Friday, February 12, 2010

Another VARA Decision (UPDATED)

Via Clancco, a VARA ruling out of the Fifth Circuit. Courthouse News Service summarized the facts:

"A Texas store owner and two local artists who transformed a wrecked Oldsmobile into a colorfully painted cactus planter with the message 'make love not war' were unable to convince the 5th Circuit that their expressive artwork transcends a city ban on junked cars."

The decision is here. The bulk of the discussion is of the First Amendment implications of the case, but there is a brief section on VARA. The district court had held that the ordinance in question "does not require the destruction of a junked vehicle, merely its screening from general public view." The Fifth Circuit added the following:

"The preliminary statutory issue ... is whether the car-planter qualifies as a 'work of visual art' under the VARA. The statute excludes 'any merchandising item or advertising, promotional, descriptive, covering, packaging material or container' from protection. 17 U.S.C. § 101. The district court found that the car-planters are closely associated with [the store], are part of the store's corporate image and culture, and are a distinctive symbol of the [the store's] business. These findings, which are not clearly erroneous, indicate that the carplanters are 'promotional' material and thus outside of the VARA's protection. For this reason as well as that of the district court, we affirm the conclusion that [plaintiffs] failed to state a claim for relief under VARA" (citation omitted).

UPDATE: Some thoughts from Ray Dowd at the Copyright Litigation Blog.