LEGAL ALERT: The Cost of Violating Artists’ Moral Rights: A VARA Case Study
When Congress enacted The Visual Artists Rights Act (“VARA”), it granted certain “moral rights” to artists. These moral, non-economic rights extend protection to visual works, such as murals, and prohibit the willful and negligent destruction of works with “recognized stature”.
For a work to obtain recognized stature, the artist must demonstrate that the work possesses value, and the art must receive recognition by either the art community or society. At its core, VARA represents a significant legislative commitment to preserving the integrity of visual art, protecting an artist’s individual rights and safeguarding a community’s cultural heritage.
Case Study: Atkinson v. Shepherd
Atkinson vs. Shepherd, a landmark case for artists’ rights, demonstrates how VARA protects public art and the moral rights and integrity of artists who share their work with the community.
In June 1982, California artist Todd Atkinson was commissioned to paint a mural titled Water Tank, on the side of a building in Clover, South Carolina. Water Tank symbolized Clover’s founding by depicting its historic water tank and train.
Over forty years later, in September of 2023, the building’s owners hired another artist, Chan Shepherd, to paint over Atkinson’s mural. Shepherd re-painted a nearly identical copy of the original Water Tank and included his personal signature at the bottom. When Atkinson reached out to the property owner to have his authorship restored, the owner dismissed his concerns, claiming that Shepherd’s mural was not a copy and that Atkinson held no valid copyright in the mural.
Atkinson sued, alleging two claims against Shepherd: copyright infringement and a violation of Atkinson’s rights under VARA.
Litigating the Case
In early 2026, a U.S. district court found Shepherd liable for violating VARA and infringing on Atkinson’s copyright.
In his complaint, Atkinson alleged that Water Tank symbolized Clover and that by creating a near-replica, Shepherd destroyed Atkinson’s work and disappeared his attribution. Atkinson furthered argued that by creating a “virtually indistinguishable” piece, Shepherd willfully copied the original Water Tank.
Shepherd never responded to Atkinson’s lawsuit and failed to offer any evidence that his mural was anything but an original Water Tank replica. Because of Shepherd’s failure to answer, the court entered a default judgment for Atkinson, securing a win for Atkinson and artists across the county.
Result: The Maximum Penalty for “Strong Deterrence”
First, the court addressed Atkinson’s copyright claim. Because Shepherd failed to appear and did not dispute Atkinson’s appraisal evidence, the court awarded Atkinson $8,400 in actual damages for Shepherd’s copyright infringement.
Turning to the VARA violation, the court found a need for strong deterrence and awarded Atkinson $150,000 in statutory damages, the maximum penalty allowed. The court explained that an artist can receive damages for both copyright infringement and VARA, noting that copyright registration was not a prerequisite for recovery under VARA. The court also determined that Shepherd acted willfully and intentionally, noting that Shepherd produced almost an exact replica and painted over Atkinson’s attribution.
Ultimately, the court’s damages award reflects VARA’s central aim: to preserve artists’ rights, protect their artistic integrity and authorship, and deter willful and intentional violations. If you or your business is facing copyright infringement or VARA violations, please contact Kessler Collins’ experienced team of attorneys to assist you in navigating these challenges and protecting your interests.
