As Good As New: Conserving Artwork and the Destruction of Moral Rights

36 Pages Posted: 10 Oct 2011

Date Written: May 5, 2011

Abstract

American legal protections afforded to artists with respect to their own works are so narrowly focused, and the statutory language so loosely defined, that it is not clear whether certain measures to conserve artworks may have the counterintuitive, adverse effects of depriving artists of the protections contemplated in the Visual Artists Rights Act of 1990 (VARA). This Note explores problem areas in the nexus of conserving works of art and VARA jurisprudence, arguing that the statute’s narrow scope confers inconsistent and unpredictable protections over artworks such that the ever-evolving best practices of arts professionals — those who work to conserve artworks or otherwise play a stewardship role for artists’ creations — may indiscriminately jeopardize artists’ rights in their works.

Part I presents an overview of VARA from a practical perspective, contrasting the expansive scope of visual artistic media over the last one hundred years with the restrictive designations of moral rights protections, demonstrating a philosophical gap between the statute and the artworks it was designed to protect. Part II addresses the statute’s case law, which casts a divide between VARA’s application and the practical scenarios that arts professionals encounter in preserving artworks, examining two cases: Flack v. Friends of Queen Catherine and Board of Managers of SoHo International Arts Condominium v. City of New York (Board IV). Lastly, Part III suggests an amendment to VARA in order to effectuate its purpose when applied to common conservation practices and puts forward a set of guidelines for arts professionals to reduce the likelihood that conserving an artwork could jeopardize artist rights in it or otherwise run afoul of VARA’s protections.

Keywords: artwork, art, conservation, conservator, Visual Artists Rights Act, VARA, moral rights

Suggested Citation

Davis, Nathan M., As Good As New: Conserving Artwork and the Destruction of Moral Rights (May 5, 2011). Cardozo Arts & Entertainment Law Journal, Vol. 29, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1941295

Nathan M. Davis (Contact Author)

Independent ( email )

No Address Available

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