They Can’t Take that Away from Me: An Indemnification Solution to Unmerited VARA Claims

Marber, Sinclaire D.

This Note argues that market participants should be indemnified against legally baseless revocations of attribution by living artists. Noland justifies her disavowals under the Visual Artists Rights Act of 1990 (“VARA”), the American answer to the French concept of droit moral or moral rights.8 Moral rights provide artists with control over the integrity and attribution of their art even after it has been sold. In a narrow set of circumstances, VARA permits a living artist to disavow her works if they have been modified so extensively as to be prejudicial to the artist’s reputation (excepting changes caused by aging or conservation).9 But there is a dearth of case law defining terms like modification, prejudice, and reputation. Even among Noland’s disavowals there is variation: she revoked authorship of the aluminum print Cowboys Milking because she perceived wear on its corners, and of the wooden building façade Log Cabin because conservators allegedly rebuilt the entire piece without permission.10 Noland is one of relatively few artists to bring lawsuits under VARA, and research for this Note has uncovered no cases of an owner or other stakeholder suing an artist for improperly invoking VARA. Even if a party were to sue Noland for abusing VARA and successfully obtain an injunction forcing her to legally affirm authorship of a work, this would likely not remedy the market damage caused by her public disavowal. No matter the conclusion of a court, collectors are unlikely to invest millions of dollars in art unsupported by its creator. Unfortunately, moral rights law in the United States has not yet addressed this situation. This Note proposes that the indemnification solutions contained in the droit moral provide a possible solution to the problems that result when an artist disavows her art without legal cause.


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Columbia Journal of Law & the Arts

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April 20, 2018