Federal Court Denies VARA Protection for School Bus Transformed into Spanish Galleon
by Jerry Glover
November 15, 2016
The federal Visual Artists Rights Act, 17 U.S.C. Sec. 106(A) (commonly referred to as VARA), is part of the US Copyright Act, but it grants rights to certain types of art that go beyond traditional copyright protections. Basically, VARA protects what are known as an artist’s moral rights—the rights of integrity and attribution.
What are these rights? The right of integrity gives an artist the right to prevent any change to his/her work even if the artist has transferred title (either physical ownership of the work and/or copyright ownership of the work) to a third party. The change that can be prevented is that which would be prejudicial to his/her honor. The integrity right also prevents destruction of certain works that are of “recognized stature.” 17 U.S.C. Sec. 106A(a). The right of attribution requires that the artist be recognized by name as the creator of a work.
But VARA only applies to works of visual art. The Copyright Act defines works of visual art to include paintings, drawings, prints or sculpture but this definition specifically excludes from the statute’s protection “applied art” among other things.
The meaning of “applied art” was at the center of a recent case decided by the U.S. Court of Appeals for the Ninth Circuit. Cheffins v. Stewart, 825 F.3d 588 (9th Cir. 2016). In this case, the plaintiff took a used school bus and transformed it into a replica of a 16th century Spanish galleon. When completed it was 60 feet wide and 16 feet long with a mast over 50 feet tall. It was assembled and used at several Burning Man festivals. At the Festival people took rides on the galleon and at least two weddings were performed on its deck. Outside of Burning Man, the galleon was used for several things including being a part of a marching band performance and being the centerpiece of a children’s treasure hunt.
The galleon was stored by its owner on property owned by Burning Man festival. It was later stored on property owned by another person. After a series of ownership changes, the galleon was intentionally destroyed and the property owner had a scrap metal dealer remove the underlying school bus.
The plaintiff filed suit against the property owner alleging that the galleon was a work of visual art and that Grant’s destruction of the galleon was a violation of right of integrity protected by VARA. The property owner claimed the galleon was only applied art and not protected by VARA. A trial court jury found in favor of the property owner. The galleon owner appealed.
The appeals court noted that VARA does not define “work of visual art”. So the court looked to the remainder of the Copyright Act for that definition finding it in Section 101. Part of that definition excluded “applied art.” But “applied art” was not defined either. The court noted that courts have not had many opportunities to define “applied art.” One court defined it as two-and three-dimensional ornamentation or decoration that is affixed to otherwise utilitarian objects. See Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 19915). This same court later noted in another case that VARA does not protect a piece of utilitarian furniture, whether or not it could arguably be called a sculpture.
So the Ninth Circuit concluded that the focus of its inquiry should be on whether the object (the galleon) originally was, and continues to be, utilitarian in nature. Looking to the dictionary, the court noted that “applied art” was defined as employed in the decoration, design or execution of useful objects. The court noted that this definition suggests that applied art consists of an object with a utilitarian function that also has some artistic or aesthetic merit. It further noted that the Copyright Act’s list of things that are not works of visual art all have some utilitarian purpose (e.g., poster, map, diagram, model, merchandising item, etc.).
The court held that an objection is applied art “where the object initially served a utilitarian function and the object continues to serve such a function after the artist made embellishments or alterations to it.” The court added that this test could cover a situation where a functional object incorporates a decorative design in its initial formation and where the object it decorated after manufacture but continues to serve a practical purpose. Finally the court noted that applied art would not include a piece of art whose function is purely aesthetic or which is so transformed through the additional of artistic elements that its utilitarian function ceases.
The court explained that its test instructs courts to focus on an object’s continuing utility and not to ask ether that utility is somehow subservient to an artistic creation.
In this case the court noted that despite its elaborate decorations the galleon retained a largely practical function—transportation and serving as a stage for various events. Therefore the galleon was applied art and not protected by VARA.