REAL ESTATE ALERT: Artists’ Rights In Condominium Projects

    View Authors 28 September 2007

    Artists’ Rights In Condominium Projects
    By Deborah Ryan and Rachel Feiertag

    The new demand for high-end condominiums with first-rate amenities has led developers to seek new ways to entice clients with discerning tastes, from glamorous spas to cutting-edge artwork by notable artists. These public displays of artwork, while adding both financial and aesthetic value, do carry some risks to developers because the artists still retain federal rights in their work, and these rights can affect the use of the building. A recent federal law surpasses the traditional scope of copyright law and now protects the integrity of the artists’ work, as well. Congress felt that because artists put so much of themselves into their work, they now have a moral right to protect its integrity. In determining whether art is protected, the first question is whether something is a work of visual art. The statute defines a work of visual art as a “painting, drawing, or sculpture,” which includesoriginals and limited edition copies.1 The artwork does not qualify as a work of visual art if it was done for hire, and so the protections granted to artists will not apply if the artwork was commissioned from the artist.

    The most basic right that this law grants to artists is the right to “prevent any intentional distortion, mutilation, or other modification of that work.”2  This modification must be prejudicial to the artist’s honor or reputation and does not include changes that might occur as a result of “the passage of time” or the “inherent nature of the materials.” In addition to protecting their work, artists also have the right to claim authorship. This means that the artist may demand that his name be used in conjunction with the work, especially if it is publicly displayed. Likewise, an artist can prevent the use of her name on a work she did not create, as well preventing the use of her name on work that has been distorted, mutilated, or modified to such extent that it would be prejudicial to her honor or reputation.

    In addition to artwork that is merely hung or displayed in a building, certain rules apply when the artwork is incorporated or attached to the building. In those cases, if the artwork cannot be removed from the building without damaging the piece, then the artist’s integrity right does not apply so long as the artist consented to the installation. The consent requirements are very specific, such as requiring a written document, signed by both the owner of the building and the artist, specifying the risks associated with installation. However, if the artwork could have been removed from the building without damage, yet damage did occur, the artist’s integrity right remains intact. There are a variety of notice requirements that come into play when the artwork is installed in the building or attached to it, and all of these must be followed.

    When contemplating displaying or installing artwork in a building, the use of the building and the artwork must be taken into account so as not to violate any of the artists’ rights and incur liability. Additionally, depending on the use and display, certain consents or waivers should be signed so as to protect the owner of the artwork, whether the owner is the developer or the Homeowner’s Association. All of these measures can be taken, but without doing so, condominium projects and developers open themselves up to unnecessary risk.

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    1 Limited edition typically means 200 or fewer, but the requirements differ depending on the form of the artwork. For example, for paintings, it is required that the 200 copies (or less) are signed and consecutively numbered.

    2 17 U.S.C. § 106A(a)(3)(A).

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    This Real Estate Alert provides only general information and should not be relied upon as legal advice.