In theory, works of art outlast their makers and many of the people who view them. But artists, art professionals and legal experts are increasingly divided over whether a decades-old US law meant to protect and preserve art has fallen so far behind the times that it is instead doing the opposite.
The limitations of the Visual Artists Rights Act of 1990 (Vara) resurfaced after a ruling this spring in a lawsuit over Mary Miss’s Greenwood Pond: Double Site, a Land art project installed at the Des Moines Art Center in Iowa in 1996. The work consists of a multi-level, interconnecting path system and a series of structures comprised of wood, steel, cement and granite that provide visitors with different ways to interact with the pond and surrounding grasslands. Greenwood Pond: Double Site was lauded upon its debut and, nearly 30 years later, Maxwell Anderson, the former Whitney Museum of American Art director, claimed that it “enjoys an importance and prominence in public art second to none in this country”.
But officials at the Des Moines Art Center claimed Miss’s piece began to deteriorate almost immediately after it opened. The paths became unsafe for visitors over the decades and were eventually closed to the public. Kelly Baum, the centre’s director, notified Miss in 2023 that the work had been irredeemably devastated by time and nature, and would thus be “decommissioned”—another way of saying demolished.
Vara prevents works of art of “recognised stature” from being razed by their owners without the artist’s consent
To try to prevent her work’s destruction, Miss filed a lawsuit in Iowa district court this April. Her argument rested on two pillars: first, a clause in the commission contract for Greenwood Pond: Double Site stating that “the Art Center shall reasonably assure that the Project is properly maintained and protected…and shall reasonably protect and maintain the Project against the ravages of time, vandalism and the elements”; and, second, Vara, which prevents works of art of “recognised stature” from being razed by their owners without the artist’s consent.
The lawsuit was half successful. Judge Stephen A. Locher ruled in May that “The Art Center cannot demolish the artwork without Miss’s consent (which she will not grant) because the Art Center promised in a contract not to do so”. Yet Judge Locher rejected the Vara claim based on his conclusion that the installation does not fit within the law’s definition of art as “a painting, drawing, print or sculpture”. He also found that the institution could not be compelled to repair or renovate the work if it estimated the costs of doing so to be exorbitant. The ruling, which a spokesperson for the centre called “a court-ordered stalemate”, will be subject to a future hearing on the fate of Miss’s work. Critics see it as an object lesson in Vara’s outmodedness.
What is the Visual Artists Rights Act of 1990?
Congress enacted Vara 34 years ago as an amendment to federal copyright law following the establishment of statutes protecting artists’ so-called moral rights in California, New York and a handful of other states. Separate from commercial rights, moral rights proceed from a more European concept of property ownership in which an artist’s stake in their output and its “integrity” extends beyond the point of sale. Vara and other laws protecting moral rights thus enable creators to sue when they believe their reputations have been damaged through the unauthorised alteration, distortion or destruction of their works by buyers.
But as Judge Locher notes in his ruling on Greenwood Pond: Double Site, lawmakers limited Vara’s protections to only a narrow set of artistic media—one that is increasingly out of step with contemporary artistic practice. For example, performance art, digital art and social practice art, to name just a few, would all automatically fall outside a narrow interpretation of Vara’s mandate.
The decisions in other 21st-century Vara cases further clarify the statute’s shortcomings. The artist Chapman Kelley lost a 2004 lawsuit over the removal of his Wildflower Works, a series of elliptical plantings in Chicago’s Grant Park, on the basis that Vara does not include flowers among its list of protected media. Around the same time, a Texas court ruled that Vara was inapplicable to a wrecked Oldsmobile turned into a cactus planter by the artists Scott Wade and John Furly; instead, the operative statute was the city of San Marcos’s ordinance on disposing of junked cars. The US Court of Appeals even ruled in 2006 that “the plain language” of Vara “does not apply to site-specific art at all” in a decision in favour of a Massachusetts real estate company that sought to relocate a set of sculptures commissioned from the artist David Phillips for South Boston’s Eastport Park.
Is Vara out of date?
For her part, Miss says she finds it “maddening” that Greenwood Pond: Double Site could be classified as anything but sculpture, the discipline in which she was formally trained. The legal definition of art, she adds, should cover “works of art that artists consider to be works of art”, making Vara’s categories inadequate to the task.
Other prominent art professionals agree. “In my view, Vara is out of date,” says Anderson, who now serves as the president of the Souls Grown Deep Foundation, which promotes the work of Black artists from the American South. “Like copyright law, it fails to account for myriad changes in how we define the fruits of creativity.”
Dean Nicyper, a New York-based lawyer and partner at the London-headquartered firm Withers Worldwide, agrees with Miss and Anderson. He says that Judge Locher’s ruling was “literally correct”, but that Vara fails to reflect the diversity of art as it has come to be understood since 1990. Although he says the optimal solution would be “to have Congress be more explicit in terms of what it has in mind” regarding artists’ moral rights, he also considers it unlikely that US lawmakers would take up the issue once again after having only grudgingly done so 34 years ago.
Overly narrow
Others do not fault Vara as much as its narrow reading by many courts. Judge Locher’s view that Greenwood Pond: Double Site does not constitute sculpture is the result of his “overly constrained application of that law in this case”, says Daniel H. Weiner, a partner in the New York law firm Hughes Hubbard & Reed. Although the court correctly acknowledged that Miss’s work is not traditional sculpture, Weiner says, “Vara is not by its terms limited to ‘traditional sculpture’”. He adds that “Robert Smithson’s Spiral Jetty, Christo’s Running Fence and Walter De Maria’s The Lightning Field are no less sculptures than Michelangelo’s David”.
The courts need to leave to the experts the question of what art is
Even one lawyer aligned with Miss’s legal counsel concurs that the flaws lie not in the law itself but in its interpreters. “I believe Vara is robust and does not need to be revised,” says Christine Steiner, a Los Angeles-based art lawyer who has been advising the members of Iowa Volunteer Lawyers for the Arts, which is representing Miss in her case against the centre. “The courts need to read the law more expansively, leaving to the experts the question of what art is—a question courts are not equipped to determine.”
Deterioration exclusion
Other lawyers contend that there is little reason to hope Vara’s imperfections can be remedied by individual judges broadening their concept of the law’s intent. Aside from the classification problem, the statute expressly prevents artists from suing in cases where the problematic changes to their work stem from deterioration caused by “the passage of time or the inherent nature of the materials”. Judith Wallace, a managing partner of the Manhattan law firm Carter Ledyard & Milburn, believes courts lack the latitude to read Vara expansively enough to eliminate this exception. “Owners are not required to maintain work in good condition, though they usually have a self-interested motive to do so,” she says.
Stepping back further, Nicyper adds that “there is always a risk when you ask judges to be expansive, because interpretations of the law can be all over the place, and some decisions you are going to hate”. Barring an unexpected (and unexpectedly progressive) rewrite of Vara by congressional legislators, even courts willing to make more sweeping readings of the law may leave contemporary artists, art professionals and art lovers unsatisfied with what it protects—and what it does not.