Dumpster Diving Leads to VARA Suit

Art dealer or
VARA Scofflaw?

Here’s an interesting one, found at On Point News.

It isn’t very often that you see a VARA suit, but we have one going on in the Middle District of Florida. Artist Robert Rauschenberg is suing artist Robert Fontaine for selling works of art that bear certificates of authenticity attesting to the fact that Rauschenberg created them. Complaint.

But Fontaine’s attorney claims he found the proof sheets in a pile of junk outside Rauschenberg’s home on Captiva Island, Fla. “It appears Rauschenberg threw this stuff away,” Yale T. Freeman told USA Today.

Note the strange fact pattern here: Fontaine did not take Rauschenberg’s stuff from the trash and put his own name on it. Fontaine took Rauschenberg’s trash and then sold it as “a genuine Rauschenberg work.”

We don’t see many VARA suits because the Act is, for the most part, useless. VARA stands for “Visual Artists Rights Act,” and the act is codified at 17 U.S.C. § 106A. It only applies to paintings, drawings, prints, sculptures, and photos that are produced for exhibition, and even then, only if they are produced as a single work, or in limited runs of 200 or fewer copies — and those copies must be signed by the artist.

The statute affords the following rights to this very limited universe of works:

(a)Rights of Attribution and Integrity.— Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art—

(1) shall have the right—

    (A) to claim authorship of that work, and
    (B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation; and

(3) subject to the limitations set forth in section 113 (d), shall have the right—

    (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
    (B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

It sounds like Mr. Rauschenberg is seeking to enforce his rights under subsection (a)(1)(B). The question comes down to did he create the visual work that Mr. Fontaine sold?

Maybe… first the court will need to determine whether Rauschenberg actually created the proof sheets that Fontaine allegedly picked from his trash. That should be relatively simple. If they are forged or were drawn by someone else, Rauschenberg probably wins.

Don’t take art
from it either

However, I don’t think that the case is that simple. The court should then decide whether these proof sheets are “works” that Fontaine can truthfully attribute to Rauschenberg. Is a discarded “proof sheet” a “work of visual art?” I would imagine that if the Court reads the statute in an unsophisticated and mechanical way, Rauschenberg will lose (provided that Fontaine can prove that Rauschenberg created the proofs).

On the other hand, Rauschenberg’s could raise the claim that the proof sheets are not “works,” but merely byproducts of the creative process, thus Fontaine’s claim that these “works” are “genuine Rauschenbergs” would be false. Additionally, VARA allows the artist to prevent the use of his name on works created by others, including distorted versions of the author’s original work. See Phillips v. Pembroke Real Estate, 459 F.3d 128 (1st Cir. 2006). Therefore, even if these are “genuine,” they are likely “distorted versions,” since Rauschenberg certainly did not intend for them to be displayed the way that Fontaine displayed them.

If the court applies VARA properly, it will find that (at least for VARA purposes) a “work” is not a “work” until the creating artist says it is a “work.” Thus, you can not take something that an artist created during the creative process, and then discarded, and say it is an authentic work of that artist. Even then, if an artist discards a copy of a work that he finds to be dissatisfying, he has a negative right of attribution that the Court should recognize and support.

Given the complete dearth of cases interpreting VARA, I hope that this doesn’t get settled out of court.