Picasso-lypse Now

Recently, a woman fell while at the Met in New York and did a bit of damage to a Picasso painting.1 While the painting will apparently be salvageable, it did make something pop into my head.

Several years ago, Congress enacted the only attempt by the United States to grant any kind of moral rights2 to copyright creators.3 The Visual Artist's Rights Act4 provides a measure of comfort to the "creative types" who are concerned about a buyer "repurposing" or destroying their work.5

Now Picasso has been dead since 1973, so applying the standard "life-plus"6 formula, his works are still technically under copyright (assuming they're validly copyrighted in the U.S.). For that reason, and because a painting is one of the works considered "fine art" under VARA7 and therefore protectable, paintings such as Picasso's would be protected from mutlilation8 (which arguably this woman did when she thoughtlessly fell and mangled the painting).

All that aside (and I don't really think that estate of Picasso is going to or could sue this woman), I find VARA interesting because the United States, aside from this one section of the U.S. Code, does not recognize moral rights, in direct violation of our international obligations.9 I'm all for protected an artist's right and I can't figure out for the life of me why this concept has not established itself more firmly in the United States. May it's our mercenary attitude toward economics and business transactions, that once you've sold your "thing" you can't retain any rights to it. Perhaps we (as a country) don't like artists. They do smell kind of bad (like my cat's breath). For whatever reason, VARA seems to fall short mostly because it is fairly limited in scope.10 It requires the work be "fine art" under section 101,11 and that definition along with the limited application of VARA12 make it essentially a toothless statute.

1: Picasso Painting Ripped by New York Woman's Fall, BBC.com, http://news.bbc.co.uk/2/hi/americas/8478347.stm (last visited Jan. 30, 2010). The tear was approximately 6 inches long to a corner of the painting. Id.
2: See Lee v. A.R.T. Co., 125 F.3d 580, 582 (7th Cir. 1997) (defining moral rights as a way where "artists may block any modification of their works of which they disapprove.").
3: Pub. L. No. 101-650, § 610, 104 Stat. 5128 (1990).
4: 17 U.S.C. § 106A (2006).
5: Id. § 106A(a).
6: See Eldred v. Ashcroft, 537 U.S. 186, 206 (2003).
7: 17 U.S.C. §§ 101, 106A(a).
8: Id. § 106A(a)(2).
9: Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, Sept. 9, 1886, S. Treaty Doc. No. 99-27, 1161 U.N.T.S. 3, available at http://www.wipo.int/export/sites/www/treaties/en/ip/berne/pdf/trtdocs_ wo001.pdf; 17 U.S.C. § 104(b)(1)-(2) (2006) (incorporating by reference international coverage under the Berne Convention subsequent to the United States' November 16, 1988 accession and March 1, 1989 implementation to the treaty).
10: See 17 U.S.C § 106A(c)(3).
11: Id. § 101. The statute states:

A “work of visual art” is--

(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

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include--

(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;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title.

12: Id. § 106(c)(3).

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