One Artist Suggests Melting Down The Paterno Statue - Is It Legal?

This article first appeared in Entertainment Law Matters, a Frankfurt Kurnit legal blog.

On Sunday July 22, Penn State University removed the famed bronze statue of Joe Paterno, which was located outside its football stadium, one day before the NCAA announced a slate of severe sanctions against the university arising from its role in the Sandusky child molestation scandal. A few days later, news reports emerged that sculptor Larry Nowlan suggested the statue be melted down and recycled into a "healing memorial" for victims of child abuse. While this proposal may have both spiritual and artistic merit, there is one problem: Nowlan is not the sculptor who created the Paterno statue. That distinction belongs to Angelo Di Maria who created the clay model for the statue from a photograph he took of Paterno at a football game, as well as artists Wilfer Buitrago and Yesid Gomez who worked with Di Maria to construct the final bronze statue.

Both Di Maria and Buitrago have expressed regret and some ambivalence about the statue's removal. According to Buitrago, it "felt like the piece is leaving the gallery . . . . The show is over." Describing his reaction to learning of the statue's removal, Di Maria said:

I turned on the TV and felt a deep sorrow in my heart. . . . When that happened, all the emotions surged up. It's part of me. It's like someone is taking off an arm or a leg . . . I remembered the love and passion and excitement of making the statue. I think it was the crowning glory of my career. That is the biggest one, bigger than life, as they say.

It is unclear whether anyone at Penn State is seriously considering Nowlan's suggestion to melt down the statue. But, if the university wanted to do so, would it be legal? The answer lies in the application of the Visual Artists Rights Act ("VARA") a federal law enacted in 1990 to protect certain "moral" rights of artists, beyond those protected by copyright. As courts interpreting VARA have explained, the purpose of the statute is to protect "'rights of a spiritual, non-economic and personal nature' that exist 'independently of an artist's copyright in his or her work' and 'spring from a belief that an artist in the process of creation injects his spirit into the work and that the artist's personality, as well as the integrity of the work, should therefore be protected and preserved.'" Massachusetts Museum Of Contemporary Art Found., Inc. v. Buchel, 593 F.3d 38, 49 (1st Cir. 2010) (quoting Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d Cir. 1995) ("Carter II")).

Whether the university is free to destroy the Paterno Sculpture turns on several key questions:

First: Is the Paterno statue "a work of visual art" under VARA?

VARA's protections apply only to "works of visual art," a narrower category than those protected by copyright law. The definition of "works of visual arts" includes sculptures "existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in...

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