the next owner of the building can’t immediately bulldoze it as the new owner of the mural. Notice of 90 days must provided to the artist(s) during which period of time they can take whatever action they decide is necessary from a final visit to take pictures before it is destroyed to seeking a court injunction against the demolition.

The one issue that isn’t really addressed is what protections exist for art that someone produces uninvited. People go out and paint over unwanted graffiti everyday….unless it is a Banksy in which case they may chisel out the section of the wall and sell it at auction.

If someone cares enough to chisel it out and keep it, aren’t they admitting it is valuable and not a nuance? So if Banksy (or Banksy’s lawyer) shows up and says the art is site specific (which many clearly are) and may not be moved/destroyed/defaced per VARA, who has the right to determine what happens with the work?

About Joe Patti

I have been writing Butts in the Seats (BitS) on topics of arts and cultural administration since 2004 (yikes!). Given the ever evolving concerns facing the sector, I have yet to exhaust the available subject matter. In addition to BitS, I am a founding contributor to the ArtsHacker (artshacker.com) website where I focus on topics related to boards, law, governance, policy and practice.

I am also an evangelist for the effort to Build Public Will For Arts and Culture being helmed by Arts Midwest and the Metropolitan Group. (http://www.creatingconnection.org/about/)

My most recent role was as Executive Director of the Grand Opera House in Macon, GA.

Among the things I am most proud are having produced an opera in the Hawaiian language and a dance drama about Hawaii's snow goddess Poli'ahu while working as a Theater Manager in Hawaii. Though there are many more highlights than there is space here to list.


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