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When Art Might Constitute a Taking: A Takings Clause Inquiry Under the Visual Artists Rights Act

Posted by on Tuesday, May 25, 2021 in Notes, Volume 23, Volume 23, Issue 4.

Thomas A. Shelburne | 23 Vand. J. Ent. & Tech. L. 919 (2021)

At first glance, a federal statute protecting the moral rights of artists and their artwork seems like a unanimous victory. But it turns out that government action protecting certain works of art attached to buildings may give rise to a valid takings clause claim under the Fifth Amendment. Without compensation, a regulation requiring a landowner to maintain someone else’s property on his land would constitute a taking. The Visual Artists Rights Act of 1990 (VARA) requires landowners to maintain protected artwork attached to buildings or potentially face statutory damages. Although only one court has heard and subsequently denied a takings argument in the VARA context, in the highly contextual nature of the statute, there are still compelling arguments to be made that VARA-protected art may constitute a taking. This Note provides background on both VARA and the takings clause and provides various arguments that a VARA landowner-defendant could utilize to avoid liability.

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Thomas A. Shelburne