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Posted on Techdirt - 18 August 2017 @ 11:55am

Because Of Course There Are Copyright Implications With Confederacy Monuments

from the copyright-makes-a-mess-of-everything-dept dept

There's no issue of public interest that copyright law cannot make worse. So let me ruin your day by pointing out there's a copyright angle to the monument controversy: the Visual Artists Rights Act (VARA), a 1990 addition to the copyright statute that allows certain artists to control what happens to their art long after they've created it and no longer own it. Techdirt has written about it a few times, and it was thrust into the spotlight this year during the controversy over the Fearless Girl statue.

Now, VARA may not be specifically applicable to the current controversy. For instance, it's possible that at least some of the Confederacy monuments in question are too old to be subject to VARA's reach, or, if not, that all the i's were dotted on the paperwork necessary to avoid it. (It’s also possible that neither is the case — VARA may still apply, and artists behind some of the monuments might try to block their removal.) But it would be naïve to believe that we'll never ever have monument controversies again. The one thing VARA gets right is an acknowledgement of the power of public art to be reflective and provocative. But how things are reflective and provocative to a society can change over time as the society evolves. As we see now, figuring out how to handle these changes can be difficult, but at least people in the community can make the choice, hard though it may sometimes be, about what art they want in their midst. VARA, however, takes away that discretion by giving it to someone else who can trump it (so to speak).

Of course, as with any law, the details matter: what art was it, whose art was it, where was it, who paid for it, when was it created, who created it, and is whoever created it dead yet… all these questions matter in any situation dealing with the removal of a public art installation because they affect whether and how VARA actually applies. But to some extent the details don't matter. While in some respects VARA is currently relatively limited, we know from experience that limited monopolies in the copyright space rarely stay so limited. What matters is that we created a law that is expressly designed in its effect to undermine the ability of a community with art in its midst to decide whether it wants to continue to have that art in its midst, and thought that was a good idea. Given the power of art to be a vehicle of expression, even political expression or outright propaganda, allowing any law to etch that expression in stone (as it were) is something we should really rethink.

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