Previously posted on SSRN.

Abstract

Murals, sculpture, and other works of visual art have been parts of buildings, monuments and other structures for centuries, but copyright infringement litigation in the federal courts between artists, architects, photographers, and building owners is a relatively recent phenomenon. The outcome of these lawsuits has an impact on the public seeing works of visual art; experiencing works of visual art on buildings, monuments, and structures; and, looking at photographs of visual art on or in those architectural works. This article focuses on how the Copyright Act’s protection of artists’ rights in their works of visual art on buildings under the Visual Artists Rights Act (VARA) relates to the Copyright Act’s protection of architectural works under the Architectural Works Copyright Protection Act (AWCPA). VARA and the AWCPA were enacted in 1990 as amendments to the Copyright Act. There are several questions about the relationship between VARA, the AWCPA, and the rest of the Copyright Act. One concerns a visual artist’s rights against unauthorized photographs or other pictorial representations of a building that incorporates the artist’s work, such as a mural or sculptural work, when the artist’s work is visible in the photograph or pictorial representation. Another question concerns the visual artist’s rights in a work incorporated in a building when the owner of the building wants to remodel or demolish the building. Relatively recent litigation involving photographs of murals on buildings and sketches of floor plans, both posted on websites, and the whitewashing of highly acclaimed street art sprayed on a dilapidated warehouse, has required federal courts to interpret and apply provisions in VARA, the AWCPA, and the Copyright Act. This article recommends a way to interpret several provisions in these statutes in order to accommodate the rights and interests of artists, architects, photographers, building owners, and the public. It encourages courts to interpret and apply the pictorial representations exception in section 120(a) of the AWCPA to reach only works of visual art that are integral to the design of the architectural work, and not to pictorial, graphic, or sculptural elements that are conceptually separable from the architectural work, or are not visible from a public place. Section 120(b) of the AWCPA, dealing with a building owner’s right to alter or tear down a building embodying a copyrightable architectural work, should be interpreted the same way. This accommodates the rights of visual artists under VARA and the Copyright Act with the rights of building owners, architects, photographers and the public under the AWCPA and the Copyright Act.

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