AIPLA QUARTERLY JOURNAL

Volume 46, Number 3 Page 341 Summer 2018

NOTE

MY VERSUS YOUR PROPERTY: A PROPOSAL FOR VARA APPLICATION TO SITE- SPECIFIC ART

Lang Chen*

I. INTRODUCTION ...... 343 II. OVERVIEW OF SITE-SPECIFIC ART AND VARA ...... 345 A. WHAT IS SITE-SPECIFIC ART? ...... 345 B. WHAT IS VARA? ...... 347 1. The Enactment of VARA ...... 347 2. A Brief Introduction of Moral Rights Under VARA ...... 349 a. The Right of Attribution: “I created it, I want my name on it.”...... 350 b. The Right of Integrity: “I created it, I retain control over it.” ...... 350 3. The Scope of VARA ...... 351 4. Three Exceptions of VARA ...... 353 5. Duration, Fair Use, and Preemption ...... 354 C. POST-VARA CONTROVERSY ...... 355 III. SITE-SPECIFIC ART SHOULD NOT BE PER SE EXCLUDED FROM VARA PROTECTION BECAUSE IT IS INCONSISTENT WITH THE CONGRESSIONAL INTENTION AND WILL LEAD TO A SWEEPING EFFECT ...... 357 A. JUDICIAL INCONSISTENCY OF WHETHER VARA COVERS SITE- SPECIFIC ART ...... 357 B. THE UTILITARIANISM VIEW OF COPYRIGHT LAW AND THE PREFERENCE OF PROPERTY RIGHT LEADS TO COURTS’ RELUCTANCE TO EXPAND MORAL RIGHTS ...... 362

* © 2018 Lang Chen, J.D. candidate, George Washington University Law School, 2019; B.A. Cultural Industry Management, Tongji University, 2016. She would like to thank the Publication Board and Staff of the AIPLA Quarterly Journal for their hard work, Professors Robert B. Cassady and Lauren Dreyer for their insightful feedback and her loving parents and lovely friends for their invaluable encouragement and support. 342 AIPLA Q.J. Vol. 46:3

C. THE FIRST CIRCUIT’S PER SE EXCLUSION OF SITE-SPECIFIC ART FROM VARA IS QUESTIONABLE, AND SITE-SPECIFIC ART SHOULD RECEIVE MORAL RIGHTS PROTECTION ...... 364 IV. A VARA AMENDMENT PROPOSAL: EXTEND PROTECTION OVER SITE- SPECIFIC ART BY APPLYING A MULTIFACTOR BALANCING TEST ...... 369 A. OTHER PROPOSED AMENDMENT ...... 369 B. COURTS SHOULD ADOPT A MULTIFACTOR BALANCING TEST TO DECIDE WHETHER A SITE-SPECIFIC WORK SHOULD BE PROTECTED ...... 372 1. Removability of the Artwork ...... 373 2. Burden of the Property Owner ...... 375 3. Conduct and Attitude of the Parties ...... 375 4. ’ Intention ...... 376 5. Public Voice ...... 377 C. PROS AND CONS OF THE PROPOSED AMENDMENT ...... 378 V. CONCLUSION ...... 379

LIST OF FIGURES 1. Figure 1. 1 ...... 344 2. Figure 2. Fearless Girl 2 ...... 344 3. Figure 3. Sun Tunnels ...... 346 4. Figure 4. Sun Tunnels ...... 347 5. Figure 5. Distasteful Artwork in Long Island ...... 361 6. Figure 6. Building Graffiti in Cohen ...... 362 7. Figure 7. 1 ...... 366 8. Figure 8. The Gates 2 ...... 366 9. Figure 9. Surrounded Islands 1 ...... 368 10. Figure 10. Surrounded Islands 2 ...... 368

2018 My Art Versus Your Property 343

I. INTRODUCTION

On March 8, 2017, the International Women’s Day, a of a school- aged girl standing fearlessly (Figure 1 and Figure 2) was installed directly in front of the massive icon, the “.”1 Arturo Di Modica, the who created the “Charging Bull,” strongly protested the installation of the “Fearless Girl.”2 He believes that this statue of a little girl altered his site-specific work from a representation of “freedom in the world, peace, strength, power and love” into an anti-feminist symbol.3 Di Modica may invoke the Visual Artists Rights Act of 1990 (VARA), which protects visual artwork from certain distortion that “would be prejudicial to his or her honor or reputation.”4 However, given the previous judicial decisions concerning VARA, artists rarely win.5 Nevertheless, this “artworks confrontation” raises an interesting question regarding VARA and its application to site-specific art. In a 2006 decision, the First Circuit excluded all site-specific art from VARA protection.6 This Note questions the First Circuit’s categorical exclusion approach and proposes a multifactor balancing test for the

1 See Nicole Martinez, Is “Fearless Girl” a Derivative Work? “Charging Bull” Thinks So, ART LAW JOURNAL (May 10, 2017), https://artlawjournal.com/fearless-girl-derivative-work [https://perma.cc/BW7B-78SG]. 2 See James Barron, Wounded by ‘Fearless Girl,’ Creator of ‘Charging Bull’ Wants Her to Move, N.Y. TIMES (Apr. 12, 2017), https://www.nytimes.com/2017/04/12/nyregion/charging-bull-sculpture- wall-street-fearless-girl.html [https://perma.cc/G7V8-ELU3] (“Mr. Di Modica said that ‘Fearless Girl’ was an insult to his work.”). 3 Id. (noting that the controversy around the fearless girl statue has turned into an argument over “gender diversity” and women in men’s spaces). 4 17 U.S.C. § 106A(a)(1) (2012). 5 See, e.g., Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 143 (1st Cir. 2006) (holding that VARA does not protect site-specific art, and therefore, an artist of site-specific art cannot win on a VARA claim). But see Cohen v. G & M Realty L.P. (Cohen II), 320 F.Supp.3d 421, 428–29 (E.D.N.Y. 2018) (finding the property owner violated VARA when he whitewashed the graffiti artworks without notice, willfully destroying the art). 6 Phillips, 459 F.3d at 143. The First Circuit found VARA does not apply to site- specific art at all. But see Kelley v. Chi. Park Dist., 635 F.3d 290, 307 (7th Cir. 2011) (finding the First Circuit’s categorical exclusion of site-specific art from VARA protection is unwarranted). 344 AIPLA Q.J. Vol. 46:3 courts to determine whether a piece of site-specific artwork deserves VARA protection.

Figure 1. Fearless Girl 17

Figure 2. Fearless Girl 28

Part II of this Note provides background information of site-specific art by detailing VARA’s enactment, provisions, scope, and controversy. Part III analyzes the current judicial decisions regarding site-specific artwork under VARA, the underlying tension between moral rights and property rights, and further discusses why site-specific art deserves moral rights protection. Part IV proposes a multifactor balancing test for courts to identify qualified site-specific artwork

7 Suzanne Vranica, ‘Fearless Girl’ Steals the Conversation, WALL ST. J. (June 19, 2017, 5:30 AM), https://www.wsj.com/articles/fearless-girl-steals-the- conversation-1497864600 [https://perma.cc/9ETP-HA6W]. 8 Sarah Cascone, A Bunch of Bull? Wall Street Firm Behind ‘Fearless Girl’ Settles Gender Discrimination Suit, ARTNET NEWS (Oct. 10, 2017), https://news.artnet.com/art-world/fearless-girl-settles-gender- discrimination-suit-1110587 [https://perma.cc/F9XD-ZK98]. 2018 My Art Versus Your Property 345 that should receive VARA protection and examines the pros and cons of this modest proposal.

II. OVERVIEW OF SITE-SPECIFIC ART AND VARA

A. WHAT IS SITE-SPECIFIC ART?

Site-specific art is a unique art form where the artist takes the location of the artwork into consideration during the process of artistic expression.9 In Phillips v. Pembroke Real Estate, Inc., the plaintiff’s expert defined site-specific art as an art form that “derives enhanced meaning from its environment” and “integrates its context with the work to form, ideally, a seamless whole.”10 The Fearless Girl, for example, is site-specific art because the artist intended the surrounding environment (i.e., the Charging Bull statute) as part of the artistic expression. Without the Charging Bull in front of her, the “Fearless Girl” could have represented something different altogether. Moreover, Daniel Ranalli, an professor at Boston University explained, “[S]culpture has come off [of] its pedestal, functioning in the space in and around its site, and playing an integral role in defining that space.”11 Both explanations describe site-specific art’s close relationship with its environmental context.12 On the other hand, Scholar Miwon noted that “site-specificity” is not clearly defined and lacks “historical and theoretical grounds.”13 From its inception, art commentators viewed site-specific art as a “rejection of the institutions of art and galleries by taking the art out of the gallery.”14 Yet, when artists step out of the

9 See MIWON KWON, ONE PLACE AFTER ANOTHER: SITE-SPECIFIC ART AND LOCATIONAL IDENTITY 1 (2002) (explaining that site-specific practices incorporate “the physical conditions of a particular location as integral to the production, presentation, and reception of art”). 10 459 F.3d at 134. 11 Id. 12 See id. (quoting Francesca Garson, Note, Before that Artist Came Along, It Was Just a Bridge: The Visual Artists Rights Act and the Removal of Site-Specific Artwork, 11 CORNELL J.L. & PUB. POL’Y 203, 211 (2001)) (“It is clear that the community of respected American artists and art authorities regard the crafted work at the site of site-specific artworks as an indivisible whole.”).

13 KWON, supra note 9, at 2 (“[C]ontemporary art discourse still lacks a substantive account of the historical and theoretical ‘grounds’ of site specificity.”).

14 See Seher Naveed, But is it Site Specific Art?, ART NOW PAK., http://www.artnowpakistan.com/but-is-it-site-specific-art/ 346 AIPLA Q.J. Vol. 46:3 gallery and choose nature as a platform (Figures 3 & 4), they may face challenges from the property owner regarding the future removal of the artwork.15

Figure 3. Sun Tunnels Nancy Holt16

[https://perma.cc/A5H9-F3KK?type=image] (last visited Aug. 28, 2018); see also The Art Story Contributors, Earth Overview and Analysis, THE ART STORY (last accessed Oct. 6, 2018), https://www.theartstory.org/movement-earth-art.htm [https://perma.cc/HC3R-DTPN] (last visited Oct. 7, 2018) (“By creating their works outside of these institutions, Earth artists rebuffed the commodity status these venues conferred on art, again challenging traditional definitions of art as something to be bought and sold for profit.”). 15 See discussion infra Part III.B.

16 Sun Tunnels Nancy Holt, MEDIUM: EXPOSITION ART BLOG (June 20, 2017), https://medium.com/@milenaolesinska77/sun-tunnels-nancy-holt- 4c90655b1ca4 [https://perma.cc/6UNZ-PBUQ]. 2018 My Art Versus Your Property 347

Figure 4. Sun Tunnels 17

B. WHAT IS VARA?

The Visual Artists Rights Act of 1990 (VARA) is a U.S. federal legislation to establish moral rights protection to artworks.18 it was enacted as a response to the Berne Convention and showed a recognition of artists’ rights of attribution and integrity. Due to the numerous limitations imposed by VARA, the efficacy of VARA remains controversial.19

1. The Enactment of VARA

In 1988, the ratified the Berne Convention to enjoy a larger scope of international intellectual property protection.20 Article 6bis of the Berne Convention requires member countries to protect artists’ rights of attribution and integrity (i.e., moral rights). 21 The U.S. initially tried to seek adherence under

17 Sun Tunnels, WIKIART (Feb. 5, 2014), https://www.wikiart.org/en/nancy- holt/sun-tunnels-1976 [https://perma.cc/C29N-8DPG]. 18 See Visual Artists Rights Act of 1990, Pub. L. No. 101-650, 104 Stat. 5128, 5128–33 (codified in numerous sections of 17 U.S.C.). 19 See infra Section II.C. 20 See Virginia M. Cascio, Hardly a Walk in the Park: Courts’ Hostile Treatment of Site-Specific Works under VARA, 20 DEPAUL J. ART TECH. & INTELL. PROP. L. 167, 171 (2009) (explaining that “the United States finally ratified the Berne Convention in order to gain more protection for American intellectual property”). 21 See Berne Convention for the Protection of Literary and Artistic Works, art. 6, Sept. 9, 1886, 102 Stat. 2853, 331 U.N.T.S. 217 (“[T]he author shall have the right . . . to claim authorship of the work and to object to any distortion, 348 AIPLA Q.J. Vol. 46:3 existing laws that are sufficient to meet the Article 6bis requirements. 22 For example, the Second Circuit, in Gilliam v. American Broadcasting Companies, Inc., recognized the right of integrity over their TV series under the Lanham Act.23 Even so, the Lanham Act does not grant the right of attribution and, therefore, failed to bring the United States into compliance with Article 6bis.24 In this case, the only way to adhere to the Berne Convention was to enact specific moral rights legislation.25 On June 1, 1991, VARA was enacted as an amendment to the 1976 Copyright Act.26 VARA recognized the rights of attribution and integrity for visual artwork under limited circumstances, aiming to protect artists’ reputations.27 To

mutilation or other alteration thereof . . . to the said work which would be prejudicial to his honour or reputation.”).

22 See H.R. REP. NO. 101-514 at 7−8 (1990) (stating Congress’ preference for the viewpoint that existing state and federal laws adequately complied with the Berne Convention on its moral rights requirements). 23 Compare 15 U.S.C. § 1125 (2012) (explaining that liability attaches to a person who uses another’s copyrighted material in such a way that it misrepresents their work or would be likely to cause confusion, mistake, or deception), and Gilliam v. Am. Broad. Cos., 538 F.2d 14, 24−25 (2d Cir. 1976) (finding a heavily edited broadcast by American Broadcasting Company impaired the integrity of the work while recognizing the right of integrity of the original work, creating a cause of action under the Lanham Act), with Berne Convention for the Protection of Literary and Artistic Works, supra note 21, at 227 (“[T]he author shall have the right . . . to claim authorship of the work and to object to any distortion, mutilation or other alteration thereof . . . to the said work which would be prejudicial to his honour or reputation.”). 24 See Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 23 (2003) (holding that “the Lanham Act does not prevent the unaccredited copying of an uncopyrighted work”).

25 See H.R. REP. NO. 101-514, at 10 (explaining how VARA, as introduced in the House of Representatives, brings the U.S. more in line with the Berne Convention). 26 See Visual Artists Rights Act of 1990, Pub. L. No. 101-650, 104 Stat. 5128, 5128–33 (codified in numerous sections of 17 U.S.C.); see also Cascio, supra note 20, at 172, 175 (explaining that VARA modified the existing Copyright Act and noting VARA’s effective date).

27 See H.R. REP. NO. 101-514, at 6 (discussing testimony supporting VARA due to its incorporation of these rights). 2018 My Art Versus Your Property 349 strike a balance between the treaty compliance and national law, Congress limited the scope of the protection over artists’ moral rights by creating exceptions and excluding various categories of artwork from the protection.28

2. A Brief Introduction of Moral Rights Under VARA

The concept of moral rights is not novel; early in the 19th century, moral right doctrine originated in France, which recognized certain rights that “protect the creative efforts of artists.”29 The term “moral right” stems from the French phrase “droit moral.”30 Some say the German term “urheberpersönlichkeitsrecht,” which means “authorial rights of personality,” better describes the meaning of “moral right.”31 Moral rights reflect the high value European cultures place on art and convey “an element of ethics or societal interest” by realizing the potential vulnerability of the artist.32 A broader understanding of moral rights encompasses five distinct rights: “rights of attribution, integrity, disclosure, withdrawal, and resale royalties.” 33 Among the 118 countries that have signed the Berne Convention, most of the countries recognized some sort of attribution and integrity rights like the U.S.34 Fewer nations granted the other three rights.35 As a subsection of the 1976 Copyright Act, VARA recognizes the rights of integrity and attribution for artists in addition to the six exclusive rights granted to the general

28 See id. at 11, 22 (stating that VARA’s definition of “work of visual art” is narrower than the definition contained in the Copyright Act and that the fair use exception will apply to the newly granted rights).

29 Susan P. Liemer, Understanding Artists’ Moral Rights: A Primer, 7 B.U. PUB. INT. L.J. 41, 41−42 (1998) (stating the origin of the concepts of moral rights). 30 Sonya G. Bonneau, Honor and Destruction: The Conflicted Object in Moral Rights Law, 87 ST. JOHN’S L. REV. 47, 49 n.6 (2013) (citing Stephen R. Munzer & Kal Raustiala, The Uneasy Case for Intellectual Property Rights in Traditional Knowledge, 27 CARDOZO & ENT. L.J. 37, 68 (2009)).

31 Bonneau, supra note 30, at 49 n.6 (citing Munzer & Raustiala, supra note 30, at 68) (arguing that the German term is more accurate than the French one). 32 Liemer, supra note 29, at 42. 33 Id. at 45−46. 34 See id. at 46. 35 See id. (discussing that fewer nations grant the rights of disclosure, withdrawal, and resale royalties). 350 AIPLA Q.J. Vol. 46:3 copyright owners.36 The Sections below will discuss the rights of integrity and attribution.

a. The Right of Attribution: “I created it, I want my name on it.”37

The right of attribution gives the author of “a work of visual art” the right to claim authorship and to prevent one’s name from being attached to a work he or she did not in fact create.38 Non-attribution could nullify the artist’s long-term effort, and misattribution of artwork may bring the artist unwanted exposure and controversy. 39 Artists usually view their works as “stepping stones” for their career, and non-attribution or misattribution harms the artists’ personal, artistic, and professional development. 40 In that sense, the recognition of the right of attribution ensures artists obtain the credit they deserve and motivates them to pursue their artistic goal.41

b. The Right of Integrity: “I created it, I retain control over it.”

The right of integrity protects the integrity of artwork by preventing “distortion or mutilation or other modification” as well as the “modification” of the work without the author’s permission. 42 Recognizing an artist’s right of

36 17 U.S.C. § 106 (2012). 37 Liemer, supra note 29, at 48. 38 See Richard J. Hawkins, Note, Substantially Modifying the Visual Artists Rights Act: A Copyright Proposal for Interpreting the Act’s Prejudicial Modification Clause, 55 UCLA L. REV. 1437, 1441−42 (2008) (explaining how the right of attribution can appropriately protect an artist’s name, including by protecting against misattribution and non-attribution). 39 See Liemer, supra note 29, at 48−49 (discussing the potential consequences of non-attribution and misattribution, including the possibility of an artist “being associated with work she did not create”). 40 Id. at 48 (explaining this “stepping stone” relationship to an artist’s work as developing their creative process). 41 See id. (stating that proper attribution is an important piece of the artists’ motivation to create artwork). 42 Id. at 50 (“This right prevents anyone from modifying the art without the artist’s permission.”). 2018 My Art Versus Your Property 351 integrity shows respect to the artist’s creative process and encourages creativity.43 Traditionally, the right of integrity only prohibited the unpermitted modification of artwork but not the destruction of such work.44 This led to an absurd result since those who modified the work were subject to liability while those who destroyed the work were off the hook.45 The right of integrity gives an artist the final say over the version of her work and, therefore, prevents the artist’s name from being attached to a defective version of the work.46 For the right of integrity, VARA differentiates between the “intentional distortion, mutilation, or other modification of that work” and the “destruction of a work.”47 To succeed under VARA for the destruction of an artwork, the plaintiff needs to prove both (1) the destruction was “intentional or grossly negligent” and (2) the work was a “recognized stature.”48

3. The Scope of VARA

Under VARA, the rights of attribution and integrity are only available to a narrowly defined class of artwork and subject to various exceptions.49 First of all, the work must be a “work of visual art,” which only includes , , print, , and still photographic image for exhibition purpose. 50 For example, have been held “work[s] of visual art” as within the subset of

43 See id. at 50−51 (arguing that recognition of the right to integrity encourages the artist to create more works). 44 See Liemer, supra note 29, at 51 (citing Cour d’appel [CA] [regional court of appeal] Paris, Apr. 27, 1934, D.P.II, 385 (commonly known as LaCasse et Welcome v.. Abbe Quenard); Crimi v. Rutgers Presbyterian Church, 89 N.Y.S.2d 813 (N.Y. Sup. Ct. 1949)) (“Traditionally, the right of integrity does not protect the art work from total destruction by another.”). 45 See id. at 51 (explaining the irony of the protection of the right of integrity). 46 See id. (stating that the right of integrity “avoids value judgements as to the quality of the art and the seriousness of the artist’s undertaking”). 47 17 U.S.C. § 106A(a)(3) (2012). 48 17 U.S.C. § 106A(a)(3)(B). However, the statute does not include a definition of “recognized stature,” leaving the standard of “recognized stature” unclear and largely dependent on judicial decisions. Id. 49 See 17 U.S.C § 101 (2012) (defining the category of copyrightable works that are considered “a work of visual art,” which is the class of work granted rights under VARA). 50 17 U.S.C. §§ 101, 106A(c)(3). 352 AIPLA Q.J. Vol. 46:3 .51 The statute further requires the artwork to be “in a limited edition of 200 copies or fewer” and “signed and consecutively numbered by the author.”52 The limited copies requirement aims to protect artwork that is unique and scarce, thus most in need of moral rights protection.53 Moreover, VARA specifically excludes works for hire, motion pictures and other audiovisual works, and works of applied art.54 Under these exclusions, an artist’s hand-painted banner for a political campaign was not “a work of visual art” because it was created for the purpose of lobbying and some of the content was pre-determined.55 Judicial decisions also further defined the scope of VARA. For instance, the First Circuit found that VARA applies to “unfinished work” and excluded “site-specific art” from VARA protection. 56 Further, by statute, only “destruction, distortion, mutilation, or other modification” to the artwork is

51 See Hunter v. Squirrel Hill Assocs., 413 F. Supp. 2d 517, 519 (E.D. Pa. 2005) (finding that Congress intended to include murals under works covered by VARA as it is a type of painting and therefore is a visual art). 52 17 U.S.C § 101. 53 See Jane C. Ginsburg, Copyright in the 101st Congress: Commentary on the Visual Artists Rights Act and the Architectural Works Copyright Protection Act of 1990, 14 COLUM.-VLA J.L. & ARTS 477, 479 (1990) (explaining that VARA protects the unique importance of subject matters such as paintings and sculpture); Stephen W. Snively, Artists’ Rights Meet Property Rights: An Invisible Restraint, 9 PROB. & PROP. 18, 20 (1995) (explaining the rationales additional protections for limited copies of due to their uniqueness). 54 See 17 U.S.C § 106A(a)(2012) (applying the rights granted in VARA only to works of visual art); 17 U.S.C. § 101 (“A work of visual art does not include any . . . applied art . . . motion picture or other audiovisual work . . . work made for hire.”). 55 See Pollara v. Seymour, 344 F.3d 265, 270 (2d Cir. 2003) (explaining that the banner was not within the scope of VARA due to it being a promotion and advertisement and because the content of the banner was not determined by the artist). 56 See Mass. Museum of Contemporary Art Found., Inc. v. Büchel, 593 F.3d 38, 42 (1st Cir. 2010) (concluding VARA applies to unfinished artistic works); see also Phillips, 459 F.3d at 143 (“VARA does not apply to site-specific art at all.”). 2018 My Art Versus Your Property 353 actionable under VARA, meaning that the uses, reproduction, or depiction of an artwork is permitted.57

4. Three Exceptions of VARA

In addition to the narrow definition of “work of visual art,” VARA further created three exceptions under the right of integrity.58 First, when the “work of visual art” is modified as “a result of the passage of time or the inherent nature of the materials”, it does not fall within the definition of “distortion, mutilation, or other modification” and, therefore, is not subject to the protection of VARA.59 For example, an artwork utilizing living plants as materials may change over time when the plants grow or wither. Since such modification is due to the inherent nature (i.e., the growing plant) of this work, it will not receive VARA protection.60 The second exception concerns the public display of artwork. 61 When a modification of an artwork “is the result of conservation” or “public presentation,” such modification does not qualify as a “destruction, distortion, mutilation, or other modification” under VARA unless it “is caused by gross negligence.”62 For example, when the artwork is modified by the change of “lighting and placement” as a result of a public presentation, it is not actionable under VARA.63

57 17 U.S.C. § 106A(c)(3). 58 17 U.S.C. § 106A (describing the exceptions regarding the passage of time and the public display or artwork); 17 U.S.C § 113(d) (2012) (explaining the third exception regarding art incorporated into a building). 59 17 U.S.C. §§ 106A(c)(1), 113(d). See also Anna Belle Wilder Norton, Comment, Site-Specific Art Gets a Bum Wrap: Illustrating the Limitations of the Visual Artists Rights Act of 1990 Through a Study of Christo and Jeanne-Claude’s Unique Art, 39 CUMB. L. REV. 749, 767 (2009) (noting the passage of time exception to undue modification under VARA). 60 The Seventh Circuit touched on the applicability of VARA over a living garden and whether such garden should be viewed as “painting” and “sculpture.” But the Court did not reach a conclusion regarding VARA application and denied the artist contentions because the living garden filed the fixation requirement of copyright. See Kelley v. Chi. Park Dist., 635 F.3d 290, 301–302 (7th Cir. 2011). 61 17 U.S.C. § 106A(c)(2) (excluding modification as a result of public presentation from VARA protection). 62 Id. 63 Id. 354 AIPLA Q.J. Vol. 46:3

Finally, the third exception is known as “the building exception.” 64 It addresses a “work of visual art” when it is “incorporated in or made part of a building,” and the removal of such work will cause a “destruction, distortion, mutilation or other modification” of the piece. 65 In which case, the rights of attribution and integrity do not apply if the property owner acquired the author’s consent before the effective date of VARA (i.e., June 1, 1990).66 Similarly, VARA does not apply when a signed written agreement exists between the building owner and the author specifying the future removal.67 On the other hand, if a removal will not result in a “destruction, distortion, mutilation, or other modification” of the artwork, the author retains the rights of attribution and integrity unless the owner makes a diligent and good faith attempt to notify the author of the future removal.68

5. Duration, Fair Use, and Preemption

If an artist creates an artwork after the enactment of VARA, the moral rights will last for the author’s lifetime.69 For joint authorship, such rights will last for “the life of the last surviving author.”70 VARA rights are non-transferable until the author’s death; however, the right may be waived by a signed written agreement.71 Moreover, VARA rights are subject to the fair use exceptions, which means an unauthorized modification of artwork would not violate VARA “if it

64 17 U.S.C § 113(d) (describing the exception to the rights conferred by 17 U.S.C. § 106A when a work is incorporated into a building). 65 17 U.S.C § 113. 66 See 17 U.S.C § 113(d)(1) (explaining that under this circumstance “the rights conferred by paragraphs (2) and (3) of section 106A(a) [rights conferred by VARA] shall not apply”). 67 See id. (explaining further that no rights shall be conferred if the building owner and artist executed a written agreement “that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal”). 68 17 U.S.C § 113(d)(2). 69 See 17 U.S.C. § 106A(d)(1) (2012) (“The rights conferred by [VARA] shall endure for a term consisting of the life of the author.”). 70 17 U.S.C. § 106A(d)(3).

71 H.R. REP. No. 101-514 at 2−3; see also 17 U.S.C. § 106A(e)(1). 2018 My Art Versus Your Property 355 were for the purpose of criticism, comment, news reporting, teaching, research, and parody.”72 Regarding federal preemption, VARA preempts “all legal or equitable rights that are equivalent to any of the rights conferred by section 106A,” and the preemption does not apply to any postmortem moral rights.73 This raises questions about what state rights are “equivalent” to the VARA rights and whether the federal preemption applies only to the limited “work of visual art” defined under VARA.74 If VARA allows states to extend the scope of protection, then it creates a choice for states to balance their economic and non-economic interest. 75 For example, the State of New York has recognized broader moral rights for artwork than to VARA in enacting New York’s 1984 Artists Authorship Rights Act.76

C. POST-VARA CONTROVERSY

After the adoption of VARA, a variety of perspectives emerged on the efficacy of the Act. Some scholars viewed VARA as a compromised act that failed to fully extend the moral rights to the international standard.77 Berne Convention

72 Hawkins, supra note 38, at 1466 (quoting 17 U.S.C. § 107 (2012)). 73 Cambra E. Stern, Comment, A Matter of Life or Death: The Visual Artists Rights Act and the Problem of Postmortem Moral Rights, 51 UCLA L. REV. 849, 864 (2004); see also 17 U.S.C § 301(f) (2012) (elucidating the preemptive impact of VARA, including in relation to rights after the death of the artist). 74 See Stern, supra note 73, at 864 (raising both the equivalency issue and the scope of works covered issue). 75 See Brett Sirota, Note, The Visual Artists Rights Act: Federal Versus State Moral Rights, 21 HOFSTRA L. REV. 461, 475 n. 76 (1992) (“By giving limited economic rights to authors, flourish and all of society benefits . . . . The New York Legislature apparently felt that by giving limited moral rights to authors, the arts continue to flourish and all of society benefits.”). State interest may include the interest of copyright holder, artists, property owner and general public.

76 See id. at 473 (citing ARTS & CULT. AFF. § 14.03) (“[T]he act protects works of of a limited edition of not more than 300 copies, as opposed to 200 for VARA.”); see generally, N.Y. ARTS & CULT. AFF. LAW § 14.03 (LexisNexis 2018) (expanding the rights of artists over their art, including in regards to “alternation, defacement, mutilation, or modification” of their works by others). 77 See David E. Shipley, The Empty Promise of VARA: The Restrictive Application of a Narrow Statute, 83 MISS. L.J. 985, 988 (2014) (explaining that VARA was 356 AIPLA Q.J. Vol. 46:3

Article 6bis granted authors the rights of attribution and integrity without limiting the form of work.78 In contrast, VARA only applies to a limited list of works, and the courts tend to further restrict artists’ non-economic rights.79 Other criticism focuses on the vagueness of the terms like “prejudicial,” “honor and reputation,” and “recognized stature” that lack definitions in the statute.80 In practice, courts widely accept the test from Carter v. Helmsley-Spear, Inc. to determine whether an artwork qualifies as “recognized stature” and apply a case-by-case analysis.81 To qualify as “recognized stature,” the visual art needs to be “viewed as meritorious,” and “recognized by art experts, other members of the artistic community, or by some cross-section of society.” 82 Furthermore, the court in Carter defined “prejudice” as “injury or damage due to some judgment of another”; “honor” as the artist’s “good name or public esteem;” and “reputation” as “the condition of being regarded as worthy or meritorious.”83 Such interpretation lacks applicability and fails to identify whether a subjective or objective standard shall apply. 84

narrowly drafted to only protect certain works and, based on its interpretation over time, no longer fulfills the obligations of Article 6bis). 78 See Berne Convention for the Protection of Literary and Artistic Works, supra note 21. 79 See, e.g., Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 142 (1st Cir. 2006) (finding that if protected by VARA, site-specific art could dramatically affect real property interests and laws). 80 See, e.g., Rebecca Stuart, Comment, A Work of Heart: A Proposal for a Revision of the Visual Artists Rights Act of 1990 to Bring the United States Closer to International Standards, 47 SANTA CLARA L. REV. 645, 671 (2007) (explaining the “confusion” that can occur when U.S. courts apply different meanings to the unclear terms of VARA). 81 861 F. Supp. 303, 324−25 (S.D.N.Y. 1994), aff’d in part, rev’d in part, vacated, 71 F.3d 77 (2d Cir. 1995) (explaining the case-by-case analysis used to determine if a piece of art meets the requirements to be of recognized stature); see Martin v. City of Indianapolis, 192 F.3d 608, 612−13 (7th Cir. 1999) (agreeing with the District Court’s use of the Carter test to determine whether art had recognized stature for the purposes of a VARA claim). 82 Martin, 192 F.3d at 612; see also Carter, 861 F. Supp. at 324−25 (explaining that the artwork need not be “equal in stature to that created by artists such as Picasso, Chagall, or Giacometti” to satisfy the recognized stature requirement of VARA).

83 Carter, 861 F. Supp. at 323 (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (unabr. 1971)). 84 See Hawkins, supra note 38, at 1449 (“The plain meanings ascribed by the 2018 My Art Versus Your Property 357

Without a clear guideline, courts are likely to reach different conclusions and inconsistent interpretations, making compliance with the rule difficult for artists or the artwork owners.

III. SITE-SPECIFIC ART SHOULD NOT BE PER SE EXCLUDED FROM VARA PROTECTION BECAUSE IT IS INCONSISTENT WITH THE CONGRESSIONAL INTENTION AND WILL LEAD TO A SWEEPING EFFECT

The First Circuits and the Seventh Circuit held different opinions on whether VARA should protect site-specific art at all. Later, the scope of VARA was further challenged by a 2018 E.D.N.Y. decision. The judicial inconsistency can be explained by an everlasting tension between economic rights and non-economic rights, and the utilitarianism view of U.S. copyright law leads to courts’ reluctance of expanding moral rights. Nevertheless, the First Circuit’s exclusion of all site- specific art from VARA protection is questionable, and site-specific art should receive moral rights projection given its artistic and societal value.

A. JUDICIAL INCONSISTENCY OF WHETHER VARA COVERS SITE- SPECIFIC ART

In the 2006 decision of Phillips v. Pembroke Real Estate, Inc., the First Circuit rejected an artist’s claim to prevent the removal and relocation of his sculpture specifically created for the park.85 In 1999, David Phillips contracted Pembroke and created 27 specifically for the Eastport Park.86 Two years later, the park decided to remove Phillips’ work.87 Phillips sued Pembroke, alleging the removal and relocation of the sculptures constitutes mutilation and modification of his work and thus violated VARA.88 Phillips argued that his work is site-specific and that all of the pieces “are meaningful only if they remain in Eastport Park, the

Carter court . . . would prove difficult to apply by other courts because these proffered definitions do not explain whether prejudice is a subjective . . . or an objective injury.”). 85 459 F.3d 128, 129 (1st Cir. 2006) (describing the disposition of the case and the fact that the court rejected the artist’s attempt to stop removal of his sculptures). 86 Id. at 130. 87 Id. at 131 (noting the 2001 plan to redesign the park “called for the removal and relocation of Phillips’ sculptures”). 88 Id. at 129; see also 17 U.S.C. § 106A(a)(3)(A) (2012) (explaining that authors have the right to prevent any intentional mutilation or other modification to their work). 358 AIPLA Q.J. Vol. 46:3 location for which they were created.”89 As a result, the removal and relocation of his work, he argued, would “impermissibly alter” the artwork.90 The district court found that most of Phillips’ sculptures constituted “one integrated ‘work of visual art’” and that VARA recognized integrated art. 91 Nonetheless, the property owner was entitled to remove the sculptures under the “public presentation exception.”92 The district court noted the pre-VARA Second Circuit decision Serra v. United States Gen. Serv. Admin., where the artist tried to avoid the removal of his site-specific art “.”93 Since the public building exception was drafted after this “widely-publicized dispute,” the district court in Philips inferred that Congress was well aware of site-specific art and thus intended not to give special protection to this kind of artwork.94 On the appeal, however, the First Circuit rejected the district court’s reasoning.95 The First Circuit recognized that granting an art piece VARA protection will “dramatically affect real property interests and laws” when ”such objects could not be altered by the property owner absent consent of the artist,” and therefore denied VARA protection to all site-specific art.96 The First Circuit’s per se exclusion of site-specific

89 Phillips, 459 F.3d at 135. 90 Id. (“Phillips also argued that VARA protected each of these works from any change in location because such a change would impermissibly alter them.”). 91 Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89, 98 (D. Mass. 2003), certified question answered, 443 Mass. 110 (Mass. 2004), and aff’d, 459 F.3d 128 (1st Cir. 2006) (explaining that VARA covers art made of several different pierces as the sculptures did in this case). 92 Id. at 100 (concluding that artists have “no right to the placement or public presentation of [their work] under the exception”).

93 Phillips, 459 F.3d at 138 (quoting Phillips, 288 F. Supp. 2d at 100) (citing H.R. REP. No. 101-514 at 12); see also Serra v. U.S. Gen. Servs. Admin., 847 F.2d 1045, 1047 (2d Cir. 1988) (describing the dispute between Serra and the GSA regarding the relocation of his artwork). 94 See Phillips, 288 F. Supp. 2d at 100 (citing Serra, 847 F.2d at 1045) (discussing the creation of the “public presentation exception” after the Serra case dealing with site-specific art); see also Serra, 847 F.2d at 1051−52 (finding the removal of an integrated, site-specific, government-owned work of art from federal property did not violate the free expression and due process rights of the artist). 95 See Phillips, 459 F.3d at 143 (“VARA’s plain language also requires us to reject the district court’s approach to site-specific art.”). 96 Id. at 142−43. 2018 My Art Versus Your Property 359 art was adopted and applied in other district court decisions.97 For example, in the 2015 decision of Kammeyer v. Oneida Total Integrated Enterprises, a California district court quoted the First Circuit, recognizing that the moral rights of a site-specific work could “dramatically affect real property interests and laws.”98 In the 2011 decision in Kelley v. Park District, the Seventh Circuit questioned the First Circuit’s interpretation of VARA in Philips.99 Kelley involved a wide flower garden that the author identified as a site-specific art.100 The artist’s claim ultimately failed because the work failed the Copyright Act’s fixation requirement before the court evaluated VARA. 101 The Seventh Circuit briefly discussed the tension between the public-presentation exception and the purpose of VARA.102 The Court found that the public-presentation exception merely served as a “safe harbor” for “ordinary changes” in artworks on public display, and such exception does not suggest a categorical exclusion of site-specific art from the VARA protection.103 Therefore, the Seventh Circuit observed, in dicta, that the First Circuit’s “all-or-nothing approach” to site-specific art “may be unwarranted.”104

97 See, e.g., Kammeyer v. Oneida Total Integrated Enters., No. EDCV 15-869- JGB (KKx), 2015 WL 5031959, at *5 (C.D. Cal. Aug. 24, 2015) (adopting the view created by the First Circuit to deal with the perceived “lifelong-veto” problem which would result from VARA protecting site-specific art). 98 Id. (quoting Phillips, 459 F.3d at 142). 99 Kelley, 635 F.3d at 306 (concluding that the categorical exclusion of site- specific art from VARA was “open to question”). 100 Id. at 291, 306. 101 Id. at 304−05 (explaining that the garden was too vulnerable to change to be considered fixed for the purposes of copyright protection). The artist’s claim failed the “fixation” requirement, which made this case an unpopular decision since it cast shadow on the future copyright protection over many forms of contemporary art (e.g., sculptures using natural media, living materials, or some performance art). 102 Id. at 306−07 (disagreeing with the First Circuit’s view of the tension between these two concepts). 103 Id. at 306 (“Noting in the definition of a ‘work of visual art’ either explicitly or by implication excludes [site-specific] art from moral-rights protection.”). 104 Id. at 307. 360 AIPLA Q.J. Vol. 46:3

The decision of Cohen II further challenges the scope of VARA protection.105 This case concerns the VARA rights of a group of graffiti artists and their work in murals.106 The Cohen II court never explicitly mentioned whether art is site-specific. 107 However, mural artists’ works are inevitably influenced and inspired by the environment, and in Kammeyer v. Oneida Total Integrated Enterprises, the Court mentioned that the mural might be “site-specific art.”108 On February 23, 2018, the district court awarded $6.75 million in statutory damages to 21 graffiti artists whose works were whitewashed by the building owner without notice.109 From the early 1990s, the exterior walls of the building, located in Long Island City, became the canvas for distasteful graffiti artwork (Figure 5).110 Cohen, a graffiti artist himself, proposed to manage the graffiti wall free of charge. 111 With Cohen’s effort, the building (commonly referred as the “5pointz”) evolved into “a mecca for high-end works by internationally recognized aerosol artists” and a major attraction for “thousands of daily visitors, including busloads of tourists, school trips, and weddings.”112

105 320 F. Supp. 3d at 427 (analyzing the framework of VARA and whether the graffiti artists were entitled to damages under VARA due to the willful destruction of their art). 106 Id. at 421 (describing 21 graffiti artists suing to protect their artwork from destruction). 107 Id. (failing to explicitly discuss whether the graffiti artwork was site-specific in the ruling). 108 No. EDCV 15-869-JGB (KKx), 2015 WL 5031959, at *5 n.5 (C.D. Cal. Aug. 24, 2015) (noting that a Mural may or may not be site-specific art but ultimately not resolving the issue). 109 Cohen II, 320 F.Supp.3d at 447. 110 See Cohen v. G & M Realty L.P. (Cohen I), 988 F. Supp. 2d 212, 218 (E.D.N.Y. 2013) (“Starting in the early or mid-1990s, the exterior walls had become a place for distasteful graffiti by many self-proclaimed aerosol artists.”). 111 See id. at 218−19 (noting that Cohen, known as graffiti artist Meres One, offered “to become the of the works” created, which was agreed to by the owner of the 5Pointz buildings). 112 Id. at 219; Cohen II, 320 F.Supp.3d at 433 (“[I]t was used for the 2013 motion picture Now You See Me, starring Jesse Eisenberg and Mark Ruffalo, and was the site of a notable tour for R&B singer Usher.”). 2018 My Art Versus Your Property 361

Figure 5. Distasteful Graffiti Artwork in Long Island City 113

Nonetheless, the building was scheduled to be knocked down to build a profitable luxury condominium.114 In the prior court decision, Cohen v. G & M Realty L.P. (“Cohen I”), the artists sued the building owner for a preliminary injunction under VARA due to the scheduled demolition of their work.115 The court denied plaintiff’s motion for a preliminary injunction for lack of merits but scheduled to issue a written opinion in a few days.116 Until now, the Cohen cases seemed like another failed VARA claim, but the plot was twisted by the property owner’s decision to whitewash the building graffiti (Figure 6) during the eight- day interim for court’s written opinion.117 The Court found that the Defendant willfully violated artists’ VARA rights with respect to 36 paintings. 118 The modification, mutilation and destruction were prejudicial to all the graffiti artists, and those 45 works qualified as a “recognized stature” under VARA.119 If the defendant appeals, this case will go to the Second Circuit. However, Judge Block

113 Giovanni Sgobba, The 5Pointz sacrifice will not be in vain: 6.7 million dollars to writers for deleted murals, MATTLUMINE (Feb. 16, 2018), https://www.mattlumine.com/5pointz-sacrifice-will-not-vain-6-7-million- dollars-writers-deleted-murals/ [https://perma.cc/2RRQ-W5D9]. 114 Cohen II, 320 F.Supp.3d at 421. 115 Id. (noting the denial of the motion for preliminary injunction at that time). 116 Id. 117 See Cohen I, 988 F. Supp. 2d at 214. 118 Cohen II, 320 F.Supp.3d at 427. Although the plaintiff waived the jury trail in the middle of the lawsuit, the court remain those jury in the form of advisory jury, the jury also found that of the 28 works of recognized stature that were destroyed, 20 had also been mutilated, modified, distorted or otherwise modified in a manner prejudicial to the artist’s honor or reputation. 119 Id. at 440. 362 AIPLA Q.J. Vol. 46:3 discussed all the factors thoroughly, 120 and it will be difficult to overturn this decision.121 While trying to harmonize with the laws of other parties to the Berne Convention, the post-VARA judicial decisions demonstrate an inconsistency regarding site-specific art.

Figure 6. Building Graffiti in Cohen122

B. THE UTILITARIANISM VIEW OF COPYRIGHT LAW AND THE PREFERENCE OF PROPERTY RIGHT LEADS TO COURTS’ RELUCTANCE TO EXPAND MORAL RIGHTS

Judicial inconsistency is unsurprising amidst tension between economic rights (i.e., property rights) and non-economic rights (i.e., moral rights). While

120 Cohen II, 320 F.Supp.3d at 427−30, 434−38, 441 (providing a lengthy analysis into the different requirements under the statutory framework of VARA). 121 But see Eileen Kinsella, The 5Pointz Developer Ordered to Pay Street Artists $6.8 Million for Whitewashing Their Work Is Now Pushing Back, ARTNET NEWS (Sept. 27, 2018), https://news.artnet.com/art-world/5pointz-real-estate- developer-appeals-order-to-pay-street-artists-1358323 [https://perma.cc/F9XD-ZK98] (last visited Oct. 7, 2018) (Wolkoff’s attorneys filed an appeal to the Second Circuit, asserting the art in question was not protected under VARA). 122 Eyder Peralta, New York’s Graffiti Mecca, 5Pointz, Was Whitewashed Overnight, NPR (Nov. 19, 2013, 5:47 PM), https://www.npr.org/sections/thetwo- way/2013/11/19/246208152/new-yorks-graffiti-mecca-5pointz-was- whitewashed-overnight [https://perma.cc/5PLB-9ACM]. 2018 My Art Versus Your Property 363 weighing competing interests, Congress noted that the protection of the artists’ right should not inhibit “the rights of copyright owners and users, and without undue interference with the successful operation of the American copyright system.”123 It seems that the U.S. legal system retains a vigilant attitude towards the expansion of moral rights. The origin of moral rights and the underlying principles of the U.S. copyright system may explain this attitude. Historically, moral rights were not popular in the U.S. legal system.124 The utilitarianism view of copyright law and the common law property right led to Congress’ reluctance to recognize moral rights.125 Under the utilitarian premise, the central purpose of U.S. copyright law is to create financial incentives for an author to “bring his work to market.”126 Most of the rights enjoyed by copyright owners are of economic concern and can be transferred or licensed, which creates flexibility.127 In comparison, some countries view copyright from a natural rights perspective, in which case the creator “has the right to reap the fruits of his creations, obtain rewards for his contributions to society, and protect the integrity of his creations as extensions of his personality.”128 Different views on the origin and purpose of copyright lead to various approaches regarding moral rights. In the U.S., recognizing moral rights is just a method to meet the end.129 Moreover, there is a long existing presumption that “statutes in derogation of the common law are to be read with a presumption favoring retention of long established principles, unless the statutory purpose is clearly to

123 H.R. REP. No. 101-514 at 10. 124 See Stuart, supra note 80, at 652 (“[C]ourts have historically been reluctant to protect artist’s moral rights in the United States.”). 125 See id. at 659 (noting that the U.S. takes this utilitarian view on copyright law and that “some of the difficulty in creating adequate legislation in the United States may stem from the differing views of copyright between the civil and common law countries”); see also Henry Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. LEGAL STUD. 95, 103−04 (1997) (arguing that art deserves greater protection under the law partly because it is not utilitarian). 126 Stuart, supra note 80, at 673 (examining the utilitarian view and noting that it conflicts with “protection of an artist’s moral rights”). 127 17 U.S.C. § 106A(e) (2012). 128 Stuart, supra note 80, at 672. 129 See Bonneau, supra note 30, at 48, 50 (explaining the view that moral rights— and thus VARA—are a “method” for privately enforcing the public interest in preserving art). 364 AIPLA Q.J. Vol. 46:3 the contrary.”130 Since property rights are among the oldest common law rights, courts presume priority property rights.131 Furthermore, moral rights entitle an artist the exclusive power over her work even after the title of the work has been transferred, which restricts the exploitation of the artwork.132

C. THE FIRST CIRCUIT’S PER SE EXCLUSION OF SITE-SPECIFIC ART FROM VARA IS QUESTIONABLE, AND SITE-SPECIFIC ART SHOULD RECEIVE MORAL RIGHTS PROTECTION

When moral rights face challenges from the utilitarianism view of copyright law and the presumption of prioritizing property rights, the First Circuit’s exclusion of site-specific art from moral rights protection remains questionable. 133 The First Circuit stated that site-specific art “[could not] be removed from its location without destroying it.”134 Therefore, if site-specific art receives VARA protection, it will “dramatically affect real property interests and laws” when the property owner cannot alter or relocate the site-specific work absent consent of the artist.135 To avoid overburdening the property owner, the First Circuit chose to exclude site-specific art from VARA protection.136 However, the First Circuit’s approach is questionable. First, in Phillips, the Court reached an over-broad decision based on a specific artwork that created substantial burden on the property owner.137 The First Circuit found persuasive

130 ANNE-MARIE RHODES, ART LAW & TRANSACTIONS 271 (2011). 131 See Claire Priest, Creating an American Property Law: Alienability and its Limits in American History, 120 HARV. L. REV. 385, 408 (2006) (explaining that protection of property rights in United States dates back to the 1600s and the laws of the colonies, which were in turn adopted from English law). 132 See 18 U.S.C. 106A(e)(2) (“Transfer of ownership of any copy of a work of visual art, or any exclusive right under a copyright, shall not constitute a waiver of the rights conferred.”); Amy M. Adler, Against Moral Rights, 97 CAL. L. REV. 263, 268 (2009) (noting rights conferred by VARA are waivable and that the moral rights granted exist for the artist’s lifetime). 133 See Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 143 (1st Cir. 2006) (holding that VARA does not protect site-specific art, therefore excluding it from said moral rights). 134 Id. at 141. 135 Id. at 142. 136 Id. at 143 (holding that VARA does not protect site-specific art at all). 137 Id. 2018 My Art Versus Your Property 365 the Plaintiff’s statement “site-specific art…can never be moved and must always be displayed.”138 However, the statement is not all true.139 Second, site-specific works are usually large in scale, and the creation process is time-consuming.140 For example, Christo and Jeanne-Claude’s 2005 work “The Gates” (Figures 7 and 8) consists of 7,500 -colored panels that stream along 23 miles along the . 141 The installation of “The Gates” went on for over a month. 142 During the installation or exhibition period, a site-specific piece is subject to the risk of being modified, mutilated, or even destroyed. Excluding site-specific artwork from VARA protection will also leave the “unfinished work” unprotected. It harms both the interest of the artists and the public that are willing to explore the work.

138 Phillips, 459 F.3d at 143. 139 See supra Part IV.B.1 (discussing the removability of site-specific art); see also Artworks: The Gates, CHRISTO AND JEANNE-CLAUDE, http://christojeanneclaude.net/projects/the-gates?view=info [https://perma.cc/5DMR-9GLG] (last visited Oct. 6, 2018) (“The work of art remained for 16 days, then the gates were removed and the materials recycled.”).

140 See, e.g., Artworks: Realized Projects, CHRISTO AND JEANNE-CLAUDE, http://www.christojeanneclaude.net/artworks/realized-projects [https://perma.cc/RF9B-RBPE] (last visited Aug. 10, 2018) (demonstrating examples of large site-specific artwork). 141 See Press Release, NYC Parks, City Announces Details of Christo and Jeanne-Claude’s Project: The Gates in Central Park (Nov. 22, 2004), https://www.nycgovparks.org/news/press-releases?id=19300 [https://perma.cc/4KP6-AYGF]. 142 See id. 366 AIPLA Q.J. Vol. 46:3

Figure 7. The Gates 1143

Figure 8. The Gate 2144

Moreover, site-specific artists value freedom of creation, and many of their works are “anti-idealist” and “anti-commercial.”145 When an artist performs the

143 The Gates, CHRISTO AND JEANNE-CLAUDE, http://christojeanneclaude.net/projects/the-gates?images=completed [https://perma.cc/P3AG-NTCA] (last visited Aug. 10, 2018).

144 Christo and Jeanne-Claude, The Gates, KHAN ACADEMY, https://www.khanacademy.org/humanities/ap-art-history/global- contemporary/a/christo-and-jeanne-claude-the-gates [https://perma.cc/SZ72- ZQTD?type=image] (last visited Aug. 10, 2018).

145 KWON, supra note 9, at 1; see also Frequently Asked Questions, CHRISTO AND JEANNE-CLAUDE, http://www.christojeanneclaude.net/faq [https://perma.cc/DMC8-YT4U] (last visited Aug. 10, 2018) (“Christo and Jeanne-Claude firmly believe that to accept deals of this kind would alter 2018 My Art Versus Your Property 367 work without targeting economic gains, the non-economic rights (i.e., rights of attribution and integrity) of the art piece should be emphasized. For instances, Christo and Jeanne-Claude funded their work by selling their old pieces, and they always got permission before they started the work.146 Denying VARA protection to a time-consuming, largely non-economic driven work, even when the work is unfinished or under exhibition, is too rigid and works against the purpose of copyright law. Further, the First Circuit’s “all or nothing” approach opens doors for courts to categorically exclude art forms in the future. 147 This approach has a sweeping effect and brings the U.S. farther from the international standard recognized in the Berne Convention.148 When people think of site-specific art, they might think of something gigantic, such as Christo and Jeanne-Claude’s work “Surrounded Islands” (Figure 9 and Figure 10), for which they wrapped several islands in Biscayne Bay, Florida with pink materials. 149 Naturally, those works may impose a huge burden on the property owner if they cannot remove it without the artists’ consent.150 However, since site-specific art is vaguely defined, and it overlaps with other art forms like , public art, and . The exclusion of site-specific art will inevitably affect some other artworks that should otherwise be within the narrow scope of VARA protection.

and compromise their art . . . . Refusing this money assures them they are working in total freedom.”). 146 See Frequently Asked Questions, supra note 145 (explaining that several projects have failed because the artists could not get permission). 147 Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 142 (1st Cir. 2006) (explaining the court’s view that the rights of artists would directly be in conflict with property owners, so only the property owners can have rights when it comes to site-specific art). 148 See Berne Convention for the Protection of Literary and Artistic Works, supra note 21, at 227 (recognizing moral rights generally without the caveats placed on site-specific art by the First Circuit). 149 See The Gates, supra note 143 (showing the islands surrounded by the pink material). 150 See Hansmann & Santilli, supra note 125, at 101 (explaining that servitudes, such as the moral rights to site-specific art, can “can impose on owners the burden of keeping track” and of “negotiating with the owner of the servitude to seek permission” if the owner of the land wants to use their property in a certain manner). 368 AIPLA Q.J. Vol. 46:3

Figure 9. Surrounded Islands 1151

Figure 10. Surrounded Islands 2152

In addition, although VARA leaves flexibility in the courts’ interpretation, no language in VARA indicates that the court could categorially exclude any art form.153 Finally, a per se exclusion of site-specific art from VARA protection may have a chilling effect on international art collaboration. Nowadays, international art collaborations are common, and disputes sometimes arise. For example, in Massachusetts Museum of Contemporary Art Foundation, Inc. v Büchel, Swiss artist Büchel objected to the Massachusetts museums’ exhibition of an unfinished

151 The Gates, supra note 143; Surrounded Islands, CHRISTO AND JEANNE-CLAUDE, http://christojeanneclaude.net/projects/surrounded- islands?images=preparatory [https://perma.cc/DC35-QPAD] (last visited Aug. 10, 2018). 152 The Gates, supra note 143; Surrounded Islands, supra note 157. 153 See supra Part II.C. VARA left terms like “recognized stature,” “prejudicial,” and “honor and reputation” undefined, thus leaving flexibility for the courts to interpret. See generally 17 U.S.C. § 106A (2012) (having no definitions for these terms, including a lack of relevant exclusionary language). 2018 My Art Versus Your Property 369 version of his artwork when the museum staff changed his instructions of the artwork’s installation without informing him.154 When U.S. recognition of moral rights departs from the international standard, international artists will receive less protection holding exhibitions in the U.S. than in countries that recognize broader moral rights. Whether recognizing moral rights furthers the public interest or not, many site-specific artworks are thought-provoking and aesthetically impressive. For the unique value and message conveyed in site-specific art, an artist should receive VARA protection at least under limited circumstances. Also, it’s not for the judge to discern “good art” from “bad art,” and it should not be the judge’s role to decide whether certain art form should be excluded from VARA protection.155 Keeping the door open to new genres of art will send a positive message to the art community and encourage creativity.

IV. A VARA AMENDMENT PROPOSAL: EXTEND PROTECTION OVER SITE- SPECIFIC ART BY APPLYING A MULTIFACTOR BALANCING TEST

The Phillips decision has stirred up much controversy and discussion. Some proposed amendment to certain VARA provisions; some suggested alternative theories to protect artists’ moral rights. The note suggests imposing a multifactor balancing test for courts to decide whether a piece of site-specific art falls in the protection of VARA.

A. OTHER PROPOSED AMENDMENT

The VARA applications to site-specific art are subject to various scholarly debates. Several scholars have proposed amendments to VARA to accommodate a broader scope of moral rights protection. 156 One scholar has suggested that VARA should include a compulsory government-commissioned work waiver, making the artist waive his moral rights whenever he contracts with the government to install a work in a public space.157 This scholar noted Congress’

154 Büchel, 593 F.3d at 45. 155 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (discussing how judges are not “finals judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits”). 156 See, e.g., Norton, supra note 59, at 784 (proposing “[a]n amendment to VARA extending protection to non-commissioned, site-specific art”). 157 See Garson, supra note 12, at 240 (“The waiver clause would provide that when an artist agrees in writing to install a work for a specific public space, and acknowledges that its removal would effectuate either its conceptual or 370 AIPLA Q.J. Vol. 46:3 concern for the burden that site-specific art imposes on public land, but her proposal did not impose the burden on private property owners.158 Another scholar has proposed an amendment to the “public presentation exception” of VARA. 159 The “public presentation exception” exempts the modification of an artwork which is the result of conservation or public display, but excludes the modification caused by gross negligence. 160 The scholar suggested the “public presentation exception” should also exclude “site-specific art that has not been commissioned by or sold to another person, governmental entity, or business of any kind,” and therefore brings non-commissioned site- specific artwork under the protection of VARA. 161 This suggestion is straightforward and easy to apply but fails to balance the interests of various parties involved. If adopted, it will result in moral rights protection over all qualified site-specific art, even those that may cause an enormous burden to the property owner. Still, another scholar suggests limiting the VARA preemption over state laws and thereby giving states more leeway in deciding their policies over moral rights and property right conflicts.162 However, opening the gates for the state to do their own decisions may lead to drastic difference between state laws, which encourages forum-shopping and makes law compliance more complex.

physical destruction, the artist does not have a moral right to prevent such removal under VARA.”). 158 See Garson, supra note 12, at 242−43 (explaining that, without the proposed waiver, artists could enjoin the public from using a certain space, and that such fears caused members of Congress to vote against VARA). 159 See Norton, supra note 59, at 784. 160 See 17 U.S.C. § 106A(c)(2) (2012) (“The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification . . . unless the modification is caused by gross negligence.”). 161 Norton, supra note 59, at 784. 162 See Carrie Jones, Note, Site-Specific Art Parks on Moral Ground: Distilling Old Whine in New Battles over the Visual Artists Rights Act, 9 COMPUTER L. REV. & TECH. J. 355, 389 (2005) (explaining the benefits of limiting federal VARA preemption over state laws). 2018 My Art Versus Your Property 371

Moreover, there are voices proposing alternative theories to protect artists’ moral rights.163 For instance, contract law could be a powerful tool for protecting artists’ rights.164 A commentator suggest site-specific artists could retain control over their work by including contract provisions such as prior notice of removal, years of preservation, and artwork buyout upon removal. 165 These provisions would give the artists greater flexibility regarding their rights and create certainty and predictability. 166 However, the imbalance in bargaining power between property owners and artists may not leave the artists much room to negotiate.167 Additionally, trademark law may provide an artist an alternative method of protection. In Gilliam, the Court recognized the writer’s right of integrity under the Lanham Act.168 Nonetheless, under this theory, the plaintiff must show the mutilated work has “deformed” the original work, which is a difficult burden of proof to meet.169

163 See, e.g., Cascio, supra note 20, at 196 (discussing possibilities for more adequately protecting the rights of authors, such as a buyout clause). 164 See, e.g., Jones, supra note 162, at 369 (“[M]any view contract law as the most effective and readily available tool to protect and enforce artists’ integrity interests.”); Cascio, supra note 20, at 195 (finding that given the current uncertainty of how site-specific works are protected under VARA, artist have to use contract to protect their rights); Nathan M. Davis, As Good as New: Conserving Artwork and the Destruction of Moral Rights, 29 CARDOZO ARTS & ENT.L.J. 215, 248 (2011) (“Contracting may memorialize the expectations and roles of the parties involved and bring clarity to conservation endeavors that may reduce the scope, expense, and pitfalls of litigating VARA claims.”). 165 See Cascio, supra note 20, at 196. 166 See Symposium, Authors, Attribution, And Integrity: Examining Moral Rights in the United States, 8 GEO. MASON J. INT’L COM. L. 1, 36 (2016) [hereinafter Examining Moral Rights] (expounding on the view that contracts give parties “a great degree of flexibility in terms of how to develop and conduct their own relationship with respect to the publication of work”). 167 See Cascio, supra note 20, at 195 (noting the superior bargaining position of the land owners in these negotiations because they “control the money and land”). 168 Gilliam v. Am. Broad. Cos., 538 F.2d 14, 24−25 (2d Cir. 1976) (finding that there was a cause of action under the Lanham Act against the distortion of the original work, thus supporting the notion that the creators had a right to protect the integrity of that work). 169 See Rebecca J. Martel, The Should-it-Stay or Should-it-Go Spotlight: Protection of Site-Specific Art under VARA, 13 DEPAUL J. ART TECH. & INTELL. PROP. L. 101, 372 AIPLA Q.J. Vol. 46:3

Finally, one scholar has proposed that U.S. moral rights should get closer to the international standard by (1) recognizing additional moral rights, such as the rights of divulgation and the right to repent; (2) creating rules regarding the succession of the moral rights; (3) allowing waiver in limited circumstances so as to provide the strongest possible moral rights protection; (4) eliminating unclear terms like “prejudicial to artist’s honor and reputation” and “recognized stature”; (5) “narrowing the public presentation exception”; and (6) adopting a “balancing test to determine the extent of protection.”170 Applying a balancing test takes a middle ground; it avoids the total exclusion of an art category and could expand the scope of moral rights without creating too much burden on the interested parties. If appropriately applied, this balancing test will filter out certain site- specific work that lacks social or artistic value or creates a huge burden on the property owner.

B. COURTS SHOULD ADOPT A MULTIFACTOR BALANCING TEST TO DECIDE WHETHER A SITE-SPECIFIC WORK SHOULD BE PROTECTED

As discussed above, merely amending specific VARA provisions may not balance the interests of the various parties involved.171 Instead, the adoption of a judicial balancing test to define the VARA scope of protection creates flexibility. The balancing test could either be adopted by courts or be codified in the statute if proved effective. 172 Under this test, the factors which should be considered include (1) the removability of the artwork; (2) the burden on the property owner; (3) the good faith conduct and attitude of the parties; (4) the artists’ intention; and (5) the public voice. The multifactor test should be used by courts to decide whether a work of site-specific art falls within the scope of VARA. It would serve as an additional judicial test on top of the VARA statute requirements.

106−07 (2003) (explaining that the Gilliam court found a violation under the Lanham Act after making a determination that the work had been deformed, thereby creating something with the plaintiff’s name attached that they did not create). 170 Stuart, supra note 80, at 677−83. 171 See supra Part IV.A. 172 See, e.g., 17 U.S.C. § 107 (2012) (providing an example of a codified balancing test, here for proper application of the fair use doctrine). 2018 My Art Versus Your Property 373

1. Removability of the Artwork

The first factor courts should consider is the removability of the artwork. Congress has anticipated this factor in VARA’s building exception.173 The building exception differentiates between works that can be removed from the building and those that cannot. 174 For site-specific art, the removal and installation will not physically damage the work itself but could lead to a “conceptual destruction.”175 In those cases, the artist will argue the removal of the work constitutes a “modification, mutilation or destruction” of the work and, under VARA, the property owner cannot remove the work absent the artist’s consent.176 That is the scenario Congress and the courts are trying to avoid. In Phillips, the First Circuit refused to accept “conceptual destruction” as a valid ground for an artist to pursue her rights under VARA. 177 But, even assuming courts accept the idea of conceptual destruction, relocation of site- specific art does not necessary lead to destruction.178 For site-specific artists, there are two ways for choosing a site. 179 In the first case, the artist has “a specific

173 See supra Part II.B.4. 174 See 17 U.S.C § 113(d) (2012) (prescribing under what circumstances the building exception does and does not apply). 175 See Garson, supra note 12, at 230 (describing “conceptual destruction” as stripping the created artwork from the chosen site—thus conceptually destroying it—even though it may remain intact at another location). 176 See 17 U.S.C. § 106A(a)(3) (2012) (protecting the rights of artists to prevent mutilation, modification, or destruction of their work, which they could assert against the property owner); § 106A(e)(1) (allowing the artist to waive these rights and give consent to the “conceptual destruction” of the site-specific art). 177 Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 141, 143 (1st Cir. 2006) (explaining that to allow the idea of conceptual destruction would conflict with the explicit public presentation exception found in VARA). VARA did not preclude the reorganization of “conceptual destruction.” The relevant provision only mentions the broad term “any destruction,” without specifying whether the destruction is physical or conceptual, leaving its meaning open for further interpretation. 17 U.S.C. § 106A(3)(B). 178 Kelley v. Chi. Park Dist., 635 F.3d 290, 307 (7th Cir. 2011) (“Site-specific art is not necessarily destroyed if moved; modified, yes, but not always utterly destroyed.”). 179 See Frequently Asked Questions, supra note 145. 374 AIPLA Q.J. Vol. 46:3 building, structure or location in mind.”180 In the second case, the artist only has an idea for a project but not a specific physical location for the work.181 For the project “Over The River, Project for the Arkansas River, State of Colorado,” artist Christo drew the early rendition of his vision based on an imaginary landscape.182 To find a real-world place that resembled their imaginary landscape, Christo and Jeanne-Claude searched and inspected 89 rivers for a best fit.183 Under the second method, as long as there is another location that is also a good fit for the art project, the removal and relocation of the artwork will not constitute conceptual destruction. Therefore, the removability of site-specific art should be evaluated by whether there is an alternative location that is conceptually similar to the original location. Through this comparison, certain site-specific work that was created upon a broader definition of a site (e.g., cliff, seaside, modern city, etc.) could find a similar location to relocate and should, therefore, be viewed as removable. However, for those works created upon on a narrower conception and more specific location, it is difficult to find a place of substitution and should, therefore, be viewed as non-removable. Take the Charging Bull as an example. The statue was installed on the Wall Street right after the 1980s financial crisis.184 With the special meaning of “market rejuvenation,” the artwork is defined by its location— the Wall Street, the most famous economic center around the world. Therefore, the Charging Bull will likely be viewed as non-removable. Courts may consult the artist and experts to decide whether a piece of site-specific art could be deemed as removable. A removable site-specific work is more likely to be protected by VARA under the balancing test.

180 See Frequently Asked Questions, supra note 145; see also Earth Art Movement Overview and Analysis, supra note 14 (“Locales were commonly chosen for particular reasons. Robert Smithson, for example, picked damaged sites for his works in order to suggest renewal and rebirth.”). 181 See Frequently Asked Questions, supra note 145. 182 See id. 183 See id. (explaining that the two artists “inspected 89 rivers in search of the river that would provide all the characteristics they were looking for”).

184 See CHARGING BULL, http://chargingbull.com/chargingbull.html [https://perma.cc/5PS8-DYYP] (last visited Aug. 10, 2018) (explaining that Arturo Di Modica felt that the Charging Bull could be an “antidote to the Wall Street crash of 1986”). 2018 My Art Versus Your Property 375

2. Burden of the Property Owner

The second factor courts should consider is the burden of the property owner. As discussed in Part III.B, the U.S. legal system has a long-standing history of respecting property rights. 185 Whether the site-specific art piece imposes a burden on private or public land will certainly be an important factor. While weighing the burden on the property owner, the court may consider the scale of the artwork, the time (or proposed time) of the display, the cost of removal, whether the land is public or private, and the like. For example, in Phillips, the scale of the artwork is huge (27 sculptures scattered around the park), and the artist wished for the work to remain in its original location permanently. 186 In artwork of this scale, the cost of removal and relocation will be enormous. However, if all 27 statutes cannot be moved, it will essentially make renovation or reconstruction of the park impossible. The First Circuit noticed that such restrictions are not required to be recorded in deeds but substantially “encumber private and public land with restrictions lasting for the life of the artist plus fifty years.”187 Therefore, the facts in Philips under this factor will favor the property owner.

3. Conduct and Attitude of the Parties

The third factor courts should consider is conduct and attitude of the parties. In Cohen v. G & M Realty L.P., the district court considered the conduct and attitude of the parties. 188 At the beginning of the opinion, the court noted the plaintiff/artists were “respectful, articulate and credible.”189 In contrast, the court found the defendant Wolkoff to be “a difficult witness” who “frequently ignored or challenged instructions by the Court.” 190 However, the intentional

185 See supra Part III.B. 186 Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 135−36 (1st Cir. 2006) (quoting Phillips v. Pembroke Real Estate, Inc., 288 F. Supp. 2d 89, [x] (D. Mass. 2003), certified question answered, 443 Mass. 110 (Mass. 2004), and aff’d, 459 F.3d 128 (1st Cir. 2006)) (describing Phillip’s belief that the sculptures cannot be moved without destroying the integrated work of art that the sculptures create together). 187 Id. at 142. 188 No. 13-CV-05612(FB)(RLM), No. 15-CV-3230(FB)(RLM), 2018 WL 851374, at *5−6 (E.D.N.Y. Feb. 12, 2018). 189 Id. at *5. 190 Id. at *6. 376 AIPLA Q.J. Vol. 46:3 whitewashing of the mural while waiting for the Court’s decision may have been an important factor that led to the order of $6.7 million in damages.191 While weighing this factor, the court may consider whether there is a good faith notice from the property owner, whether there is any willful conduct or out- of-court self-help that hinders the judicial proceeding, whether parties went through a fair negotiation process before the project launched, and the like. This factor will have a deterrent effect for parties whose conduct causes unnecessary hardship for other parties or the court. Good faith conduct should be encouraged, and willful destruction may lead to an unfavorable result.

4. Artists’ Intention

The fourth factor courts should consider is the intention of the artists. At the core of VARA is the artistic control over the artwork, primarily stemming from concern for the artist’s reputation. 192 In Pollara v. Seymour, the Court took the artist’s intention into consideration while deciding the claim.193 The Court ruled against moral rights protection, finding that the work “was intended solely as a display piece for a one-time event” and that the artist had no intention to keep the work permanently.194 Artists have different expectations for their artwork, and some artists may be positively involved in the artwork’s future removal and relocation. In Martin v. City of Indianapolis, knowing about the future removal, the artist proposed several plans and suggested to donate the sculpture if the city would bear the costs of removal.195 On the other hand, prior notice to the artists allows them to save or record the work before it is too late.196 In those cases, artists should be given enough notice, and their proposal should have chances to be

191 2018 WL 851374 at *17 (using words like “callously” and “fanciful and unfounded” to describe the Defendant’s testimony of the reason why he chose to whitewash ). 192 See supra Part II.B.1. 193 206 F. Supp. 2d 333, 336−37 (N.D.N.Y. 2002), aff’d, 344 F.3d 265 (2nd Cir. 2003) (finding there was never any intent by the artist to preserve her work for future display). 194 Id. at 336−37. 195 192 F.3d 608, 614 (7th Cir. 1999) (“The company made repeated efforts to contact the mayor, and other city officials… The artist himself repeated the proposal to move the piece at the hearings, and wrote a letter to the mayor reiterating this proposal.”). 196 See Cohen II, 320 F.Supp.3d 421, 443–44 (finding that the defendant could have given the plaintiffs prior notice to allow them to salvage their works). 2018 My Art Versus Your Property 377 heard and discussed. Demolishing the artwork without any notice is a substantial loss to both the artist and the public, and it is against the purpose of VARA.

5. Public Voice

The fifth factor courts should consider is public voice. VARA not only concerns protecting the artist’s rights of attribution and integrity but also serves the “public interest in art preservation.”197 If VARA claims involve the destruction of the work, according to § 106A(a)(3)(B), the work must be a “recognized stature” to enjoy moral rights protection.198 The balancing test requires an evaluation of the artistic value of the artwork. Usually, it leads to an expert battle, and sometimes public opinions are adopted.199 In Martin v. City of Indianapolis, the Seventh Circuit found the large outdoor sculpture was a work of “recognized stature,” as supported by evidence of a news report, various supportive letters, and the fact that it had won an award.200 In Cohen II, the district court also allowed an advisory jury to present after the plaintiff waived their right to a jury trial.201 Their advice regarding whether the aerosol artworks constitute works of “recognized stature” were not binding, but it serves as a window for the court to evaluate the public opinion.202

197 Bonneau, supra note 30, at 50 (arguing that this service to the public interest is the “basic purpose” of VARA). 198 17 U.S.C. § 106A(a)(3)(B) (2012) (noting that artists “have the right to prevent any destruction of a work of recognized stature”). 199 See supra Part II.C. 200 192 F.3d at 612, 614 (affirming the decision by the district court that the proffered articles and letters demonstrated the sculpture had achieved recognized stature). 201 Cohen II, 320 F.Supp.3d at 427. The judge can appoint an advisory jury to “enlighten the conscience of the court” at his discretion during a trial. However, the advisory jury’s opinion is not binding, and the judge is free to disregard the findings of the advisory jury. During an advisory jury try, the judge will make his own finding of facts and conclusions of law. See Practice and Potential of the Advisory Jury, HARV. L. REV. 1363, 1364–65 (1987). 202 Cohen II, 320 F.Supp.3d at 430 (quoting NAACP v. Acusport Corp., 226 F. Supp. 2d 391, 398 (E.D.N.Y. 2002)) (“Because advisory juries permit community participation and may incorporate the public’s views of morality and changing common law, their use is particularly appropriate in cases involving community-based standards.”). 378 AIPLA Q.J. Vol. 46:3

C. PROS AND CONS OF THE PROPOSED AMENDMENT

The multi-factor balancing test adds flexibility and provides fairness to both parties. The test respects the rights of both the property owner and artist by recognizing their respective burdens and intentions. The flexibility gives the test room for development; common law development of the test should address issues of whether the factors are conclusive and what weight each factor should carry. The test will be reshaped and improved by zealous discussions from both property owners and artists. Like the fair use doctrine, this balancing test will never function as a bright-line test. There will be different interpretations of the definition and weight of the factors. For example, the Seventh Circuit is more artist-friendly, and the First Circuit is more supportive of property owners.203 Applying a balancing test also occupies court resources and increases the court dockets. However, this concern may be resolved by creating a small claims court for VARA claims or involving certain arbitration or mediation programs. Finally, the expansion of moral rights could be a mixed blessing. 204 Although VARA rights are non-transferable and last for the author’s life, it could easily be waived by signed written consent.205 When the courts start to favor artists for VARA claims, property owners will be incentivized to put the waiver into the contract, and the artists will have to choose between either not putting their artwork on public display or waiving their VARA rights completely.206 The over-

203 See, e.g., Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 143 (1st Cir. 2006) (holding that VARA does not protect site-specific art); Kelley v. Chi. Park Dist., 635 F.3d 290, 307 (7th Cir. 2011) (disagreeing with the First Circuit’s harsh stance against artists’ rights under VARA for site-specific art). 204 See Ephrat Livni, A Landmark Court Case Affirms That is High Art, QUARTZ (Feb. 15, 2018), https://qz.com/1206623/a-landmark-5pointz-case- shows-the-legal-reasons-why-graffiti-is-art [https://perma.cc/78M3-73Q8] (explaining the pros and cons of moral rights expansion, in that a New York court awarded $6.75 million for 44 aerosol art works destroyed by a real estate developer, but that this raises questions about whether building owners will be reluctant to allow artists to create such works in the future). 205 See 17 U.S.C. § 106A(e)(1) (2012). 206 See Livni, supra note 204 (discussing some of the ramifications of allowing VARA protection for these murals and that the legal issue of waivers has the potential to become a larger part of the conversation due to concerns from property owners). 2018 My Art Versus Your Property 379 expansion of moral rights may eventually lead to an erosion of the current moral rights regime.

V. CONCLUSION

Site-specific art is a unique art form in which artistic expression depends on both the site and the artwork itself.207 The adoption of VARA only recognized limited moral rights protection, and the court should continue to limit this protection with more categorical exclusions of art forms. With the tension of property owners and the artists in mind, a balancing test provides flexibility and equality to the game. To avoid the chilling effect on artists’ expression or overburdening the property owners, the courts should adopt a multi-factor balancing test to decide whether a piece of site-specific work deserves moral rights protection under VARA.

207 See Garson, supra note 12, at 230 (explaining that site-specific works inherently depend on their context, with the “crafted” art combining with the independent “readymade” location); see also KWON, supra note 9, at 1 (explaining that physical conditions are “integral to the production, presentation, and reception of art”). 380 AIPLA Q.J. Vol. 46:3