From its inception, VLA has played an important role as an advocate on behalf of the arts community in different ways, ranging from participation in litigation, making public statements about matters of interest to the arts community, and making recommendations about pending legislation. These are some of the areas that VLA believes are of paramount importance to artists.
Volunteer Lawyers for the Arts files a brief amicus curiae in support of artist Chapman Kelley
On February 15, 2011, the United States Court of Appeals for the Seventh Circuit held that artist Chapman Kelley's sculpture, Wildflower Works, was "neither 'authored' nor 'fixed' in the senses required for copyright." Kelley v. Chi. Park Dist., 635 F.3d 290, 304 (7th Cir. 2011). Telegraphing its conclusion that Mr. Kelley's work was not a work of art, the Seventh Circuit summed up its reasoning as follows: "Simply put, gardens are planted and cultivated, not authored. A garden's constituent elements are alive and inherently changeable, not fixed." The consequence of the Seventh Circuit's decision concerning authorship and fixation is that a work of art made from living materials is automatically disqualified from copyright protection because the use of living materials in art comes from nature and because it has the potential for change.
On July 18, 2011, Chapman Kelley, represented by Kirkland & Ellis LLP, filed a petition with the Supreme Court of the United States requesting review of the Seventh Circuit's decision which also denied Kelley's sculpture in Grant Park protection under the Visual Artists Rights Act of 1990.
Wildflower Works, Chapman Kelley. 1984-2004
On August 24, 2011, Volunteer Lawyers for the Arts, along with artists Blane De St. Croix, Thomas Lawson, and Molly Dilworth, and in collaboration with the Arts & Business Council of Greater Boston, Inc., filed a brief amicus curiae in support of Chapman Kelley's petition for a Writ of Certiorari to the Supreme Court of the United States.
Volunteer Lawyers for the Arts believes that the incorrect decision of the Seventh Circuit, if allowed to stand, will challenge and harm the ability to advise and educate artists in the area of copyright law, especially with regard to works of art incorporating living materials and other innovative materials. Whether a given artwork is granted copyright protection significantly impacts an individual artist's livelihood and ability to contribute to the creative economy as a whole. Copyright law as written and as applied is capable of protecting new developments in art, whether such developments take the form of breaking new ground in medium or in message. Denying copyright protection to works of art involving living materials not only performs a disservice to individual innovative artists, but acts contrary to years of case law and violates the constitutional principle of promoting the useful arts.
If the Seventh Circuit's decision is permitted to stand, it will significantly hinder future artistic and intellectual advancement in both nascent artistic disciplines such as biological art, and in traditional art forms that use natural materials. It is imperative that the Supreme Court of the United States reverse the Seventh Circuit's decision and provide the requisite guidance to the lower courts so that the Copyright Act continues to protect original authorship in keeping with its constitutional purpose.
To read VLA's amicus brief please download the PDF here.
Visual Artists Rights Act
Massachusetts Museum of Contemporary Art Foundation, Inc. v. Büchel, 565 F. Supp. 245, 259, 260 (D. Mass.2008) - On May 21, 2007, the Massachusetts Museum of Contemporary Art (“Mass MoCA”) brought a lawsuit against Swiss artist Christoph Büchel seeking a court order authorizing Mass MoCA to exhibit Mr. Büchel’s unfinished installation without Mr. Büchel’s consent. On September 21, 2007, Judge Michael M. Ponsor, of the Federal District Court for Massachusetts, issued his ruling from the bench allowing Mass MoCA to continue to exhibit Mr. Büchel’s unfinished installation without his consent. Judge Ponsor’s ruling further noted that there would be no distortion to Mr. Büchel’s work or any damage to his reputation so long as Mass MoCA indicated that the unfinished work was not a product of Mr. Büchel. Mass MoCA subsequently announced that it had decided not to further exhibit Mr. Büchel’s unfinished installation.
Volunteer Lawyers for the Arts (“VLA”) decided to represent Mr. Büchel on this matter, as we strongly believe that the district court’s decision was incorrect, and additionally, that the decision would have negative consequences for other visual artists. VLA sought additional pro bono counsel for Mr. Büchel, and obtained the New York law firm of Wachtell, Rosen, Lipton & Katz as well as the Boston law firm of K & L Gates, LLP.
On January of 2010, the United States Court of Appeals for the First Circuit reversed the District Court's decision and held that the record permits the inference that Mass MoCA staff disregarded Mr. Büchel's instructions and intentionally modified his installation in a manner that he did not approve. The First Circuit also held that VARA does apply to unfinished works, and rejected Mass MoCA's contention that the unfinished installation might constitute a joint work between Büchel and Mass MoCA. The First Circuit remanded the case for further proceedings on Büchel’s remaining right-of-integrity claim under VARA and his public display claim under section 106 of the Copyright Act.
Free Speech and the First Amendment
Zieper v. Metzinger - VLA filed a brief in support of preventing government officials from chilling artists’ protected speech.
Brooklyn Institute of Arts and Sciences v. The City of New York and Rudolph W. Guiliani - VLA filed a brief in support of the Brooklyn Museum’s free speech rights.
Artist Taxation Issues
VLA supports federal legislation creating an Artists Fair Market Value Tax Deduction.
Protecting the Integrity of Artists' Works
Phillips v. Pembroke - VLA files brief in support of protecting the integrity of public works of art.
Other Legislative Issues
VLA opposes the current New York Publication Requirement for newly formed limited liability companies (LLCs).
VLA opposes H.R. 683, the Trademark Dilution Revision Act