March 22, 2009

VARA Lawsuit Filed over Destruction of Burning Man Art Car

The creators of Burning Man art car “La Contessa” have filed a lawsuit under the Visual Artists’ Rights Act (one of my favorite corners of Title 17) against the Nevada farmer who torched the car.

It had been left on the rancher’s land for several years due to a broken axle, with the permission of one of the land’s tenants. But that turns out not to matter — the claim is under the VARA, which would preempt state laws about what you can and can’t do with things left on your property. 

The relevant section of the statute, 17 U.S.C. 106A(a)(3)(B), states in pertinent part:

Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art . . . subject to the limitations set forth in section 113 (d), shall have the rightsubject to the limitations set forth in section 113 (d), shall have the right . . . to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

So we’re left with two questions: (1) is La Contessa “a work of visual art” under the statutory definition of that term, and (2) is La Contessa “a work of recognized stature”?

The first question is pretty straightforward. “Work of visual art” is a defined term in Section 101, and the definition includes “a painting, drawing, print, or sculpture, existing in a single copy.”  There’s only one Contessa, and I think it can fairly be termed a “sculpture,” so that requirement is satisfied.

But is it “a work of recognized stature”? There’s no statutory definition for that term. In Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303 (S.D.N.Y. 1994), the court held that the term called for a (rather obvious) two-pronged analysis: Does the work have “stature” (i.e., is it viewed as being meritorious)? If so, is that stature “recognized” (i.e., is there evidence that some relevant group of people viewed it as being meritorious)?  Good facts include the broad knowledge and admiration of La Contessa in the Burning Man art community.  The key bad fact: if it was a work of such recognized stature, why didn’t anybody go fix the axle and retrieve it in the several years it was sitting there?

There’s also a strong sense of “What was I supposed to do with it?” emanating from the land owner.  The statute’s prohibition on destruction, the land owner would argue, is premised on the idea that someone who owns a work of recognized stature won’t just leave it lying around.

This doesn’t strike me as an issue amenable to determination on summary judgment, so I think if this is fully litigated the case ends up being determined by a battle of the experts before the jury on the question of whether La Contessa was a “work of recognized stature.”

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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