Interview with Christopher Robinson, Esq. about VARA (The Visual Artists Rights Act)

August 7, 2023

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About Christopher J. Robinson

Christopher J. Robinson is of Counsel at Rottenberg Lipman Rich. P.C.

As a former art dealer, Christopher Robinson brings a comprehensive perspective to his practice of art law. From representing artists and dealers to museums and art foundations, Chris’s fifteen-year foundation as a dealer in the art industry has primed him to be an effective advocate for primary players in the art market. Originally specializing in the sale of contemporary art and Old Master works, Chris has since expanded his capabilities in representing art market participants by earning a Juris Doctor from the Fordham University School of Law in 2001. He also holds a B.A. and M.A. in Modern History from Oriel College at the University of Oxford. The extra-judicial experience Chris maintains as a former art dealer has shaped his clientele and ability to dissect complex legal issues in the art world.

Chris’s legal practice, however, is not constrained to fine art-related disputes. His experience in the world of visual culture also lends itself to his representation of corporations and non-profit organizations on copyright, trademark, and intellectual property matters. In the litigation arena, Chris has represented artists^[1] in consignment fraud cases, major auction houses in forgery cases, and museums in civil rights actions. In the transactional field, he possesses significant experience in forming artist foundations, purchasing art, and public sculpture initiatives. The breadth of Chris’s practice speaks for itself. In his current position of Counsel at Rottenberg, Lipman, and Rich, P.C., Chris’s ability to modulate his caseload allows him to maximize his effectiveness in advocating for each client.

The New York-based lawyer’s experience has well-positioned him for leadership in art and legal industries. Such influential roles include Board Member and Legal Counsel for the New Art Dealers Alliance (NADA) and formerly for Private Art Dealers Association (PADA). He is also a Chair of the Board of Trustees of the Sharon Historical Society.^[2] Chris’s unique experience in the art world contributes to his effectiveness in representing clients on art and intellectual property matters and investing in the art world as a whole.

The Center would like to thank Chris for taking the time to answer our questions, and his contributions to art law. This interview was edited and supplemented by Kameron-Jai Keel (NYLS, Class of 2024). 

THE INTERVIEW

Q. As a co-counsel at the appellate level on the seminal case Castillo v G&M Realty, on behalf of artists who created at 5pointz, what are a couple of things you believe all street artists and artists who make public art should remember?

C. Most owners of buildings and commissioning entities have learned their lesson and will now insist on a waiver of all moral rights as a condition in a commission agreement. If the artist is not able to change their mind, the artist can often claw back some of those provisions separately in the contract and should ask for them: for example, notice if the work is to be moved, changed or destroyed and the chance to take it back, the right to be consulted on any repairs or major cleaning, the right to have the artist’s name always associated with the work in person and also in any reproduction. And retain all copyright. Second, document everything, especially positive press, social media, any printed references that can be used to show “recognized stature” if necessary in a moral rights lawsuit.

Q. Banksy, a popular street artist, has been behind many political showcases. One in particular that is widely known is the Girl with Balloon, which was shredded at a Sotheby’s auction at Banksy’s command. Some believe it was a sentiment against the commercialization of art, and the idea that Sotheby’s had no right to sell Banksy’s piece in the first place. Banksy, like other street artists, is an unknown creator, who can claim ownership over their public works?

C. Banksy, whoever it is, is the only one who can claim copyright in those works. As for the physical works, assuming they were not created with the permission of the wall or building owner, then ownership of the actual painting should lie with that wall or building owner, who has the right to remove and sell it. One hopes, however, that they will respect the political and site specific aspect of the work and leave it alone as much as possible.

Q. Visual Art Rights Act (VARA) allows for artists to possess moral rights over their art even if the artist technically does not possess title. Will moral rights have any influence in a court should a question of ownership and or destruction arise?

C. The whole purpose of VARA is to protect against the mutilation and destruction of artwork, so of course it will be central in any lawsuit on the work’s destruction, assuming the artist has not waived their rights in writing and the work post-dates 1990, the effective date of the statute. VARA has nothing really to say about ownership.

Q. How can street artist’s protect their work from unauthorized selling, copying, etc. while still maintaining anonymity?

C. Only the artist has VARA rights. They cannot be assigned and a work for hire has no VARA rights. On the other hand, an artist has copyright in their works at the moment of creation so they can always seek to enforce those rights through a cease and desist using an attorney. If it comes to litigation, however, a copyright registration is a jurisdictional necessity and though one can register a copyright under a pseudonym or anonymously, the artist as plaintiff would have to show they owned the registered copyright.

Q. Visual Art Rights Act (VARA) is now 33 years old. Do you believe that the legislation needs updating and if so in what respects/areas?

C. The copyright office held public hearings on this not long ago. The New York City Bar Art Law Committee, of which I am a member, suggested that Congress put back in the statute what had been in an early draft, i.e. make a list of suggested sources for proving recognized stature and that the sources should be tailored to the type of art in question. For example, for a public sculpture, the views of the public that interacts with it are highly relevant; for a major work in a museum it’s more published academic and critical sources.

Q. Are there any more recent VARA cases that you have been involved in?

C. I was involved behind the scenes in a case brought in California involving an art work on the southern US border^[3] made from a perishable substance that substantially collapsed and rotted and was bulldozed under before what was left could be retrieved by the artist. Wisely for all concerned it settled.

Q. VARA centers around whether or not the artist was an employee or an independent contractor to determine rights and ownership of a work. When art is created and given as a gift, who then has rights and ownership over said piece?

C. Moral rights only lie with the artist, no one else can assert moral rights, whether they bought the work, were gifted it, were an heir of the artist, or any combination thereof.

Q. Can you tell us about some commissions you have facilitated for public art?

C. I did the contract for the developer Related for the Vessel^[4] by Thomas Heatherwick at Hudson Yards, New York, as well as the multi-part piece by Jaume Plensa^[5] which is in the lobby of an office building nearby. I also did the contract for a monumental bronze sculpture by Sassona Norton^[6] which now sits at the entrance to Monaco harbor and which will be repeated in a number of other locations worldwide.

Q. How do commissions for public art differ from those for private collectors?

C. That’s a very big subject. I have an article coming out soon in the New York State Bar Association IP magazine “Landslide” which goes into a lot of that.

Q. With the introduction of AI generated art that cannot technically be protected by copyright laws, how can one establish ownership over an AI piece that they inspired or instructed an AI to create?

C. The copyright office has made it clear that works made with the assistance of AI can to a degree be registered and protected by copyright. It depends how much human intervention manipulated the AI generated image. If the work is entirely AI generated, without any human intervention except for the initial prompts, I don’t see any protection under current law.

Q.Do you believe AI will be the source of copyright and trademark issues in the future due to easy reproduction of pieces already in existence?

C. Of course. We are only just seeing the beginning.

The Center for Art Law would like to extend a special thank you to Christopher Robinson for volunteering his time to speak with our interns and conduct this interview. This interview was conducted by Kameron-Jai Keel (NYLS 2024), previous intern for the Center for Art Law.

Additional Readings:

Articles

• When Art Meets Building: A Primer on the Visual Artists Rights Act: https://www.olshanlaw.com/f-when-art-meets-building.html
• Waiver of Moral Rights in Visual Artworks: https://www.copyright.gov/reports/exsum.html
• Site-Specific Works and the Visual Artists Rights Act Modeling a More Flexible Approach on the Building Exception:https://openyls.law.yale.edu/bitstream/handle/20.500.13051/17823/Burkan_Prize___Helen_Vera_VARA_Site_Specific_Art111.pdf?sequence=2&isAllowed=y
• Art Versus Commerce: A Look at the Visual Artists Rights Act: http://www.michbar.org/file/barjournal/article/documents/pdf4article3548.pdf
• The “Recognized Stature” Standard in the Visual Artists Rights Act Rights Act: https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=3644&context=flr
• From Monty Python to Leona Hemsley: A Guide to the Visual Artists Rights Act: http://web.archive.org/web/20030827213232/http:/arts.endow.gov/artforms/manage/VARA.html
• Murals and VARA Rights: http://www.pdxstreetart.org/articles-all/2016/11/24/murals-art-copyright-and-vara
• VARA: How Artists Can Protect Their Rights: https://www.l4sb.com/blog/vara-and-artist-control/
• Visual Artists Rights Act Protects Even Transient Art in the Absence of an Explicit Waiver: https://www.jdsupra.com/legalnews/visual-artists-rights-act-protects-even-96099/

Videos

1. VARA & MORAL RIGHTS IN VISUAL ART: https://vlany.org/courses/vara-moral-rights-in-visual-art/
2. Including Landmark case Castillo v G&M Realty regarding the demolition of the 5pointz mural in Long Island, applying The Visual Artists Rights Act (VARA) of 1990. Castillo v G&M Realty L.P 950 F.3d 155, 166 (2020). ↑
3. Community museum and society in Sharon, Connecticut, to share and preserve the history and culture of Sharon and surrounding area. ↑
4. Cheese Wall Project by Los Angeles Artist Cosimo Callavaro building a wall out of blocks of cheese as a notion to mimic the artists’ opinion of Former President Donald Trump’s proposal to “Build a Wall” at the Southern California Border. ↑
5. “Vessel”, by Thomas Heatherwick opened to the public in 2019. ↑
6. “Voices” by Jaume Plensa, an eleven-part steel sculpture in the lobby of 30 Hudson Yards. ↑
7. “Et Purus”, latin for “And Clean” by Sassona Norton, a bronze hand sculpture created as a tribute to Swedish Professor Arne Ljungqvist, pointing upward to symbolize victory and the fight against doping in sports. ↑