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January 16, 2024 Feature

Art Commission Agreements and VARA Moral Rights

Christopher J. Robinson

©2024. Published in Landslide, Vol. 16, No. 2, December/January 2024, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

There are perhaps few more exciting creative acts available to the nonartist than the commissioning of a work of art. But what should be a positive experience is too often fraught with misunderstanding, and it may end with a result that is dissatisfying to both parties. The dynamic between the artist and the commissioning client may vary widely, coloring their expectations. A museum or foundation, commissioning for its collection or in accordance with its mission, will typically act with great deference to the artist, in terms of content, timeline, and the allocation of risks and rights. A private collector or corporation, on the other hand, may have more defined parameters for the work of art based on its intended location or an anticipated exploitation of the work’s intellectual property. The dynamic can also change radically depending on the market status of the artist, or when the commissioning party is a governmental entity working within strict guidelines, or if the artist is contracting through a gallery as its exclusive representative. In any event, as with other areas of the law, the more the parties can anticipate potential issues and account for them in a written agreement, the less likely it is that serious conflict will occur.

Principal Issues in Art Commission Agreements

Any good art commission agreement will contain, at a bare minimum, certain provisions.

First, the amount and timing of the fee should be clear, and whether the fee is payable to the artist directly or through their agent. The fee may simply be a fixed fee, which will either include all expenses of fabrication or break out the artist’s fee and a fabricator’s fee separately, or sometimes it may also include a license for promotional or merchandising purposes. It should also be agreed what happens to payments already made and the balance of the commission fee if the project is canceled or rejected, depending on who was at fault.

The scope of the commission—media, size, subject matter—and the creative control of the project should be spelled out as clearly as possible, in particular, whether and when the commissioning party may comment on or approve of the work, the process for negotiation of any creative differences between the parties, and whether installment payments are tied to approval benchmarks.

Difficulties can arise concerning delivery dates. The agreement may contain purely aspirational timelines that are unenforceable, as with a commission from a major artist with a waiting list of commissioned work, or it may have immovable timelines, for example, if the work is slated for inclusion in a particular event such as a fair or museum exhibition. If late delivery would frustrate the purpose of the commission, the agreement may allow for termination or a lesser penalty. Inspection and delivery may be further subdivided, with separate dates for a design or maquette, for a full-size model, for onsite delivery, and for final installation.

The commission agreement, especially if for a corporation, museum, or other entity, will state that the artist is acting as an independent contractor, not as an employee of the commissioning entity. As an independent contractor, the artist will likely be required to provide evidence of insurance, especially if the work is a large sculpture or mural, involves a team of studio assistants, or requires transport and complex installation. The agreement should spell out who bears the risk of loss or damage at each stage of the process, including during storage and shipment, and will likely require the artist to warrant the quality of their workmanship and materials used. If the work is intended for a public space, the agreement should designate the party responsible to ensure that the location is properly prepared and has the necessary permits and zoning, and that load-bearing and environmental concerns have been addressed. This is usually the responsibility of the commissioning entity, but an artist who is using their own assistants and contractors for installation may share some of those burdens.

Relatedly, if the nature of the commission involves third-party fabricators, such as a foundry for bronze sculpture or a latex mold, the contractual relationship among the three parties involved should be carefully laid out, both in the main commission agreement and in subsidiary agreements between the fabricator and artist, or fabricator and commissioning entity. If the artist is committing to certain deadlines and warranties with the client, those should be carefully reflected in the artist’s own agreement with the fabricator and any other subcontractors. If the commission involves expensive raw materials, such as bronze, or if it will take a long time to complete, there should be provision for expense adjustments so that the artist is not forced to pay such increased costs from the artist’s fee.

It is in the best interest of both parties to include provisions concerning the maintenance, cleaning, and repair of the artwork, including the replacement or repair of any perishable or unstable elements. While the owner will have discretion on cleaning and minor repairs, the agreement should provide for the artist to consult on anything more serious or to do the work themself. Some artists will insist that a particular trusted restorer or fabricator do the repair or risk the artist publicly disavowing the result.

As in any contract, the agreement should include detailed termination rights. When and on what grounds can a party terminate the commission? What happens to payments already made or not yet due, and what happens to the work itself, whether unfinished in the possession of the artist or delivered to the client? Does the commissioning entity have the right to complete the work in some form, or must it be destroyed? And generally, as in most personal services contracts, the death or incapacity of the artist will terminate the commission.

Finally, the agreement should address intellectual property and related rights such as moral rights and merchandising. These can often be vexed issues and, certainly with merchandising and other commercial licensing, the agreement may punt on the details and simply state that it grants no rights to exploit the commissioned work commercially, and such rights, if they become relevant, will be the subject of a separate agreement between the parties.

Whenever the artist can, they will retain all copyright in the commissioned work and any derivatives of it, now including non-fungible tokens (NFTs). There will typically be some limits to the artist’s retained copyright, however—for example, while the commission and purchase of a work of art includes the right to display the object itself (and to lend to others such as a gallery or museum to display), the artist will usually grant a license to the client to also reproduce it for a noncommercial purpose. The agreement may also require that the work is and will remain unique, and that the artist will not create a substantially similar work or close derivative, at least in the same medium or for a similar location.

There are exceptions, however, when the artist is commissioned to create work specifically for commercial products, or if a corporation has commissioned artwork intended to serve a broader purpose, such as a trademark. Under those circumstances, the artist may be asked to agree not to oppose a trademark registration that incorporates the work, and the agreement may explicitly assign all copyrights to the client for a fee, or it might state that the work is one for hire ab initio. In the event of a dispute, however, courts will look carefully to determine whether the traditional work-for-hire factors are satisfied, regardless of what the agreement claims the relationship to be.

Occasionally, a commissioning party may seek to claim coauthorship of a joint work. This can be tempting if, for example, the commissioning entity, such as a foundation or museum, sets forth the creative program, provides all the resources including materials and labor to create the work, and has some input in changes to the work during execution. Each coauthor can exercise all the rights of a single author, though they must account to the other coauthor for any revenues that result. But for good reason, such attempts are rare and are even more rarely successful.

A related issue is that of moral rights, in particular under the Visual Artists Rights Act of 1990 (VARA). Under the statute, an artist is accorded two fundamental rights: the right of attribution and the right of integrity. The former governs the use of the artist’s name in association with works they did or did not create, the latter against distortion, mutilation, modification, or destruction of those works. Disputes are becoming more frequent as the rights accorded under the act are better known, as is the client’s insistence on a VARA waiver in the commission agreement. An artist faced with such an agreement can often claw back some of those waived rights in specific contractual provisions—for example, requiring proper credit in connection with the work, the right to notice if the work needs to be moved or altered, and the right to supervise any repairs.

Moral Rights in Action: Kerson v. Vermont Law School

A recent case in the Second Circuit illustrates some of the difficult issues that can arise for commissioned works under VARA. In 1993, the private Vermont Law School commissioned the artist Samuel Kerson, with help from other artists and the local community, to paint two large murals to illustrate the evils of slavery and Vermont’s role in the Underground Railway. Over the years, the murals drew increasing complaints from students at the law school who objected to the cartoonish depiction of Black people in the murals and the alleged insensitive treatment of the subject matter, to the point that in August 2020 the law school informed the artist that it intended to cover or remove the murals and gave him the opportunity to retrieve them. Because the murals post-dated 1990, the effective date of VARA, and Kerson had signed no waiver, the artist’s statutory rights were implicated.

Under VARA’s exception for a work incorporated into a building, such as a mural, if the work can be removed without damaging or destroying it, the owner must notify the artist and give them the option to remove it within 90 days at the artist’s expense. If the work cannot be removed without damaging or destroying it, however, the artist can seek to enjoin any action by the owner. If the owner has already acted, the artist can seek statutory damages.

In prior disputes, it has been generally understood that much artwork incorporated into a building can be removed with relatively small damage that is repairable, even if expensively, including works executed on wood, brick, and sheetrock, and that such damage should not constitute a “distortion, mutilation, modification, or destruction” of the work sufficient to justify an injunction. For example, it could be argued by parties looking to compromise that the sheetrock panels on which the large murals in Vermont were painted could have been cut or disassembled, the panels removed and reassembled elsewhere, and the damage retouched, perhaps with a financial contribution from the law school. But the artist took the position that even what appears to be repairable damage constituted a mutilation or modification of his work, and the law school acquiesced, with the result that the law school could not remove or paint over the murals.

The law school’s proposed solution was to cover the murals with acoustic panels on a framework that would not touch their surface and thus, in theory, not damage them. Again, a compromise solution may have covered the murals with curtains, or some other temporary barrier that could be removed, sparing the students from its offensive content but permitting occasional viewing. The law school insisted on nothing less than permanent encasement.

Kerson sued under VARA, asserting that the permanent covering constituted a modification or destruction of the work because (1) the conditions in the enclosed wall space would cause the murals to deteriorate and (2) preventing anyone from viewing them would damage his reputation and standing, the very injury that VARA was designed to prevent. The district court denied Kerson’s motion for a preliminary injunction, finding that the plaintiff had provided no evidence to support the contention that the work would deteriorate behind the panels, and that the statutory language gave no support to the idea that concealing a work of art, as opposed to physically altering it, was a modification of that work.

Six months later, the court granted the law school’s motion for summary judgment. Looking to the plain language meaning of “modification” and “destruction” and as reflected in case law, the court held that a modification meant an incremental change to the physical object itself and could not encompass a concealment of it. That interpretation was supported by the fact that the statute excluded from liability any modification “which is the result of conservation, or of the public presentation, including lighting and placement.” If the statute permitted a work to be removed from display, it permitted a work to be concealed, as neither action harmed the artist’s reputation by exposing a work to the public that was not as the artist created it.

The court acknowledged that the artist had presented expert opinion that the panels may suffer harm over time from the environmental conditions behind the proposed panels. But the experts had no way to be sure, and even if they were right, a further exception to VARA excluded from liability any modification “which is a result of the passage of time or the inherent nature of the materials.” The court cited Flack v. Friends of Queen Catherine Inc., where the exception was applied to the outdoor storage of a monumental clay statue that suffered rain damage.

Finally, the court rejected the argument that the concealment of the murals constituted their “destruction.” Again, the plain meaning of the word “destruction” in the context of a mural implies that it has been irrevocably and utterly changed physically, which neither its concealment from view nor potential incremental damage by environmental conditions would support. The court cited to an early New York VARA case that held that permanently concealing an exterior mural from view by development on a neighboring plot was not a destruction under VARA.

For those who represent artists or care about the ongoing integrity of VARA, the district court’s endorsement of a permanent covering to the commissioned murals was discouraging, albeit supportable from a legal standpoint, given the parties’ purist positions on the work’s removal. The plaintiff’s determination to appeal to the Second Circuit was particularly distressing, as an affirmance of the district court decision at the appellate level would be binding precedent in all lower courts under its jurisdiction and, given the Second Circuit’s reputation in these matters, highly persuasive in other circuits too. While the artist’s position is understandable, especially given the criticism leveled at him by some for his allegedly offensive treatment of the mural’s subject matter, no one wants to see the permanent walling up of a work of art in this way, especially if it were to become a go-to solution for others to avoid the statutory protections of VARA.

After a messy and confused oral argument, the Second Circuit issued its decision in late August 2023 affirming summary judgment. It rested its opinion on a close reading of the statutory text and generally rejected any analysis based on Kerson’s argument that the result of the lower court’s decision was contrary to the purpose and spirit of VARA. The panel stressed that Congress intended VARA to be a careful balance of the competing interests of artist and owner, and thus it was loath to interpret the statute any more expansively than the plain language clearly supported.

The court agreed that concealing the murals was not a “destruction” of them, because they continued to exist intact. Nor was it a “modification,” whose plain meaning implied a change to a portion of the work itself, rather than concealing or moving the whole thing. Moreover, the syntax of the relevant phrase required that actionable “other modification” must be of the same type as the preceding “distortion” and “mutilation”—in other words, where the work remains visible but is no longer perceived as intended. The court rejected Kerson’s textual analysis based on the meaning of “modification” in the context of the public presentation exception; for the Second Circuit, it was not that the conservation or public presentation of a work could be a “modification,” but only that the resultant physical damage to a work might be, albeit not actionable unless the result of gross negligence.

The court also declined to follow Kerson in his contention that damage to honor and reputation help define what constitutes a modification; rather, “not all modifications are actionable under VARA, just the subset that prejudices an artist’s honor or reputation.” The panel cited to the Büchel case, where the First Circuit rejected a VARA claim on the ground that “partially covering an unfinished art installation in a museum with tarpaulins did not constitute an intentional distortion or modification.” Finally, the court rejected any relevance of the absence of a waiver under the building exception in VARA because the murals remained untouched and incorporated into the building.

The Second Circuit finally addressed Kerson’s contention that the concealment of the murals as proposed would constitute the murals’ modification or potential destruction because of the toxic environmental conditions in the resulting cavity. It did not review the district court’s conclusion that the projected harm fell under the statute’s exception for modifications related to the passage of time, relying instead on an extension of its analysis that this was simply not a modification or destruction of the murals. The law school’s actions did not evidence an intent to physically harm the murals as would be required by the statute; on the contrary, it appeared to go out of its way to avoid such harm. Nor was the testimony of Kerson’s expert enough to support the contention that the concealment as planned would destroy the works—“the mere possibility that the Murals face damage of an unknown extent at some unspecified point in the future does not give rise to a claim for destruction under VARA.”

Again, the Second Circuit showed no desire to weigh in on the broader policy factors behind VARA or the impact of its decision on other rights. In a single sentence footnote, the court declined to address the law school’s argument that compelling it to continue to show the works against its will would have First Amendment implications. In oral argument, the court had been sympathetic to Kerson—this was, after all, the same court that had so resoundingly found for the artists in the 5Pointz VARA case only three years before. Indeed, the panel was critical of the hard line taken by the law school. But ultimately, the decision did not even acknowledge that bad facts make bad law, with unfortunate implications on artist commissions going forward, nor that the result could act as a tragic template to subvert the twin aims of VARA—to protect the honor and reputation of artists and to preserve significant art for the public. It merely suggested, somewhat lamely, that the parties might yet find some accommodation to “extricate” the murals from their location.

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    Christopher J. Robinson

    Rottenberg Lipman Rich P.C.

    Christopher J. Robinson is of counsel at Rottenberg Lipman Rich P.C. in New York, where he focuses his practice on art and intellectual property law.