Victory for VARA: Federal Court Awards Artist Maximum Damages for Willful Violation of Moral Rights

Key Takeaways

• Damages awards for Visual Artists Rights Act (“VARA”) violations are not precluded by copyright infringement damages awards. The plaintiff’s VARA award was in addition to an award of actual damages for copyright infringement based on a fair market appraisal of the original work.
• Significant remedies are available under VARA for willful violations. The court in this case awarded the maximum allowable damages per work under VARA for a willful violation of the plaintiff’s rights.
• VARA does not have a registration prerequisite for statutory damages. Whereas plaintiff’s federal copyright issued after the infringement in the case, which precluded copyright statutory damages for infringement, VARA has no such requirement.
• The court leveraged enhanced damages to deter future willful violations, signaling the importance of artists moral rights. The court’s enhanced damages award underscores VARA’s purpose of protecting artistic integrity and deterring conduct that constitutes abuse of VARA holders’ rights.

A recent decision from the United States District Court in the District of South Carolina represents a significant win for artists’ moral rights under VARA. The court’s damages award in an amount totaling $158,400 for the defendant’s copyright infringement and willful violation of VARA underscores the important protections afforded to artistic integrity under the statute, particularly where statutory damages aren’t available under copyright law.

Case Background: Atkinson v. Shepherd

Todd Atkinson, the plaintiff and well-established professor of art, was commissioned to paint a Clover, South Carolina, building mural completed in 1982 and named Water Tank. The case arose when defendant artist Chan Shepherd was hired by a third party to replicate the Water Tank. Shepherd proceeded to paint overtop Atkinson’s building mural and produced an almost exact replica of the original work. Shepherd additionally replaced Atkinson’s attribution with his own name, essentially destroying the original work and Atkinson’s copyrights, which were retained by Atkinson since its creation. Atkinson also owns a federal copyright registration for the Water Tank that was issued in March 2024, after the infringement that was the subject of the lawsuit.

The complaint stated, among other things, the well-recognized stature of the Water Tank as a tremendous success and recognizable symbol of downtown Clover, South Carolina. It also positioned the defendant’s infringing work as “virtually indistinguishable” from Atkinson’s original Water Tank and highlighted defendant’s willful copying and false designation of the work as his own. Shepherd failed to answer Atkinson’s complaint and subsequent motions, and the court ordered default judgment against him for federal copyright infringement and violation of Atkinson’s VARA rights in March 2025.

The Court’s Damages Award

After its entry of default judgment against the defendant, the court assessed whether Atkinson was entitled to damages for both causes of action.

First, the court assessed Atkinson’s request for actual damages incurred as a result of the infringement under federal copyright law. Atkinson did not seek copyright statutory damages in the case due to the infringing conduct having occurred prior to the issuance of his federal copyright registration. Absent any evidence presented by the defendant to the contrary, the court accepted Atkinson’s fair market appraisal evidence to award actual damages in the amount of $8,400, emphasizing that actual damages are typically “broadly construed to favor victims of infringement.”

Second, the court addressed Atkinson’s request for statutory damages under VARA. It ultimately awarded Atkinson $150,000 — the maximum statutory damages per work allowable under the statute for willful violations. The court noted that damages for copyright infringement do not preclude additional damages for VARA violations, and that VARA carries no registration prerequisite for a damages award. In reaching its ultimate award, the court found that the defendant’s conduct was willful and intentional where defendant painted almost an exact copy of the original work, erased Atkinson’s attribution, and failed to appear in the lawsuit. Notably, the court also agreed with Atkinson’s assessment of the need for an enhanced damages award to achieve a critical goal of VARA — deterring willful abuse and destruction of artistic integrity.

Practical Implications and Considerations

• Artists should consider asserting VARA claims (if not waived) in addition to copyright infringement claims if artistic integrity and attribution are implicated, especially where there are no registration hurdles and damages awards can be significant.
• Where there appear to be willful violations of VARA, rights holders should gather clear willfulness evidence and highlight the deterrence rationale underpinning VARA when requesting damages.
• Appraisals of artwork can be useful in copyright infringement suits for substantiating actual damages claims.
• Parties commissioning artistic works should consider how artist VARA rights might impact their possession and use of the art in the future if not waived by the artist.