The Confederate Memorial Carving on Stone Mountain, Georgia, is a colossal, high-relief sculpture – the largest in the world – of Jefferson Davis, Robert E. Lee and Stonewall Jackson, prancing about on horseback in grand Confederate finery, chiseled skillfully, one might even say artfully, into a face of solid granite, just outside of Atlanta, Georgia. Sculptors began the carving in 1912, and after decades of fits and starts, in 1963, the Stone Mountain Memorial Association chose Walker Kirkland Hancock, of Gloucester, Massachusetts, to complete the carving. Work resumed in 1964, during the thick of the Civil Rights Movement, and was completed in 1972. The monument is almost three acres in size and is visible for miles from several vantage points. It is now owned by the State of Georgia. Walter Hancock (of Gloucester, Massachusetts), the author of this controversial work, died in 1998.
Public pressure is mounting to address this elephant in the room: That there is, in our inescapable midst, a gargantuan and very public monument extolling treason, slavery and white supremacy. And this monument makes a lot of people, shall we say, uncomfortable.
Let’s assume, purely hypothetically, that Walter Hancock (of Gloucester, Massachusetts) retained authorship (as opposed to ownership) in the Confederate Memorial Carving. Could the (hypothetical) Hancock heirs – as the holders of his (hypothetical) copyright interest in the Confederate Memorial – assuming those heirs were so inclined, prevent the State’s efforts to alter or remove the sculpture?
Under general copyright law, a copyright endures for the life of the author plus 70 years. Walter Hancock (of Gloucester, Massachusetts) has been dead less than 70 years, so does this copyright protection give the Hancock heirs a basis to prevent the Memorial’s alteration or removal? No, not under general copyright principles.
Prior to 1990, federal law gave only limited recognition to an artist’s droit moral, or moral rights, in a work of art. Thus, under U.S. law, an author of a creative work retained virtually no control over what happened to his work once it left his hands, although some states (notably, not Georgia) have granted some moral rights to artists. Generally, the owner of the artwork was free to dispose of it, including destroy it (but not copy it), as it saw fit.
In 1990, Congress passed the Visual Artists Rights Act (“VARA”), which granted to authors of certain visual works, including sculpture, legal protection of their moral rights of attribution and integrity, including integrity as to the location of site-specific works, such as the Confederate Memorial carved into Stone Mountain.
Under VARA, the author (as distinguished from the owner) has the right “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 to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”
However, the VARA copyright protections generally apply to works of visual arts created after the effective date of VARA (December 1, 1990), and extend only through the life of the artist, and not an additional 70 years after death as otherwise provided by federal copyright law. The Confederate Memorial was completed prior to the enactment of VARA, and Walter Hancock (of Gloucester, Massachusetts) died after the effective date.
There is one exception, though, which extends the VARA protections beyond the life of the artist: If (a) the work in question was created before the enactment of VARA (as it was here), and (b) the artist still retains title to the work (in our case, the hypothetical heirs), then the duration of protection under VARA extends to the full term of copyright – life of the author plus 70 years. 17 U.S.C. Section 106A(d)(2).
So: Could the (hypothetical) Hancock heirs use this VARA exception to stymie efforts to alter or remove the monument?
Yes, it appears that they could. Alteration of the monument would certainly prejudice the artistic honor or reputation of Walter Hancock (of Gloucester, Massachusetts). While VARA does not prevent the removal of a work where removal can be accomplished without damaging the work, this is clearly not an option for the Confederate Memorial, which is site-specific by its very existence. In addition, while there are waiver provisions in VARA, and these waivers are often required from artists in the case of public art, there was no VARA to waive when the Confederate Memorial was completed.
We don’t suggest that the (hypothetical) Hancock heirs have a slam-dunk legal position – and there are legal impediments for the State, as well, including a Georgia statute that specifically prohibits altering, removing, concealing, obscuring or destroying “the memorial to the heroes of the Confederate States of America graven upon the face of Stone Mountain” – but the (hypothetical) Hancock heirs appear to have federal law on their side if the State overcomes its hurdle.
Thus we come to the controlling question: what are the rights of the government to reject pernicious and offensive symbols in the face of federal copyright protection of those symbols? Alas, this is a question for another post.