Attorney Steve® - Art & Copyright Litigation - CAPA and VARA Discussed

Introduction

California Art Preservation Act (“CAPA”) is one cause of a action you may see raised along with a VARA claim.  Here is how the court above analyzed these claims on one case:

"Defendants next contend that Plaintiff's second and third causes of action under CAPA are preempted by VARA. Plaintiff argues that the VARA does not preempt CAPA because VARA only protects “destruction [that] is ‘prejudicial to his or her honor or reputation.'” (quoting 17 U.S.C. § 106A(a)(3)(A)&(B)). Whereas, according to Plaintiff, CAPA protects “damage to the property itself—irrespective of the honor/reputation injury to the artist . . . .”

Plaintiff further argues that if a jury were to find that Plaintiff's art is “applied art,” it would fall outside of VARA, but would be eligible for protection under CAPA as a “work of fine art.”

Courts in the Ninth Circuit apply a two-part test to determine whether a state law is preempted by the Copyright Act. Laws v. Sony Music Ent., Inc., 448 F.3d 1134, 1137 (9th Cir. 2006); Downing v. Abercrombie & Fitch, 265 F.3d 994, 1003 (9th Cir. 2001); Whalen v. United Food & Com. Workers Loc. 135, No. 14-CV-3017 W BLM, 2015 WL 4659213, at *2 (S.D. Cal. Aug. 5, 2015).

First, the court must determine whether “the ‘subject matter' of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 the state law claim falls within the subject matter of [federal copyright law].” Laws, 448 F.3d at 1137.

Second, the court must determine “whether the rights asserted under state law are equivalent to the rights contained in [federal copyright law] . . . .” Id. The court rejects Plaintiff's reading of the VARA. The VARA does not require a showing that the destruction of a work of visual art be prejudicial to an artists' honor or reputation. Rather, the VARA provides that “any intentional distortion, mutilation, or modification of [a work of visual art] is a violation of that right”—the right to prevent the destruction of a work of visual art that would be prejudicial to the artists' reputation or honor. 17 U.S.C. § 106A. 

In other words, by statute, the intentional destruction of a work of visual art is by definition prejudicial to the artists' honor or reputation. Thus, VARA preempts CAPA, whereas here, Plaintiff's claim under CAPA is based on the same right of integrity protected under the VARA. (“. . . in violation of [Plaintiff's] rights including his right of integrity therein, as set forth in Title 17, Section 106A(a)(3)(A) and Section 106A(a)(3)(B)”)(“. . . in violation of [Plaintiff's] rights including his right of integrity therein under Cal. Civil Code § 987.”). See Whalen, 2015 WL 4659213, at *2; Cort v. St. Paul Fire & Marine Ins. Companies, Inc., 311 F.3d 979, 984 n.1 (9th Cir. 2002) (noting that “it appears that CAPA may have been preempted by VARA.”) (citing Lubner v. City of Los Angeles, 45 Cal. App. 4th 525, 531 (1996)).

At this stage, the court finds that the parties have insufficiently briefed preemption as it relates whether Plaintiff's art could fall outside of the VARA as “applied art” but still be protected under CAPA as “fine art.” See Cal. Civ. Code § 987(b)(2) (“‘Fine art'” means an original painting, . . . of recognized quality, but shall not include work prepared under contract for commercial use by its purchaser.”).

In any event, Plaintiff has not sufficiently alleged that his work is an “original painting” as he argues in his opposition. Therefore, the court does not reach whether CAPA is preempted by the VARA in such a case.

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