Burning Man Bus 'Applied Art,' Not Protected Under VARA: Ninth Circuit | Practical Law

Burning Man Bus 'Applied Art,' Not Protected Under VARA: Ninth Circuit | Practical Law

In Cheffins v. Stewart,the US Court of Appeals for the Ninth Circuit ruled that a bus outfitted to look like a Spanish galleon was "applied art," and not protectable under the Visual Artists Rights Act (VARA).

Burning Man Bus 'Applied Art, ' Not Protected Under VARA: Ninth Circuit

Practical Law Legal Update w-002-5771 (Approx. 4 pages)

Burning Man Bus 'Applied Art,' Not Protected Under VARA: Ninth Circuit

by Practical Law Intellectual Property & Technology
Published on 10 Jun 2016 • USA (National/Federal)
In Cheffins v. Stewart, the US Court of Appeals for the Ninth Circuit ruled that a bus outfitted to look like a Spanish galleon was "applied art," and not protectable under the Visual Artists Rights Act (VARA).
On June 8, 2016, in Cheffins v. Stewart, the US Court of Appeals for the Ninth Circuit ruled that a bus outfitted to look like a Spanish galleon was "applied art," and not protectable under the Visual Artists Rights Act (VARA) ( (9th Cir. June 8, 2016)).
Simon Cheffins and Gregory Jones created a replica of a 16th-century Spanish galleon, the La Contessa, from a used school bus for use at the Burning Man countercultural art festival. This replica had a galleon façade that included:
  • A hull.
  • Decking.
  • Masts.
  • A handcrafted figurehead.
At the festival, the La Contessa was used, among other things:
  • To give festival participants rides.
  • As the setting for at least two weddings.
  • As part of a marching band performance.
  • As the centerpiece of a children's treasure hunt.
Cheffins and Jones initially stored the La Contessa on property owned by the festival organizers and subsequently on property eventually owned by Michael Stewart. After a few years of non-use, Stewart burned the La Contessa's wooden structure so a scrap metal dealer could remove the underlying bus from Stewart's property.
Cheffins and Jones sued Stewart in the US District Court for the District of Nevada for destroying the La Contessa in violation of the VARA (17 U.S.C. § 106A). The district court dismissed the claim, ruling, among other things, that the La Contessa was applied art and therefore not protected by the statute. The Ninth Circuit affirmed.
The Ninth Circuit first noted that the VARA:
  • Was enacted in 1990 as an amendment to the Copyright Act and its purpose is to protect the author's moral rights by preventing the intentional distortion, mutilation, or other modification of an artist's "work of visual art" (17 U.S.C. §§ 101-810).
  • Does not define "work of visual art."
Since the VARA does not define "work of visual art", the Ninth Circuit consulted the Copyright Act for guidance. In doing so, it noted that:
  • Section 101 of the Copyright Act defines "work of visual art" as not "applied art" (17 U.S.C. § 101).
  • The VARA does not define "applied art."
The Ninth Circuit therefore favorably considered the Second Circuit's decisions in Carter v. Helmsley-Spear, Inc., and Pollara v. Symour (71 F.3d 77 (2d Cir. 1995)) (344 F.3d 265 (2d Cir. 2003)). Considering these decisions along with dictionary definitions, the Ninth Circuit concluded that an object is "applied art" when the object:
  • Initially served a utilitarian function.
  • Continues to serve a utilitarian function after the artist made embellishments or alterations to it.
Applying this test to the La Contessa, the Ninth Circuit determined that it was applied art ineligible for protection under the VARA because the La Contessa:
  • Originally was a school bus, which served the utilitarian function of transportation.
  • Retained a largely practical function after it was completed because it was used:
    • for transportation;
    • to host musical performances and weddings; and
    • as a stage for poetry and acrobatics shows.
Judge M. Margaret McKeown concurred in the result but proposed a different test because of her concern that the majority's applied art definition was too narrow. Specifically, Judge McKeown proposed that whether a work is applied art should be determined by evaluating the work as a whole and asking whether:
  • The primary purpose of the work is to serve a useful function.
  • The artistic creation is subservient to the utilitarian purpose.
Under this test, if the primary purpose of the work is:
  • To be viewed as art, the VARA would protect the work despite any incidental utilitarian function of the work.
  • Functional, the VARA would not protect the work.