VARA Claim for the Right of Paternity

David Ascalon, an Israeli-born sculptor living in Cherry Hill, N.J., create a Holocaust memorial in Harrisburg, Pa. after the Jewish Federation of Greater Harrisburg selected his design for the memorial in 1993.

In 2010, Ascalon sued the federation and the Harrisburg Department of Parks and Recreation in federal court in July under the Visual Artists’ Rights Act (VARA), 17 USC 106A, alleging that the federation hired a contractor to refurbish the monument and that the contractor removed Ascalon’s name off the sculpture. VARA allows creators of public display art to protect their works from alterations.

VARA provides:

(a) Rights of Attribution and Integrity.— . . . the author of a work of visual art— (1) shall have the right—

(A) to claim authorship of that work, and

(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;

On February 7, 2011, the federation and Ascalon issued a joint statement saying that the federation will allow Ascalon to replace the stainless steel wire with rusty steel wire and put his name back on his sculpture.

Parts of the Joint Statement read:

SETTLEMENT REACHED IN CASE UNDER THE VISUAL ARTISTS RIGHTS ACT OF 1990 (VARA), ASCALON v. DEPARTMENT OF PARKS AND RECREATION, et al.

HARRISBURG, PA –In July 2010, the New Jersey artist David Ascalon filed an action in U.S. District Court for the Middle District of Pennsylvania asserting that his rights under the federal Visual Artists Rights Act of 1990 (VARA) had been violated with respect to a sculpture he created for the Jewish Federation of Greater Harrisburg: a Holocaust Memorial on the banks of the Susquehanna River in Pennsylvania’s state capital, which was installed in 1994.  The complaint alleged that Ascalon’s rights under VARA, which limits how an artwork may be altered or disposed of, were violated by restoration of a decaying element of the original sculpture in which a rust-colored “barbed wire” serpentine element was replaced with stainless steel.

The substance of the settlement provides the sculpture will be retrofitted in a manner that upholds the artist’s original intent at minimal costs to the defendants.  The original artist shall be provided access to the sculpture to remake the “barbed wire” serpentine element in a highly durable rust-colored steel, and the original artist’s name shall be restored to the sculpture.  The parties are pleased that future generations will be able to view the restored Memorial and remember and pay proper respect to the 12 million souls that perished at the hands of agents of intolerance, the Nazi Regime.

The attorney for David Ascalon is Jason B. Schaeffer, Esq. of J.B. Schaeffer Law, LLC of Cherry Hill, New Jersey.  The attorney for the Federation is Harvey Freedenberg of McNees Wallace & Nurick LLC of Harrisburg.

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