The Devil With The Blue Dress…Moral Rights and The Clinton Portrait

Artist Nelson Shank made headlines this week by stating his interpretation for the shadow depicted in his presidential portrait of Bill Clinton.   He claims the famous blue dress of Monica Lewinsky is the basis for the painting’s shadow.  In an interview shown on NBC’s Today Show, the artist acknowledged the muse in the form of a hanging blue dress representing an event casting a shadow on the Clinton Presidency.  Coincidentally, the National Portrait Gallery in Washington DC recently removed the painting from Exhibition citing a normal rotation of its Clinton Paintings.

It has been suggested that the Clintons are not pleased with the shadow and would prefer that it be removed from the painting. What right the Clinton’s have depends upon a number of factors in the interpretation of the Visual Artists Rights Act “VARA.” This Act in 1990 provided authors of narrowly defined works of visual arts limited moral rights of attribution and integrity including the right to claim or disclaim authorship in a work; limited rights to prevent distortion, mutilation, or modification of a work; and the right, under some circumstances, to prevent destruction of a work that is incorporated into a building.

One of the few cases rendered since enactment of VARA did recognize the moral rights of the artists in a sculptoral work installed as part of a NYC warehouse building.  When the Landlord planned to remove the work, the artists sued and were granted an injunction under VARA preventing the Landlord’s removal.  The US District Court found the sculptural work was of a stature and prominence where its removal would besmirch the artists’ reputation.  In the artists’ favor was that it was a single work, not applied art and that they owned the copyright in the work as independent contractors rather than as employees hired to do the work.  However on appeal, the artists were found to have undertaken the work for hire as employees and the injunctive relief granted by the District Court was overturned.

Mr. Shank, artist of the Clinton portrait, was commissioned to perform the work.  At this time, the nature of any dispute between the Gallery, the Artist and the Clintons is merely conjecture.  However, the artist’s reputation and the portraits stature do seem to be of significant stature to be protected under VARA.  Therefore, whether the artist was an employee or independent contractor would seem to be the significant factor in determining the rights of all parties with respect to any modification of the painting.

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