Photo Attorney

Jun 3, 2008

One Man's Trash Is Another Man's Treasure

Famed artist Robert Rauschenberg recently sued artist Robert Fontaine claiming that Fontaine took items from Rauschenberg's trash and fraudulently sold it under Rauschenberg's name. Rauschenberg alleges he did not create the work.

Fontaine's attorney explained:
Robert (Fontaine) goes to the post office one day and sees all this junk piled up on the street. He pulls out of the trash three rolls of what are called chromes. The rolls had numerous 30-inch-by-30-inch sheets of what looked like negatives. All of a sudden it all dawned on him that this is Rauschenberg's, kind of, trash. The signatures on the pieces are apparently Rauschenberg's. It appears Rauschenberg threw this stuff away.

Generally, when you put your trash on the street, the items are considered abandoned for anyone to claim. Even the US Supreme Court has held that you have no privacy interest in your trash, so the police can go through it.

But under the Visual Artist's Right Act ("VARA"), an artist whose work meets the requirements can put limits on his work. Specifically, the author of a work of visual art -
(1) shall have the right -
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art
which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation . . .

See 17 USC Section 106(A).

For photographers, the VARA only applies to "a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author." Unfortunately, we will not know how a court would have ruled on the Rauschenberg case. Mr. Rauschenberg has recently passed away; his VARA rights ended with his death.

The moral to the story: if you don't want your "rejects" displayed, make sure they are destroyed!

p.s. The Copyright Office has a report on waiver of the VARA that includes some history and comparison of the VARA to other nation's "moral rights" protection for artists.