Legal research and writingII_A2

SAMPLE MEMORANDUM

MEMORANDUM

To: Adam S. Sawyer

From: Joanna Roache

RE: Reginald Nelson

Visual Artists Rights Act

Date: January 30, 2013

ISSUE

Under the Visual Artists Rights Act, do destruction and removal of sculptures and destruction of posters violate a freelance artist’s rights to prevent destruction or modification of his works of visual art?

BRIEF ANSWER

Under the Visual Artists Rights Act, a freelance artist has the right to prevent destruction of his sculptures but not removal of them to another location. Moreover, an artist has no right to be compensated for destruction of posters because these are not works of “visual art” as defined by the Act.

FACTS

Our client, Reginald Nelson (“Nelson”), is a nationally known freelance artist and sculptor. Nelson works primarily with granite and bronze forms although he has also created lithographs and posters. Four years ago, Nelson signed a written contract with Stonegate Development Company (“Stonegate”) by which he agreed to create a variety of sculptures to be placed in a small park owned by Stonegate and located outside of a commercial building Stonegate was developing. Working in his studio, with a few of his long-term assistants, Nelson created six original bronze sculptures for placement in the park, all of which displayed his signature curving motifs. The park included a variety of other elements not

designed by Nelson, such as benches and picnic tables. After the sculptures were unveiled, a number of art critics and artists hailed them as having significant artistic merit. Nelson then created posters of the sculptures, which Stonegate placed in the building lobby. Stonegate fully paid for all of Nelson’s work.

Two months ago, Stonegate began to redesign its park. It plans to destroy two of the sculptures and move the remainder to another one of its parks. Stonegate also destroyed the posters in the building lobby and replaced them with those by another artist.

DISCUSSION

The Visual Artists Rights Act and Works Made for Hire

In 1990, Congress passed the Visual Artists Rights Act (“VARA” or the “Act”) to allow artists to prevent any intentional destruction, mutilation, distortion, or other modification of their works of visual arts. 17 U.S.C. § 106A (2006). These rights are often referred to as “moral rights” and are intended to allow artists to protect their artistic reputations, even after they have sold their works.

The Act provides three specific rights: the right of attribution, which is the author’s right to be known as the author of a work; the right of integrity, which ensures that the work not be distorted, mutilated, or misrepresented in a way that would injure the artist’s reputation; and in the case of works of visual art of “recognized stature,” the right of the author to prevent destruction of the work.

The Act, however, is quite limited and applies only to works of visual arts such as paintings, drawings, and sculptures that exist in a single copy or in limited editions. Id. In the present case, the original sculptures are works of visual art covered by the Act. The Act, however, excludes from its protection works made for hire. Id.

A work made for hire is one that is presumed to be authored by an employer because it was created by an employee on company time or authored by a party specially commissioned to create the work when the parties have agreed in writing that the commissioning party will own

the copyright and the work falls into one of nine statutorily enumerated categories. 17 U.S.C. § 101 (2006).

In the present case, Nelson was a freelance artist and not Stonegate’s employee. If Nelson were an employee, Stonegate would be the presumptive owner of all rights in the works. Nelson was an independent contractor who was specially engaged by Stonegate to create the works in question. Although some cases have examined whether freelancers are, in fact, employees rather than independent contractors, the Supreme Court has held that the term “employee” for purposes of determining authorship of works made for hire should be interpreted according to general common law agency principles. Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989). The Court identified certain factors that characterize an employer-employee relationship: control by the employer over the work, control by the employer over the employee, and the status of the employer. Id. at 738-39.

If the employer has a voice in how the work is done, has the work done at the employer’s location, and provides equipment and tools to the person to create the work, such tends to show an employer-employee relationship. Similarly, if the employer controls the worker’s schedule in creating the work, has the right to have the worker perform other assignments, and has the right to hire the worker’s assistants, such shows an employer-employee relationship. Finally, if the employer is in business to produce such works, provides the worker with benefits similar to those received by other workers, and withholds taxes from the worker’s compensation, such is supportive of an employer-employee relationship. Id.

These factors are not exhaustive, but all or most of these factors characterize a regular, salaried employment relationship. In the present case, Nelson created the work at his studio using his own tools and equipment and using his own long-term assistants. Moreover, Stonegate is in the real estate development business, not the art business, and Nelson

was not a regular salaried employee of Stonegate. Accordingly, Nelson should be held to be an independent contractor and thus entitled to moral rights under the Act.

A work not prepared by an employee but rather one prepared by an independent contractor can be deemed a work made for hire and thus owned by the commissioning party (in this case, Stonegate) if the parties agree in writing that it is to be a work made for hire and it is specially commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas. 17 U.S.C. § 101. Both statutory conditions (the specially ordered work must fall into one of the nine enumerated categories and the parties must agree in writing that it is a work made for hire) must exist. In this case, the works (sculptures and posters) do not fall into any of the nine specially enumerated categories of work, and thus the works are not ones made for hire. Therefore, Nelson has retained any moral rights in the works because they were not “made for hire.”

Destruction of Sculptures

The Act allows an author of a work of visual art to prevent any destruction of a work of “recognized stature.” 17 U.S.C. § 106A(3)(B). Thus, determining that the sculptures are of “recognized stature” is necessary in order to protect them from destruction. The phrase “recognized stature” is not defined in the Act, and thus, its interpretation has been left to the courts. In Carter v. Helmsley-Spear Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994), aff’d in part, rev’d in part, vacated in part, 71 F.3d 77 (2d Cir. 1995), the court formulated the following test: A work of visual art has “stature” if it is meritorious and is recognized by art experts, other members of the artistic community, or by some cross-section of society. In the present case, because of the critical acclaim afforded the works by art critics and

others, the sculptures are likely to be found to be of “recognized stature” such that Nelson can prevent their destruction.

Removal of Sculptures

In Phillips v. Pembroke Real Estate Inc., 288 F. Supp. 2d 89, 99-100 (D. Mass. 2003), aff’d on certification, No. SJC-09181 (Mass. Dec. 21, 2004), Phillips, the creator of 27 sculptures placed in a park, argued that his work was so site-specific that moving it to another location would be an intentional destruction or modification under VARA. He contended that taking his sculptures to another park would be like painting over the background landscape in the Mona Lisa. The court, however, agreed with the defendant’s assertion that moving the sculptures to another location was permissible, just as a museum curator could move the Mona Lisa from one wall in the Louvre to another.

The Act permits the modification of a work of visual art that is the result of conservation or of the public presentation and placement of a work, and specifically states that such is not a destruction. 17 U.S.C. § 106A(c)(2). This “public presentation” exception would permit Stonegate to move Nelson’s sculptures from one location to another. As one court noted, the focus of VARA “is not . . . to preserve a work of visual art where it is, but rather to preserve the work as it is.” Bd. of Managers of Soho Int’l Arts Condo. v. City of New York, No. 01-CIV-1226 DAB, 2003 WL 21403333, at *10 (S.D.N.Y. June 17, 2003). Accordingly, Nelson has no right to control the placement of the sculptures. Stonegate is not obligated to display the works in the park and may remove them to another location because VARA provides no protection for a change in placement or presentation.

Destruction of Posters

The U.S. Copyright Act specifically provides that a work of “visual art” does not include “any poster.” 17 U.S.C. § 101. Thus, Stonegate’s

destruction of the posters in the building lobby was permissible because posters are not works of “visual art” and accordingly are not protected under the Act.

CONCLUSION

Under VARA, Nelson can prevent the planned destruction of the sculptures he created for Stonegate but cannot prevent their removal to another park. Moreover, because posters are not works of “visual art” covered by VARA, Nelson cannot prevent their destruction.