RIGHTS OF ARTISTS – Carter v. Helmsley-Spear, Inc. (1996)
US Court of Appeals for 2^nd Circuit
71 F.3d 77, cert. denied, 517 U.S. 1208
Author: ERL

Plaintiffs, Appellee= artists

Defendants, Appellants= Helmsley-Spear, managing agent

Procedural History: P filed suit under Visual Artists Rights Act of 1990 to enjoin defendants from removing artwork they had created in the lobby of a building.   Trial court granted injunction and dismissed all other claims of both P and D.

Facts: Plaintiffs had been contracted in a one year agreement by a previous managing agent of the building to install artwork in several areas of the building, including lobby.  Plaintiffs were to retain copyrights for their works.  Plaintiff and previous agent extended the one year contract twice. Under the contract, plaintiffs were assigned additional projects, received a bi-weekly paycheck, employee benefits, worked 40 hours per week, were furnished supplies by the other contracting party, and prevented from hiring paid assistants without other party’s consent.  On April of 3^rd contracted year, defendants took possession of property and D became new managing agent of the building.  D informed P that their services were no longer required and that the new owners intended to remove the artwork from the building.  P filed action for injunctive relief and tortious interference, and D filed a counterclaim for waste removal.  Trial court granted P’s motion for injunctive relief and dismissed all other claims made by P and D.

Claims of the Parties: Appellants claim the work does not qualify for injunctive relief under VARA because it was a work made for hire.  Appellees claim they were hired as independent contractors and thus, VARA does protect their artwork from destruction.

Issues: Does reasonable construal of the VARA qualify the artwork created by P for injunctive relief, preventing its destruction by D? >No.  Does VARA dictate that D cannot remove P’s artwork from the building?

Rule: VARA grants rights of attribution and integrity to works of visual art.  Excluded is any work made for hire.  Right of attribution includes rights of the artist to be recognized for his work, publish anonymously or with a pseudonym, to prevent the artists name from being attached to works created by others including distortions of his original work.  Right of integrity protects artwork from destruction, especially in cases where art is of ‘recognized stature,’ but is more ambiguous because it depends on what the jurisdiction stresses.  Stressing public interest makes it more difficult to obtain a right to destroy it; emphasizing artist’s personality less so.

Holding: The work does not qualify for injunctive relief under the VARA statute.

Reasoning: Trial court erred in finding that plaintiffs were hired as independent contractors.  The facts of the case provide sufficient evidence that the artwork created by the plaintiffs was created by employees within the scope of their employment.  (Blue facts above.)