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180 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 35:167 ing in a single copy, or produced in limited edition of two hundred copies or fewer. 82 Expressly excluded from VARA’s definition of a “work of visual art” are objects such as maps, posters, books, merchandising or advertising items, and works made for hire. 83 Additionally, if an artist wishes to prevent a modification, distortion, or mutilation of a work, the artist must show that it would be “prejudicial to his or her honor or reputation.” 84 If an artist seeks to prevent destruction of a piece of his or her work, the artist must show that it is a “work of recognized stature.” 85 VARA contains several exceptions that play prominent roles in the conflicts between site-specific artists and property owners. Congress recognized several common practices of the artistic community and inserted exceptions to address the nonstatic existence of visual art 86 —outside sculptures may erode due to the elements or materials used; conservation efforts may be necessary to counteract the aging 82. Id. 83. Id. 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. A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. Id. 84. Id. § 106A(a)(3)(A). 85. Id. § 106A(a)(3)(B). 86. H.R. REP. NO. 101-514, at 17 (1990).
2007] OFF OF THE PEDESTAL AND INTO THE FIRE 181 process of a painting; artwork may need to be moved to accommodate new works or to better display the piece. For site-specific art, the most important of these exceptions is the “public presentation” exception: (c) Exceptions.— (1) The modification of a work of visual art which is a result of the passage of time or the inherent nature of the materials is not a distortion, mutilation, or other modification described in subsection (a)(3)(A). (2) The modification of a work of visual art which is the result of conservation, or of the public presentation, including lighting and placement, of the work is not a destruction, distortion, mutilation, or other modification described in subsection (a)(3) unless the modification is caused by gross negligence. 87 This exception allows for the modification of a work of visual art, including changes to the lighting and placement of the work. A congressional committee report discussed the application of this exception: Under [the exception], galleries and museums continue to have normal discretion to light, frame, and place works of art. However, conduct that goes beyond presentation of a work to physical modification of it is actionable. For example, Representative Markey described the actions of two Australian entrepreneurs who cut Picasso’s “Trois Femmes” into hundreds of pieces and sold them as “original Picasso pieces.” This is clearly not a presentation question. On the other hand, the Committee believes that the presentation exclusion would operate to protect a Canadian shopping center that temporarily bedecked a sculpture of geese in flight with ribbons at Christmas time. 88 Likewise, Congress foresaw problems involving artwork attached to or physically incorporated into buildings and included a “building exception.” 89 Because of real property interests and the legal conflicts 87. 17 U.S.C. § 106A(c). 88. H.R. REP. NO. 101-514, at 17. 89. 17 U.S.C. § 113(d) (2000). The “building exception” states: (d)(1) In a case in which— (A) a work of visual art has been incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work as described in section 106A(a)(3), and (B) the author consented to the installation of the work in the building either before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, or in a written instrument executed on or after such effective date that is signed by the owner of the building and the author and that specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal, then the rights conferred by paragraphs (2) and (3) of section 106A(a) shall not apply.
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