On June 24, 2012, the Los Angeles County of Museum Art unveiled the most recent addition to its collection: “Levitated Mass.”  “Levitated Mass” is a 340 ton boulder placed on two pieces of steel and centered over a long, thin hole in the ground, giving it the “illusion that it is hovering in space.”  It was designed by Michael Heizer, and it is an example of land art.

Land art, also called environmental art or earthworks, is a type of site-specific art.  This means that it integrates the site, or the location, into the art.  Land art was pioneered by Robert Smithson in the 1960s and is typified by his work “Spiral Jetty.”  Although it is a relatively new art form, it has become increasingly popular.  For example, the Indianapolis Museum of Art recently opened the Virginia B. Fairbanks Art and Nature Park, a 100-acre area dedicated entirely to site-specific art.  But the increasing popularity of site-specific art, like Michael Heizer’s “Levitated Mass,” raises new questions about how to protect the art under existing copyright laws.  In other words, if a person moves, modifies, or destroys site-specific art or land art, what legal recourse is available to the artist?

Currently, the Visual Artists Rights Act (VARA), passed by Congress in 1990, provides artists with the right to protect their work from modifications that are prejudicial to their honor or reputation.  It also protects their names from being associated with work that they either did not create or that was modified without their consent.  However, these rights only apply to paintings, drawings, prints, or sculptures that meet certain conditions.  VARA requires that the work, inter alia, be copyrightable, not be used for advertising or promotion, and not be made for hire.  Thus, VARA protects what many consider traditional art, or plop art.

However, it is unclear whether VARA protects earthworks, for the statute fails to address site-specific art altogether.  In Phillips v. Pembroke Real Estate, Inc., the U.S. Court of Appeals for the First Circuit categorically excluded site-specific work from VARA protections.  The court explained that this was necessary in order to honor the long-standing common law principle against the burdening of property.  In other words, because site-specific art is incorporated into the land, to protect such art would prevent landowners from altering his property without permission from the artist.  Art would encumber the land.  Thus, VARA cannot apply to site-specific works.

Just this past year, however, the US Court of Appeals for the Seventh Circuit, in Kelley v. Chicago Park District, stated that “an all or nothing approach may be unwarranted.”  In Kelley, the court determined that “Wildflower Works,” a vast garden created by Chapman Kelley, did not meet VARA’s requirements and was ineligible for VARA protections.  However, it suggested, in dicta, that VARA may be applicable to site-specific works.

The uncertainty in the law may not impact Michael Heizer, as it is unlikely that anyone will be able to move or destroy his 340-ton boulder.  However, artists, museums, and landowners need to know whether VARA protects site-specific art.  The current law cannot be set in stone.  “Levitated Mass” reminds us that Congress must clarify it.

Frances Kammeraad

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One Response to Set In Stone: ‘Levitated Mass’ Reminds Us to Change VARA

  1. Katharine Skinner says:

    I find it interesting that VARA might not protect site-specific art, even in the context of a museum. I can understand the bad policy implications behind having encumbered land, but to me it seems like there is a big difference between Kelley’s large garden in a public park, and a piece of art placed on museum grounds. Perhaps the context should play a role in determining VARA rights. If “Levitated Mass” is copyrightable (I think it’s safe to say the fixation requirement is easily met here, and the originality threshold is a low one), then there would be no difference between VARA granting rights for this piece in the way that other pieces in the museum, like paintings, may have. The distinction between the types of work seems a bit artificial.