For Art's Sake

I don't like gold.

I'm not talking about precious metals, investments, gilts, natural colours of Autumn, excessively ostentatious flakes  of soft metal in over-priced soups... but the colour in paint. I'm not keen on gold teeth or gold toilets, either.

However, I did purchase a fully furnished condo last week, and the previous owner loved gold. Very Auric. The gold cushions have zippers so can be stripped of the covers. Some of the gold wall decorations are obviously fair game to be taken down for a three minute squirt of chrome spray, but then there is a painting.

Am I allowed to over-daub the gold bits in it? Or must I store it?

I bought it. It is private, not public. It does not appear to be signed, but it does not appear to be a print. It is modern, so it is highly doubtful that it could be war-time loot. This brings me to the legal blogs about VARA. I doubt it (VARA) applies, but it is interesting, and it is copyright related.

Art Law blogger Nicholas O'Donnell seems to be an expert on all things Art.

https://blog.sullivanlaw.com/artlawreport/if-it-aint-broke-ninth-circuit-announces-curious-test-of-applied-art-under-vara#page=1

He says,

"a “work of visual art” is defined as:

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

The Copyright Act also defines, interestingly, what a work of visual art does not include (emphasis added):

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;..."

The case that the amazing Nicholas O' Donnell is discussing relates to a the Burning Man festival (that was in the news this week for being dramatically rained out, and before the delude, for the "climate" protestors who blocked the only road into/out of said festival, and who were dramatically removed by a local police officer.) However, the case in question is about a school bus that was creatively modified some years ago to look like a Spanish galleon, and -- I assume -- was not street legal owing to its size, and was therefore stored, with permission, on a nearby property.

Unfortunately, the willing host passed away, and the subsequent owner of the property upon which the land-galleon was stored did not honor the preceding owner's agreement, and demolished the work of alleged art. The artists sued.  It's a good story, and not mine to tell.

My painting is not a modified school bus, thank goodness. It is also not a a mural. 

Murals seem to be particularly tricky propositions for the owner of the wall on which they are ingrained (which is probably the mot juste for a mural, because I believe the technique for the mural involves paint becoming part of the fabric of the wall. Or maybe I am thinking of frescos.)

Legal blogger Vincent Li, PhD of McDermott Will & Emery writes a very interesting analysis of what happens when a mural in a public building becomes an inconvenience to the hosts, but the artist is offended by the concealment of his/her/their work.

https://www.ipupdate.com/2023/08/cover-up-isnt-covered-under-vara/#page=1

https://www.lexology.com/blogs/181

"The US Court of Appeals for the Second Circuit affirmed that the Visual Artists Rights Act of 1990 (VARA) does not prohibit covering an artist’s mural where there is no damage to the mural."

This is an interesting copyright-related saga, as told by Vincent Li, but the bottom line is (as I understand it) that, regardless of complaints that the artwork offended the local community served by the public building, the artist sued that his rights were violated because his art was prevented from offending people.

"Under the relevant part of VARA, the author of a “work of visual art” “shall have the right”:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) 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."

Under VARA, an additional brush stroke (among other things) would be a modification of a work of art. In the case of this mural, modifications do not include concealing the entire work behind a barrier.

So, it might seem that if the owners of the wall had changed the skin pigment of some of the depicted persons, that would have been an intentional modification and therefore a VARA violation. 

For me, that is a little worrying because I would like to overbrush the gold with silver or chrome. I probably shouldn't be blogging about this!!!!!

 All the best,

Rowena Cherry