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The
Committee on Intellectual Property of the College Art
Association Session Paper
by Athena Tacha Given my 10-minute limit, I will simply outline three examples from my own experience that underscore the possible advantages and ensuing problems of VARA. In 1990, I won an international competition to do a
sculpture for a renovated little park at the center of Sarasota (the site
where the city had been founded 100 years earlier). I designed a winding
ramp-path of red granite, commemorating Sarasota’s history, with some 50
archival photos of important people, places and events, which I
sandblasted on top of the ramp [SLIDE]. My proposal, titled Memory
Path, was
“The University shall not destroy or alter the Sculpture... etc.” Unfortunately, my contract predated VARA, so a legal
fight with the University of South Florida and Edison Community
College would have been long and extremely expensive, particularly since
both my contractor and my engineer had died meanwhile -- therefore I had
no witnesses to prove that the damages were not due to structural faults.
I have learned from previous experience that no individual (especially a
non-affluent artist) can afford to sue an institution with unlimited legal
resources – let alone two! So, after much protest, I gave up the fight,
and Marianthe was demolished exactly two years ago.
To erase its memory, Edison College quickly planted on its site a group of
mature trees! But Marianthe hopefully will not be forgotten:
it is on the cover of the new book on my art [Dancing
in the Landscape, Washington, 2000 -- SLIDE], and has appeared
in many other publications (and I will try to re-build it elsewhere some
day). Theoretically, VARA can be retroactive, but even with a post-1990 contract properly worded, going to court can be drawn-out and exhausting, morally as well as financially. Besides the Carter case already mentioned, I know of only one artist who won a post-VARA lawsuit: In 1995, Jan Martin sued the City of Indianapolis for destroying one of his public sculptures, Symphony #1, and got almost full compensation plus legal expenses [$131,000]. (I do not have a slide of the work, but it was published in Art News of Jan. ‘99 [p. 45].) Audrey Flack also had a partial victory, because of VARA: she gained possession of her statue for Queens, after the City decided not to install it in the public site for which it was commissioned. However, other well-known artists, such as Nancy Holt, Judy Pfaff and Alan Sonfist, actually had their public works destroyed, perhaps with some settlement out of court. Meanwhile, local governments and corporations, always
wanting control, are now routinely putting in contracts that the artist
must waive his or her rights, as specified by VARA or comparable State
laws. I have been pushed to waive my VARA rights by at least two corporate
clients in the last decade -- but institutional clients are no better. I
will cite a final example from my own experience, since it happened here
in Philadelphia, and you can see the work yourselves, my park titled
Connections (it is located between 18th and 19th
Street, three blocks north of Logan Circle, next to the Philadelphia
Community College) [SLIDE]. In 1981 I won a national invitational competition, sponsored by the Philadelphia Redevelopment Authority, to design a city-block park for the new downtown development called Franklin Town. Because of a real estate slump in the mid-80s, the park did not become reality until a decade later. In September ‘91, I signed a contract with Franklin Town Corporation, which included a clause that “the Artist waives in favor of the Owner any rights she may have under the Pennsylvania Fine Arts Preservation Act (72 [sic] P.S., §§ 2201 et seq)”. This act does not allow anybody but the artist to alter, mutilate or destroy her work of art. In June '92, when Franklin Town Corporation had raised a $300,000. maintenance fund and officially donated my park to the City of Philadelphia, I was requested by the City lawyers to sign an additional waiver. It stated that Philadelphia’s “Fairmount Park Commission will use its best efforts to preserve and maintain the integrity of the design of the Franklin Town park” but “Athena Tacha ... does hereby waive and relinquish all rights she has ... under the [PA] Fine Arts Preservation Act, with the exception of §2103”. I managed with great difficulty to hold onto paragraph 2103, because meanwhile I realized that this paragraph allowed me to “retain at all times the right to claim authorship”, or at least disclaim authorship, if I considered my work seriously mutilated and compromised (which isn’t much of a consolation, but better than nothing). Naturally, in my initial contract it was stated that I kept copyright of my design (and it is so stated also on two plaques installed in the park), but if you give up the right to claim authorship, even within a local law context, I am not sure to what extent copyright protects you. Fortunately, there was no mention of VARA in my two agreements, so I think I would win if I ever had to sue the City of Philadelphia, because, as you heard, Federal law prevails over comparable State law. The Fairmount Park Commission has not mutilated my park – it is just an issue of neglect: most of the evergreen plantings on the terraces have disappeared (a few have been replaced); over ten out of fifty trees died (and were not replanted); two of the benches were stolen; the stone retaining walls of the planters have seriously disintegrated; and the packed-earth paths are dangerously rutted. You can visit the park and judge for yourselves, even though winter is not the best time. However, to be fair to the client, everybody knows that plantings are notoriously hard to maintain – especially nowadays, when labor is expensive and the overall urban environment has deteriorated. After years of repeated entreaties and unfulfilled promises, I am happy to report that the City and the Redevelopment Authority’s Public Art Committee have now raised funds to restore the paths, and later the stone walls. Meanwhile, at least my grand rock clusters are still in good shape and the remaining trees are growing – and of course the lawns are well preserved! Because, in this country, people do take care of their lawns, like their cars, but somehow they never dream that outdoor sculptures also need maintenance and repair. Unfortunately for artists and their art, ours is a society that places priority on change and economic growth, not on permanence or esthetic values. I wonder, what will be left behind as testimony of our public art a millennium, or even a few centuries from now. © Athena Tacha, 2002 http://www.oberlin.edu/~art/athena/tacha.htm Report Link Failures: links@studiolo.org |
approved by the committee, and I signed a contract
with the City and executed the work in 1991. To make a long story short,
lack of maintenance made the sculpture unsightly within eight years -- in
spite of a misguided attempt at restoration -- and in early '99, I was
notified that they intended to destroy Memory Path. Upon my
protesting (and after some heated public debate), City officials proposed
instead to move the sculpture to another site, even though I assured them
that it was site-specific, and reconstructing it elsewhere would be much
more costly than repairing it. Fortunately, by just one year, my '91
contract was protected by VARA, and with the assistance of my Washington
lawyer, Ann Garfinkle, I won the battle out of court: Sarasota has agreed
in writing to repair and maintain Memory Path on a yearly
basis. They did re-highlight the photos, but nothing has been done yet to
replace cracked granite, miserably caulked joints, etc. Theoretically,
restoration is pending, but I’ll believe it when I see it!
Soon
after, the same thing occurred in another Florida city, Fort Myers, where
I had won a competition in 1985, and had designed a sculpture,
Marianthe, for the local campus of the University of South Florida
[SLIDE]. The University actually sold its campus in the mid-90s to the
adjacent Tom Edison College, and the College notified me in 1999 that
damages to the sculpture, caused by weathering, made it a dangerous
structure -- so it had to be taken down. Even though the sculpture was
much liked, and the entire staff had been proudly photographed in its
loops in ’95 [SLIDE], again, the commissioning institution had not
followed my maintenance directions (or bothered to give them to the new
owner). Cracks developing in the mortar had not been filled to prevent
rainwater seepage, therefore the reinforcing steel rods had rusted, and
the brick walls had started popping apart. In fact, a licensed engineer
had designed the structural support system, and it had been approved by
the University, as per contract. My contract also had been worded to
protect the sculpture fully with such clauses as: 
“The
University shall keep the Sculpture in good condition and repair it and
permanently display it...
