New York Artists Authorship Rights

 

The New York Artists Authorship Act statute is the primary law in New York that is concerned with certain artist rights.  Most significantly it is concerned with moral rights.  Moral rights are those that theoretically involve the “natural” rights of artists, such as integrity and attribution, rather than those that are more specifically based on government given rights like copyrights.  The actual text of the law can be accessed via hyperlinks in the resources section at the bottom of the page. Following is a summary of the relevent sections. 

Protects Fine Art in the State of New York

The Artists Authorship Act law applies to works that fits the following description:

Artworks that are knowingly publicly displayed, published, or reproduced in the state of New York. 
Single works of fine artwork, artworks in limited editions of 300 or less, and reproductions of such artwork.

There does not appear to be any requirement for the artwork to have been made in New York, nor is there a residency or citizenship requirement for the artist.


Classifying Fine Art

In the context of this law, New York defines fine art as “…a painting, sculpture, drawing, or work of graphic art, and print, but not multiples.” (Section 11.01(9)). Photographs made from negatives are specified as being in the “print” category.  However, prints made from negatives and positives are defined by the same set of definitions as “multiples.”  “Multiples” are covered by the law so long as they are limited editions of 300 copies or less.  Because of the limitation of 300 copies, mass produced images, such as certain promotional materials distributed in larger numbers, would not be covered by the law. 


Doesn’t Apply to:

This law does not apply to motion pictures or other “sequential imagery.”  Refer to the definitions contained in the statute for more detail about this.
This law also doesn’t apply to contracted work for hire in the form of advertising or use “in trade” unless the contract specifies that the law applies.


Right to Claim (or Disclaim) Authorship

New York’s artist authorship rights law provides that the artist has the right to claim authorship to the artwork.  Claiming authorship includes the right to have one’s name associated with the work by having the name physically upon the work or in connection with the work.  With “good reason” an artist may disclaim authorship and prevent his/her name in connection with the work.  Appropriate “good” reasons to disclaim include circumstances where the work has been altered, defaced, mutilated, or modified without the artist’s consent AND when damage to the artist’s reputation is reasonably likely to result or has already resulted.


Protection from Alterations, Defacement, etc….

The law provides artists with both the right to claim association with their works and to protect artwork from certain authorized changes, such as mutilation or modification.  The law states that artwork which is altered, defaced, mutilated or modified may only be publicly displayed or published by the artist who made the work.  If someone else, without the artist’s authorization, publicly displays or publishes the work, and IF the work is known to be the artists work or if it is reasonably regarded as the artists work AND the display or publication is reasonably like to result in damage to the artist’s reputation, then the law is violated. 

Damage to Artist’s Reputation

A key provision in the law is that the unauthorized display or publication must be (reasonably) likely to damage the artist’s reputation.  This provision may, arguably, be perceived as representing two concepts of damage.  First, in terms of moral rights the artwork represents the artist’s face; when the integrity of the artwork is violated, so is that of the artist.  Secondly, damage to reputation could theoretically result in monetary loss.  If the work is changed in such a way so that it appears to be bad art, or poorly crafted work, then the artist may not receive future commissions or sales based upon the perception of the altered work.  This potential existence of this duality might be inferred in the Wojarnowicz case.  The artist in this case won on the basis of the defendant’s violation of this law.  However, he was only awarded nominal damages in the amount of $1 by the court. Though it is not explicitly stated in the decision, the court appears to have decided that the (likely) damage to Wojarnowicz' reputation was either not substantial or that the harm to his reputation was not worth much monetarily–although some potential harm to his reputation must have been found.  The law does not appear to specify what standard to apply, nor whether such damage is measured by moral-based harm or monetary harm to the reputation is unclear.  A consideration for artists to take from this information is that the artist's assessment of damage may be quite different than the court sees it.  Perhaps an artist with more concrete evidence of damage to his reputation would have received more than nominal damages.  It is hard to know, but regardless, Wojnarowicz established that an artist can potentially receive a damages award when this law has been violated.  See more on the Wojarnowicz case.

Despite an outcome as mentioned above, in assessing the possibility of damage, the wording of the law should be considered carefully and with precision.  From the text of the statute, consider what may be keywords:  “…under  circumstances under which it would reasonably be regarded as being the work of the artist, and damage to the artist's reputation is reasonably likely to result therefrom …” (emphasis added). Analyzing these words as a whole, the potential damage (that which is reasonably likely) must result from the circumstances, that is from the defendant’s violation of the law.  This leaves a lot of facts open to argument, in terms of how or why damage to the artist's reputation might occur. Also, damage to the reputation need not be absolute, but rather, “reasonably likely,” which is hardly a sharp line. It bears repeating that that physical damage to the artwork is only relevant to a lawsuit based on this law when it also results in potential damage to the artist’s reputation.  Mere damage to artwork alone is not sufficient to create a violation of this law.


Inherent Changes; Gross Negligence as an Unauthorized Change

Changes to the artwork resulting from inherent qualities of the materials or those that occur due to the passage of time are not a violations of the law –unless they are the result of “gross negligence” in caring for (maintaining or protecting) a work of art.  See, What is Negligence? 


Reproductions and Restoration

For reproductions of artworks, the change into the repro medium is not a violation of this law and therefore, an artist may not disclaim authorship based on reproduction alone.  Also, when a work has been subject to conservation efforts, such as to preserve it, the act(s) is not a violation–unless the conservation work was negligent.


Remedies for the Artist and the Statutory Limitation

An artist may seek legal damages ($) or injunctive relief (a court order to stop or take some action) by bringing a lawsuit against the party that has violated the law.  It is important to understand that there is a time limitation (statute of limitations) on when such a lawsuit must be filed. A lawsuit must be brought within three years of the violation or within one year after the artist “constructively” discovers the act.  Whichever term is longer applies and is the limitation on time to file a lawsuit.  If the suit is not filed before the designated time limitation, then the lawsuit will likely be dismissed by the court. Because the result of not filing prior to the time limitation is severe, in order to preserve rights it is important for artists to seek legal counsel promptly upon becoming aware of a violation. 

Additional considerations may also exist in conjunction with a lawsuit based upon this New York law, such as a trademark infringement action or a (Federal) copyright infringement suit, depending upon the particular circumstances.

Notes and Resources

Read the statutory text, New York Art and Cultural Affairs Law, Title C, Section 14.03

The statutory language quoted or cited here was current as of November 1, 2008, but to confirm, search the consolidated laws of New York on the state Legislature's website. (Select Art and Cultural Affairs Law, Article 14)

The New York law discussed here also has provisions that applies to sculpture.  Copies of these sections can be found here (NY Art and Cultural Affairs Law, Title C, Sections 14.05, 14.06, 14.07).

Read the text of the Definitions that apply to this law.

Capsule Summary: Wojarnowicz vs. AFA.
The assessment of the Wojarnowicz case in the paragraph entitled "Damage to Artist’s Reputation" is that of the author's opinion and is based upon a reading of the court's decision only. Other individuals may conclude differently in regards to the issue of the nominal damages.

Note: Case law has found that the federal law, VARA, preempts (overrides) the New York state law on artist authorship rights. There has been academic disagreement with this position, particulary on the point that the NY law only protects the work when the alterations to it can damage the artist's reputation. However, because of the existence of these decisions, this possibility should be considered at least until future decisions clarify the points at issue. It should be noted that even if VARA preempts portions of this NY law, it does not invalidate the entire law. The VARA legislation only preempts portions of the NY law, or other state laws, which are specifically in conflict with particular provisions of VARA. See also, The Basic Legal Structure; Courts and Statutes regarding preemption and about VARA.

Additional summaries of relevant New York cases and decisions will be added to this page over time.