Phoenix Rising: An updated Visual Artist Rights Act could protect downtown artists

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The future of Augustine Kofie's mural on the Flowers building is under debate in the latest perceived clash between artists and developers in downtown Phoenix. (Nicole Neri/DD)
The future of Augustine Kofie’s mural on the Flowers building is under debate in the latest perceived clash between artists and developers in downtown Phoenix. (Nicole Neri/DD)

As debates over the future of Augustine Kofie’s mural on the western wall of the Flowers building at Fifth and Roosevelt streets continue, it is helpful to think of an often forgotten and underutilized strategy for artists — suing.

On Roosevelt Row hardly a month goes by without another perceived clash between the current art scene and future developments.

In the past year, the destruction of public art has been a particular sore spot, exemplified by the destruction of Lauren Lee’s Three Birds mural on GreenHAUS and its rebirth as Three Birds in Flight on the iLuminate Apartments building at Third and Roosevelt streets.

RELATED: Facing demolition, community members attempt to preserve GreenHAUS murals

In February, J.B. Snyder’s The Allery closed down as landowner Michael Elliott prepared to spruce the area up for a new renter.

And now, Chandler-based developer Desert Viking Development’s The Blocks of Roosevelt Row proposal has lead to suggestions by El Mac that his 2009 co-created mural be painted over, despite the stated efforts by Desert Viking to preserve it.

With a potential conflict between the wishes of a property owner and the artist, we may see the perfect opportunity to test out the Visual Artist Rights Act, a federal law designed to protect the moral rights of artists.

The VARA was enacted in 1990 to make up for a gap in copyright law to protect visual artists, as works of fine art derive most of their value from the original piece and the reputation of the artist, unlike other products.

Before the passage of the VARA, the United States did not provide any explicit moral rights to visual artists, and they had to creatively use First Amendment and copyright law to protect their works.

What VARA does is recognize that visual artists have moral rights to two key things: attribution and integrity of their work. In simple terms, the law allows for artists to be credited for their work, not have their name attached to others’ work, and disassociate themselves from the work if there is subsequent distortion, mutilation, or modification of the work prejudicial to the artist’s honor or reputation.

Unfortunately, the VARA is a limited piece of legislation both by design and by practice. The act only extends its protections to single or numbered limited editions of 200 or less of paintings, sculptures, drawings, prints and still photographs produced for exhibition.

Other works of art may not be covered. Additionally, the grounds to sue over a loss of integrity are severely limited, with exceptions carved out for the natural decay of a work and disregarding site-specific aspects of a work.

Furthermore, property rights still remain dominant in issues of conflict. VARA requires that owners give 90 days’ notice to the artist in order to allow them to remove the work.

Practically, additional issues stand in the way of artists using the power of their rights. Commissions can be drafted to have artists sign off on their rights to the work, and taking legal action against a patron may harm future business for an artist.

Also, actually challenging a property owner in court can be tough and expensive with the need for legal assistance, which artists may not be able to afford.

But the VARA is a powerful platform for the preservation of arts in downtown Phoenix throughout its development and evolution.

With a plethora of lawyers in downtown Phoenix who could provide pro bono service, a new law school at ASU churning out law students and dedicated organizations such as the Roosevelt Row Merchants Association and Evans Churchill Community Association discussing the preservation of the arts district, the resources are available to establish systematic protections for public arts if the will is there.

Contact the columnist at raboyd2@asu.edu.

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