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Volume 46, Number 3 Page 341 Summer 2018 NOTE MY ART AIPLA QUARTERLY JOURNAL Volume 46, Number 3 Page 341 Summer 2018 NOTE MY ART 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. Artists’ Intention ................................................................. 376 5. Public Voice ......................................................................... 377 C. PROS AND CONS OF THE PROPOSED AMENDMENT .......................... 378 V. CONCLUSION ................................................................................................... 379 LIST OF FIGURES 1. Figure 1. Fearless Girl 1 .............................................................................. 344 2. Figure 2. Fearless Girl 2 .............................................................................. 344 3. Figure 3. Sun Tunnels Nancy Holt ........................................................... 346 4. Figure 4. Sun Tunnels ................................................................................. 347 5. Figure 5. Distasteful Graffiti Artwork in Long Island City ................... 361 6. Figure 6. Building Graffiti in Cohen .......................................................... 362 7. Figure 7. The Gates 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 statue of a school- aged girl standing fearlessly (Figure 1 and Figure 2) was installed directly in front of the massive Wall Street icon, the “Charging Bull.”1 Arturo Di Modica, the artist 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 art history 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
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