VARA

Last Updated on Tuesday, 23 March 2021 08:05 Written by Chris Griswold Tuesday, 23 March 2021 08:05

Q:  As Oklahoma City and Tulsa grow into world-class cities, more and more high quality, unique and beautiful art work is sure to begin to appear in hotel and office lobbies, convention center halls, and other public areas – thus making relevant the Visual Artists Rights Act of 1990 (“VARA”).  What is it?

A:  Except for instances, among others, in which: i) the artist(s) of the work are employees of the person or entity commissioning the work; thus making it a “work for hire” under VARA, ii) the art work is an advertisement or promotional material, or iii) the art work is a work of nature (like a flower bed exhibit, which has no copyright protection, thus no VARA protection), VARA “…protects both the reputations of certain visual artists and the works of art they created.  It provides these artists with the rights of ‘attribution’ and ‘integrity’…,” which are the artists “moral rights.”  Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (2d Cir. 1995).

Q:  What type of art work does VARA protect?

A:   Works of visual art like drawings, paintings, sculptures or photographs produced for exhibitions which are open to the public.

Q:  What sort of quantities of art are protected under VARA?

A:  Those existing in either one, unique, single copy or a limited edition of 200 prints or less.

Q:  What “rights” of the artist does VARA protect?

A3 of them:  1) the right of attribution to the artist (as being the work of such artist and the right of the artist to be recognized for creating it), 2) the right of integrity (which the artist has created in and through the ‘arduous’ process of creating such work), and, in the case of works of visual art of “recognized stature,” the right “to prevent destruction” of the art work.

Q:  Does the art work need to be registered under copyright law to have VARA protection?

A:  No, and the artist can still obtain basically the same copyright law protections as under VARA – without such copyright registration.

Q:  How does a building owner, property manager and/or a city council protect itself from artists later making claims against them (due to the eventual removal and possible destruction of the artwork), and how long does such protection for the artist last?

A:  For works created on or following June 1, 1991, they all should, for as long as the artist remains alive (or until the last of all contributing artists die), get a written, signed waiver of the artist’s (or artists’) rights under VARA.

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Ice, Ice Baby (Vanilla Ice, To The Extreme, 1989)

Last Updated on Sunday, 14 February 2021 11:35 Written by Chris Griswold Sunday, 14 February 2021 11:35

Icy, snowy, slippery sidewalks (say it 3 times fast).  We’ve all seen our share this winter.  In response to a large number of inquiries I’ve received from concerned hotel, restaurant, office and retail owners and tenants, as well as the several requests I’ve received from our local insurance underwriting community that I write on the topic, I wanted to write a short piece in the hopes it saves some of you needless worry and, possibly, money.  Accordingly, I’ll answer the two most commonly asked questions from the groups mentioned above.  This should be helpful to everyone… (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Ice, Ice Baby (Vanilla Ice, To The Extreme, 1989)

Question #1:  “If I put out snow melt on my sidewalks, does it somehow serve as an admission of guilt if someone should subsequently slip and fall on the premises?

Answer:           No.  The very act of putting out snow melt, etc… in an effort to prevent people from slipping, falling and hurting themselves cannot later be used against you.  In other words, you can’t use someone’s efforts to avert an accident against them later on if and when the accident occurs.  If you could, it would be tantamount to saying “…I’m suing you for trying to help me.”  Now, there are other relevant factors including, but not limited to, whether or not another person slipped and fell in the same area just before the plaintiff slipped and fell, whether you put out enough – and many others.  However, the fact that you put out snow melt, in and of itself, is not an admission of guilt; nor can it later be used against you in showing negligence.  Accordingly, don’t be afraid to put out snow melt when the weather gets bad.  However, and most importantly, when you put it out, put out enough to really do the job (including getting out your shovel if need be so the area(s) in question are clean, clear and safe).

Question #2:  “When should I put out snow melt?

Answer:          It depends.  Actually, the legally correct answer to this question is “when it’s reasonable to do so.”  Say what??!  I know…, it’s legalese and not really clear.  However, you can pretty much nail it down if you ask yourself the following question: Given the current weather conditions; if my mother came to see me at work today, should I put out snow melt?  If the answer is yes, put it out.  Otherwise, don’t sweat it.

What My Clients Are Saying

“Chris Griswold was instrumental in negotiating a very solid, long-term lease for our bank branch in Oklahoma City.  His industry knowledge helped us avoid several potential pitfalls with a landlord that was somewhat difficult at times.  It was a pleasure to work with Chris because of his professional style and easy going demeanor.”
Charlie Crouse / Simmons Bank / Oklahoma City, Oklahoma

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Residential Home Sale/Purchase/Lease Warranties Discussion

Last Updated on Thursday, 21 January 2021 02:56 Written by Chris Griswold Thursday, 21 January 2021 02:56

I’ve been asked to be involved in a number of larger, residential home sales and purchases during this, low-interest-rate, home-buying/refinancing window.  A few things have caught my eyes regarding the warranties that certain sellers or builders afford their buyers in the process and I wanted to address them for everyone’s benefit.  From the questions I normally receive, I wanted to share these with everyone (and for the benefit of everyone).  This is good stuff for everybody to know… (don’t forget to click on my link above to also see my short video on this material).

Residential Home Sale/Purchase/Lease Warranties Discussion

Warranty of habitability.  This warranty is one that does not apply to commercial property, but it does apply to residential property.  In commercial property, there is no reasonable expectation a buyer or tenant can have that the property they are buying or leasing is suitable, intended, fit and designed to be lived in.  However, in residential home leases or purchases, there is a warranty of habitability available for a buyer or tenant to rely upon when entering into the transaction.

In fact, in a residential lease or purchase, this warranty of habitability is implied, even if it is not addressed (i.e., written out) within the lease or purchase contract.

Accordingly, whether you’re a realtor representing buyers or a homebuyer, don’t gloss over giving up your right (or your clients’ rights) to insist that, especially when buying a new home from a home builder, such home come with a warranty of habitability.  Why?  You (or your clients) might later rely upon this written or unwritten warranty when pursuing a remedy for some sort of defective, usually latent (i.e., hidden) condition in such new home.

This warranty, since it applies to dwellings, is a consumer remedy, not a commercial business one.

Warranty of Fitness for a Particular Purpose This warranty, while I’ve seen it used in real estate (i.e., real property) sale or purchase deals and leases, is really more aimed at consumer, personal property purchases or leases – not real property purchases or leases.

The warranty says that a certain good or product is intended and suitable to be used in connection with a certain purpose or activity.  There are situations and circumstances whereby this warranty can be relevant to a real property transaction, however, if it’s a residential home deal, the purpose usually goes back to a warranty of habitability.

In otherwords, the purpose of the real property being leased or purchased is to live in it…, not to address that some other specific kind of purpose or activity.  So, oftentimes, this warranty is not a relevant or important aspect of the transaction.

Like habitability, it is also implied, and protects a consumer purchaser or lessee.

Warranty of Merchantability.  This warranty, without getting into too much legalese, is very much like the warranty of fitness for a particular purpose directly above.  Accordingly, this warranty applies more to personal property purchases and leases – not real property ones.

Like the other two warranties above, this warranty is also implied, and protects a consumer purchaser or lessee.

So why are all 3 warranties so often seen and included within residential real estate deals?  Because home leasing and buying is a consumer event.

However, the warranty most relevant to a real property transaction, and the one you (as the realtor or the homebuyer or tenant) don’t want to waive and give up is the warranty of habitabilityWhy?

You or your client may eventually need it should problems later arise relating to a defectively constructed property….

What My Clients Are Saying

“Chris Griswold is a good business attorney whom I’ve used often and much through the years, for both my business and personal needs, and whom I’d gladly refer to anyone.  He’s creative, prompt, eager to help and very competent.  He’s good at what he does, he has fun doing it, and it shows up in his work through his good problem solving skills.  I look forward to a long and  continued relationship with Chris and his firm for a long time to come.”
Edward F. Wells / President, Wells Nelson & Associates / Oklahoma City, Oklahoma

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