T: 617.556.0007 F: 617.654.

1735
101 Arch Street, 12th Floor, Boston, MA 02110

TO: Mr. Michael J. Canales, City Administrator (By Electronic Mail Only)

FROM: Joel B. Bard, Esq.

RE: Application of the Visual Artist Rights Act to Harmonic Bridge

DATE: July 24, 2020

Question
Whether federal law protects the Harmonic Bridge sound art installation from
modification?

Short Answer
The Harmonic Bridge installation may qualify as a “sculpture,” as that term is defined
under the Visual Artists Rights Act (VARA), and as such, would be entitled to protection from
modification.

Detailed Analysis

1. Background
You have asked for an opinion regarding the application of federal arts and copyright law
to the Massachusetts Museum of Contemporary Art’s (“MoCA”) Harmonic Bridge installation
under the Marshall Street Overpass in the City. By way of background, based on the materials
you have forwarded, I understand that Harmonic Bridge was created by two artists in 1998, but
that the piece is “commissioned, owned, and maintained” by MoCA. Among the documents I
have reviewed is the agreement between MoCA and the artists under which the Harmonic Bridge
installation was commissioned.
I further understand that in 2012-2013, murals depicting Mill Children and Dolls
(frequently referred to as the “Pillar Art”) were painted on the pillars and columns within the
Harmonic Bridge installation, but that those murals were subsequently painted over by MoCA. I
have been informed that some residents and officials are interested in having the Pillar Art
repainted or restored, and that questions have arisen as to whether Harmonic Bridge is protected
legally from alteration or modification in this manner.
In my opinion, as discussed below, whether Harmonic Bridge constitutes a “sculpture”
under VARA is a fact-specific inquiry under the governing case law. Based on my review of
relevant cases, it is my opinion that a court could find Harmonic Bridge to be a “sculpture”
which would qualify for protection under VARA.
2. Application of VARA to Harmonic Bridge
The Visual Artists Rights Act (VARA) is a federal law enacted in 1990 to protect visual
artists’ rights in their original works of act. Specifically, VARA grants to artists, inter alia, the
right to prevent the intentional distortion, modification, or destruction of their work, or to recover
damages for copyright violations, even when the original work is no longer in the artist’s
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possession, as is the case here. See generally Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 81 (2d
Cir. 1995) (discussing extensive history of VARA). VARA affords protection only to creators of
works of visual art, which is defined by statute to include only paintings, drawings, prints,
sculptures, or photographs produced for exhibition purposes, all of which must exist in a single
copy or limited edition of 200 copies or fewer. 17 U.S.C. § 101. VARA, however, also defines
what does not constitute a work of visual art. For example, VARA does not protect “works
made for hire,” “applied art,” “audiovisual works and motion pictures,” and several other defined
categories of art not particularly relevant here. 17 U.S.C. § 101.
In this regard, Congress sought “to distinguish works of visual art from other media, such
as audiovisual works and motion pictures, due to the different circumstances surrounding how
works of each genre are created and disseminated.” Carter, 71 F.3d at 84, citing H.R. Rep. No.
514, at 9. When interpreting whether a particular piece falls within VARA’s limited definition
of “works of visual art,” Congress has directed parties and the courts to “use common sense and
generally accepted standards of the artistic community in determining whether a particular work
falls within the scope of the definition.” Id.
In this case, then, whether the Harmonic Bridge installation constitutes a work of visual
art and is protected under VARA requires a factual analysis of its features and the application of
those facts to the prevailing case law. As pertinent here, the question is whether Harmonic
Bridge qualifies as a “sculpture” within the meaning of VARA.
A. Sculpture
VARA deems a sculpture to be a protected work of visual art if it is “existing in a single
copy … or in multiple cast, carved, or fabricated sculptures of 200 or fewer ….” 17 U.S.C.
§ 101. Works which contain multiple components, such as Harmonic Bridge’s numerous
structures, can still constitute a single sculpture under VARA. See, e.g., Pavia v. 1120 Ave. of
the Americas Assocs., 901 F. Supp. 620, 627-628 (S.D.N.Y. 1995) (“a number of sculptural
elements including … interactive art” can constitute “a single work of art whose elements are
interrelated”).
Here, there are physical components of Harmonic Bridge that comprise the installation,
such as the concrete sound tubes and speakers that were installed as permanent design fixtures.
In painting over the Pillar Art, MoCA stated that they sought “to restore the space under the
bridge in line with the original intent of the Harmonic Bridge artists,” which was to “focus one’s
attention on the majestic columns, the grand scale of the area, which, combined with the droning,
brings to mind a gothic nave.” The main component of the piece, as described in the artists’
agreement with MoCA, is the audio experience of hidden harmonies built into the industrial
environment. The artists describe it as a “sound art installation piece.” As discussed, the piece
also incorporates permanent design features and structural elements, such as the pillars and
columns, which creates both an auditory and visual experience.
The courts have observed that “[a]rtists may work in a variety of media, and use any
number of materials in creating their works,” such that the question “whether a particular work
falls within the definition should not depend on the medium or materials used.” Carter, supra. In
my opinion, the question of whether or not Harmonic Bridge is a “sculpture” is not constrained
by the particular materials used in this work, which include the introduced sound technology, the
blocks and containers, and physical elements of the under-bridge environment, all of which were

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designed by the artists. Rather, all such materials can contribute to the piece being a single work
of art.
Coincidentally, the U.S. First Circuit Court of Appeals, in a case involving MoCA, has
discussed installations incorporating numerous objects and elements. You may recall the dispute
between MoCA and an artist, more than a decade ago, regarding an unfinished installation for
the large gallery in Building 5. In the ensuing litigation, the court held that an art installation
involving numerous media components, such as “a movie theater, a house, a bar, a mobile home,
various sea containers, a bomb carousel, and an aircraft fuselage,” constituted an unfinished
sculpture, and thus was entitled to protection under VARA. See Massachusetts Museum Of
Contemporary Art Found., Inc. v. Buchel, 593 F.3d 38, 44, 50-51, n. 7. (1st Cir. 2010).
Conclusion
Based on the court’s above finding that the sprawling assemblage of objects in Buchel
was a “sculpture” under VARA, it is my opinion that a court likely would find that the use of
various objects and media in Harmonic Bridge to create a sound and visual experience in the
physical under-bridge environment similarly is a sculpture, or sculptural installation, protected
under VARA.1
Should the City decide to reinstall the Pillar Art paintings, litigation might ensue over
whether such modification violates VARA. If the matter were to be litigated and a court did
determine that Harmonic Bridge is a sculpture, it is my opinion that repainting the Mill Children
art in this setting would constitute a modification of that sculpture without the artists’
permission, in violation of VARA. See Buchel, supra at 54 (VARA or copyright violation
typically turns on whether the work was modified “without [the artist’s] permission”).

1
A court would also evaluate the generally accepted standards in the artistic community in determining
whether Harmonic Bridge constitutes a sculpture. See Carter, 71 F.3d at 84. In this regard, I note that many
scholars have written about the methodology of exploiting sound in contemporary sculptural practices, which is
often referred to as “sound sculpture,” and is no less defined as a sculptural experience in the artistic community.
See, e.g., J. Grayson, Sound Sculpture: A Collection of Essays by Artists Surveying the Techniques, Applications,
and Future Directions of Sound Sculpture (1975); F. Baschet, Sound Sculpture: Sounds, Shapes, Public
Participation, Education (MIT Press, 1987).

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