Assuming that she is relying on VARA, her statement would appear to be … incorrect.

As I read the law, I don’t see anything about the City of Berkeley or Mary Ann Merker “granting” any waiver, it’s Steve Gillman who grants the waiver to the anonymous individuals who knitted the cozy. Once he has granted that waiver, the right of the city to use the provisions in VARA to force the removal of the cozy are … terminated.

That doesn’t meant that the City or Mary Ann Merker might be relying on some other part of the Federal Code (but I doubt it), or that there may not be some California Statute or BMC that they might try to stretch to fit (hard to believe they can find something that fits it to a T, though).

I also can’t believe that in all the coverage on this, no one has cited the law she is alleging is being broken. I’m just amazed that we let people get away with saying “a violation of Federal Law” without immediately demanding to know exactly what law they are referring to. I finally read the Chronicle article, but not all the comments, so maybe someone covered this. If the City is relying on VARA, we could have easily seen that the artist has the right to grant a waiver.

I see this case unraveling before the T cozy does, but only if Steve Gillman waives his right under VARA to “prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right.”

He would have to “expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified.” Remember, it doesn’t matter who owns the work (we do, not the City of Berkeley, sometimes we forget these subtle distinctions), these rights are specific to the right to modify the work, in this case, with a tea cozy.

It will be interesting to see if the Mr. Gillman or the anonymous knitters pursue this.

“Merker said she understood Gillman’s sentiment, but the yarn must still go.

“He has a right to his opinion,” she said. “But he doesn’t own it anymore.”

What fun it will be for him to be able to tell the city to lay off the knittas! This is such a fun story, I hope that it gets wider coverage when and if Mr. Gillman puts a stop to further enforcement. This is the kind of story that gets picked up nationally ….

You’re beautiful! The T cozy can stay up! If Mr. Gillman puts his waiver in writing and gives it to Mary Ann Merker, there is no violation! Here is the relevant section of VARA:

(e) Transfer and Waiver.—
(1) The rights conferred by subsection (a) may not be transferred, but those rights may be waived if the author expressly agrees to such waiver in a written instrument signed by the author. Such instrument shall specifically identify the work, and uses of that work, to which the waiver applies, and the waiver shall apply only to the work and uses so identified.

Another problem solved by people who have “too much time on their hands.” Well done, Berekelyside Community!

From the Chronicle via Berkeleyside’s Berkeley Wire:

“Meanwhile, one of the two artists who created “Herethere” said he applauds the knitter’s civic disobedience and thinks the city should leave the cozy alone.

“They have started a dialogue where possibly only a monologue had existed before,” artist Steve Gillman wrote in an e-mail. “I think it is unfortunate that the city is taking such a rigid stance on this. After all, nothing permanent is going on here. A most gentle and beautiful protest, in my opinion.”

Wow, that was fast. You are everywhere!

Actually, as I read the code the law applies irrespective of copyright:

“(b) Scope and Exercise of Rights.— Only the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner.”

I would say that adding a knitted covering to the tee is a “modification” under VARA, it would be hard to argue that it wasn’t in front of a disinterested and impartial third party (but I like the existential questions you raise).

I like the T cozy, I think it’s a wonderful addition, but it would appear to be illegal unless the artist consents. I hope it stays up, but if this is the law that Berkeley City’s Civic Arts Coordinator Mary Ann Merker is citing, then I would say that leaving it up will require civil disobedience (which I would also respect in this case).

And, if the City does hold copyright, I’m not so sure that “intententional distortion” or “modification” truly applies. That’s ultimately an aesthetic argument given the transient nature of a bunch of yarn and the varying understandings of what the art is “about”.

I can save you a filing fee. Why go to court when it’s so easy to find if you know where to look online? I too found it hard to believe that there could be a federal law that covered this “T cozy”, but what do you know, there is.

While there may be others, I’m going to guess that the city is citing VARA (the Visual Arts Rights Act of 1990). It’s in the US Code, TITLE 17, CHAPTER 1, § 106A –”Rights of certain authors to attribution and integrity:”

“(a) …the author of a work of visual art …(1) shall have the right— 3. (A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and …”

http://www.law.cornell.edu/uscode/17/106A.html

I don’t think there is any question that this is “intentional distortion” or “modification,” so it appears that the law is not on the side of the T cozy.

I wonder if this is actually being driven by the artist? If I’m reading the code correctly, the artist has the right to waive that right, and could easily waive the right just for the T cozy, while not giving up any future rights to object to any modifications. Could this be why the artist hasn’t publicly commented on this yet?

I Learn something new every day here on Berkeleyside.