OREGON IP / 9th Circuit / Art

Burn the bus if you must, but you may want to keep the mural

Published August 1, 2016

Think twice before throwing out that old painting in your garage: you could face damages for violating Copyright Law. But what if that art isn’t just in your garage, but parked in your front yard, or painted on a wall of your building? That all depends.

Under the 1990 Visual Artists Rights Act (VARA), an artist of a work of “visual art” has the right to:

  • “prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation” and
  • “prevent any destruction of a work of recognized stature.”

VARA defines “visual art” to include paintings, drawings, prints, sculptures, and photographs. But works of art do not always fall into such clear categories, and the application of VARA to different art forms—such as “public” art on private property—raises many interesting questions.

Discussed below are a 9th Circuit decision that issued last month addressing the destruction of an “art” vehicle in Nevada and current controversies in Portland, Oregon concerning the threatened destruction of murals.

A bus is just a bus, even when it looks like a Spanish Galleon

In Cheffins v. Stewart, Case No. 12-6913 (9th Cir., June 8, 2016), the 9th Circuit Court of Appeals ruled in favor of a defendant that destroyed a rather unusual vehicle that had been left on his land. The vehicle, called the La Contessa, was a school bus that had been modified with significant effort to look like a 16th-century Spanish galleon.

The La Contessa provided rides to participants at the Burning Man Festival from 2002-2005 before it was stored, with permission, on property in Nevada. After the property was sold, the new owner burned the wooden structure so a scrap metal dealer could remove the bus.

The La Contessa creators filed suit in Nevada, alleging that the new landowner violated VARA by destroying the bus. The district court found in favor of the defendant and the 9th Circuit agreed, finding that the La Contessa was not a sculpture, but instead was “applied art,” which is specifically excluded from protection under VARA. The focus of the inquiry, the 9th Circuit explained, is “whether the object in question originally was—and continues to be—utilitarian in nature.” Because the La Contessa provided rides to participants at Burning Man, it was functionally no different than the bus from which it originated.

A wall is just a wall, unless it’s a mural

A recent article in Willamette Week discussed the threatened destruction of a number of murals on private buildings throughout Portland, including a well-known Black Lives Matter mural located outside of the Bonfire Lounge on South Stark Street. When the Bonfire Lounge was sold recently, the new owner wanted to paint over the mural. But, due in no small measure to a social media campaign by the artist and community threats to boycott the business, the mural remains…for now.

Unlike the modified school bus, wall murals may fall under VARA’s protections. In 2008, one of the largest VARA wins—a $1.1 million settlement—involved the destruction of a mural. That settlement was obtained by Los Angeles artist Kent Twitchell, under VARA and a similar California statute, when his six-story mural of Ed Ruscha was painted over on a government building.

The protected status of murals depends, in part, on whether the mural can be removed intact. If a mural can be removed without destruction, the owner of the building may be required to notify the author and give the author the opportunity to remove it or pay for its removal within 90 days. If the mural cannot be removed without destroying it, which is likely to the case for most murals, then the artist’s rights will depend on whether the mural was installed before or after the enactment of VARA, whether the artist agreed in writing that the mural can be removed, and whether the mural is “of recognized stature.”

Establishing that a mural is “of recognized stature” may not be easy. In addition, the cost of litigation will deter many artists from filing lawsuits under VARA. Not only is litigation expensive, but the statute provides attorneys’ fees for the prevailing party. If a VARA challenge is made and fails, the artist may be required to pay the cost of the defense.

For now, the Black Lives Matter mural and a number of other murals threatened by Portland’s development boom remain, but for how long?


Posted on 08/01/2016 by Deakin T. Lauer and Derrick W. Toddy