On the week’s eve before Chicago’s Art Institute christens its new modern art wing, some thoughts on Chicago art located (or which used to be located) outdoors.  Throughout the 80′s and 90′s, Chapman Kelley’s meticulous display of native wildflowers graced Chicago’s Grant Park.  In 2004 they were "mutilated" or reconfigured – depending on your perspective.  Kelley’s recent (April 13, 2009) Brief before the 7th Circuit Court of Appeals of the matter at hand can be found here.

Over at The Art Law Blog, not to be confused with our blog on Artlawteam.com, the Kelley Brief reignited some exhaustion over the September 2008 decision concerning Kelley’s Wildflower Works.  In the September 2008 decision, Kelley’s works were denied protection under the Visual Artists Rights Act (VARA) under the notion, among other considerations of "originality,"  that precedent excluded so-called "site specific" works (works which are built specifically for the place where they are located, not meant to be transplanted - pardon the pun – anywhere else) from VARA’s reach.

While there is much to be written and waxed upon concerning what should and what should not be covered or protected by VARA (which the Kelley Brief does in spades and the Art Law Blog seems to do well here and here), perhaps the real consideration when advising clients should be "Can we get it in writing?" 

I do not intend to come off too flip here.  My point is simply to recognize the fact that despite its charms, many commentators have noted that VARA is limited.  One must rember too that VARA, while a victory, was expressly a compromise.  The "moral rights" enjoyed outside of the United States are greater than those protected under VARA – which took pains to limit the rights granted by the Berne Convention.  The clear disconnect between the artist’s expectations for VARA and the few court decisions on the subject seem to suggest no battle is likely to be won very easily.

Keeping all of this in mind, if being able to pull one’s name from an altered work or being able to carry the sword of injunction or damages to prevent or punish the intentional mutilation of a work (in general terms the primary rights enjoyed for certain works of art under VARA), get it in writing as a part of the installment or commission agreement.  At the stage of the game where artists and patrons meet, it is unlikely the patron is looking to tell the artist outfront that it has an interest in altering the work in such a way that the artist would be harmed.  And if the patron wants this ability, it’s better to find a price for it at the front end than in the courts.