Dead on the Vine: Living and Conceptual Art and VARA

The Visual Artists Rights Act of 1990 (VARA) broadened general copyright protection under U.S. law by granting to artists who have created certain copyrightable physical works of visual art, the moral rights of attribution and integrity. Since the time of VARA's enactment (and for some time before) many artists have worked with unconventional genres and media to produce art that is not comfortably accommodated among the visual art works contemplated by VARA. An increasing number of recent works of Conceptual and Appropriationist Art raise doubts about fixation and original expression, both of which are required for copyrightability which, in turn, is required for a work to be protected under VARA. This article discusses the uncomfortable fit of VARA and many contemporary works of art, particularly those that incorporate to a significant degree living objects in their natural state.

It focuses on the recent dispute involving a VARA claim in a living landscape (Kelley v. Chicago Park District) and discusses similar works of art in which living elements play a critical role in contributing to the meaning and aesthetic value of the work. It argues that in these works, and indeed in Conceptual Art in general, authorial contributions tend to be ideational rather than expressive, and that the application to them of copyright rights and moral rights is both unnecessary and undesirable in promoting a productive and imaginative cultural milieu.