In general, someone who purchases a copyrighted work has the right to destroy it. If you buy a copyrighted book, you are free to throw it away, or to give it away to someone else. However, the Visual Artists Rights Act is a federal law that provides some additional protections for certain artworks. Its scope is extremely limited. To fall within the Act, the work must be a painting, drawing, print, photograph, or sculpture that has only a single copy or that was released as a limited edition of 200 or fewer copies. Works released as a limited edition must be signed and consecutively numbered. If an artwork is reproduced in a publication, VARA rights still protect the original.
Many copyrighted works are made by employees for their employers, or are specifically commissioned by a certain person. These are classified as works made for hire, which means that the creator of the work does not have copyright ownership. Instead, the employer or the person who commissioned the work holds copyright ownership. VARA does not apply to works made for hire, with respect to either the artist or the person who commissioned the work.
The Right to Protection from Destruction
Works of art that are covered by VARA may not be destroyed, mutilated, distorted, or modified in a way that would undermine the reputation of the artist. Even a person who purchases this type of work for their collection does not have a right to destroy or modify it without the consent of the artist. VARA provides a right for the artist to sue if their work has been destroyed. They would need to prove that the destruction of the work harmed their reputation to receive damages.
There are some exceptions to VARA protections. This federal law was enacted on December 1, 1990, and it does not apply retroactively to works that were created before that date. VARA also does not apply if the artist agreed to waive their rights under the law, although the waiver must be in writing. For example, an artist might agree with a person who commissioned a mural from them that the client has the right to paint over the mural in the future if they choose. Finally, VARA does not apply to situations in which a work naturally decays over time or dissolves due to the materials used to create the work. In other words, the owner of the work does not have a duty to prevent the disappearance of a work made from ephemeral materials, such as ice or soft stone. The owner also is not responsible for protecting a work displayed outdoors from severe weather.
Protections under VARA last only during the life of the artist. This is because they are designed to protect the artist’s reputation. Since this concern is greatly reduced after they die, the owner of the work is free to destroy it at that stage without getting permission from the artist’s family or estate. This contrasts with the rights provided under the Copyright Act, which last for 70 years after the death of the copyright owner.