Once a Bus, Always a Bus? The Visual Artists Rights Act is Stuck in First Gear.

Photo by wang loko on Unsplash

Burning Man is built on the principle of “Radical Self-expression.” But when that expression takes physical form, how far does the law allow it to go? Burning Man is a “community and global cultural movement” that gathers in Black Rock City, Nevada, every year. The week-long event sees nearly 70,000 participants, and is widely known for its eclectic assortment of large-scale art installations, the largest of which is “The Man” that is burned at the festival’s conclusion. Participants are also encouraged to create and operate “Mutant Vehicles,” which are motorized works that have been modified to show “little or no resemblance to their original form, or to any standard street vehicle, or is out of context from its normal setting (a pirate ship or space ship on the desert, for example).” 

One such mutant vehicle, the La Contessa, a school bus turned 16th-century Spanish galleon pirate ship, recently became the center of a legal dispute. After the vehicle was deemed unsafe and destroyed, the artists sued, alleging that the destruction violated their rights under the Visual Artists Rights Act of 1990 (“VARA”). The dispute ultimately turned on a narrow but consequential question of whether La Contessa was protected, purely aesthetic “visual art,” or if it was functional “applied art.” The court re-examined the narrow application of VARA and the result- that the bus was applied art, presents a unique danger for modern artists across the nation.

As interactive art installations become central to the modern experience, “visual art” remains narrowly defined under VARA to works that are purely aesthetic. But when artistic expression incorporates movement, structure, or utility, it is at risk for losing statutory protection altogether. The current judicial interpretation of "applied art" fails to account for the modern evolution of interactive and immersive art, creating significant legal and business risks for artists, collectors, and art festival organizers.

I. Legal Framework.

While the United States has long protected the economic interests of artists in their works, it was not until the enactment of the Visual Artists Rights Act of 1990 (“VARA”), that artists found statutory solace in the protection of their reputational and creative interests. Such interests are protected under what is known as moral rights. Moral rights, or droit moral, are not tied to the economic foundations of property law, but are instead inherent to the creation of art itself. Traditionally, these rights were considered to be immutable “interests” that remain tethered to a work even through subsequent transfer, sale, and loss. 

The global artistic community consistently recognizes four pillars of moral rights: the right of integrity (preventing deforming alterations); the right of attribution (identifying the creator); the right of disclosure (controlling when a work is made public); and the right of retraction (withdrawing a work from the public eye). These rights, which permit the artist to retain control over the use, presentation, and treatment of their work, provide a framework for an artist to protect both the identity of their creations and their reputation as an artist. By providing moral rights to artists, the law acknowledges that a creator’s personality is inextricably linked to their output, transforming a mere commodity into a protected extension of the artist’s professional and personal identity. 

Globally, moral rights have a deep-rooted basis in cultural protection and the promotion of creative expression. Originally developed under French copyright law as a “right of personality,” these protections formed a core tenet of modern intellectual property law. They were globally recognized by the 1886 Berne Convention, which permitted authors to “claim authorship of the work and to object to any distortion, mutilation or other modification” of their art. Today, 182 countries adhere to the Berne Convention, and grant moral rights to artists through national protections. By joining the Berne Convention, each country must implement domestic laws consistent with the convention’s core principles, but the nations retain discretion to define the scope of those protections, resulting in moral rights regimes that range from narrow to expansive. The United States protection of moral rights was codified in 17 U.S.C. Section 106(A), also known as VARA. 

An artist falling within the protection of VARA may assert his or her rights to claim authorship of their work, prevent the use of their name as the author of any work of visual art they did not create, and disclaim authorship of a piece that has been modified or destroyed. Specifically, VARA recognizes that visual art “meet[s] a special societal need [] and … serve[s] an important public interest” by preserving the nation’s cultural heritage. While VARA appears broad on its face, it is intentionally narrow in effect to prevent a collision with fundamental American property rights.

The primary danger of expansive moral rights is the grant of a “veto power” to artists that could paralyze the commercial use of property. A fundamental tenet of American property law is that owners should be free to improve, sell, or dispose of their assets. If VARA is too expansive, it would essentially grant artists a permanent easement over physical property. A business that purchases a custom-designed fleet of vehicles or a specially commissioned piece of architecture would find its hands tied—unable to renovate, repair, or scrap the asset without facing a potential lawsuit. To combat this concern, VARA has been explicitly limited from shielding commercial endeavors. Works for hire, works made for or commissioned by another, are not protected by VARA, even if the art is inherently a product of the creative process. 

Congress also recognized the potential impact of expansive VARA protections on creative industries that rely heavily on collaboration, adaptation, and modification. Artistic works like books, movies, and software are iterative and collectively produced, often requiring ongoing revision, editing, collaboration, and distribution. If VARA protections applied to artists in these industries, it could result in individual creators blocking changes, restricting dissemination, or preventing the commercial use of works involving multiple contributors. As a result, Congress expressly limited VARA by restricting its protections to narrowly defined works of visual art.

The judiciary has further limited the scope of the application of VARA– to avoid granting excessive control to creators in industries characterized by transformation and functional design. If VARA protections permitted artists to control the modification, dissemination, and destruction of their art, creatives could exercise that power in commercial art or industrial design settings, making ordinary business operations, such as repair, redesign, or disposal, legally complex and impracticable. As a result, in Pollara v. Seymour, the Second Circuit established a threshold test to apply VARA: a work must be “of recognized stature” and its “objective and evident purpose” must be purely artistic expression. In practice, this limited VARA’s application to fine art intended for gallery or museum-style display, excluding promotional displays or installations. The threshold test was further refined in Carter v. Helmsley-Spear, Inc., which clarified that VARA does not protect “ applied art” i.e., objects that serve a “utilitarian function” or have a practical, functional, or useful purpose beyond the aesthetic. This created a clear line; VARA only applies to “pure” art, where the aesthetic value is the exclusive purpose of the work. 

While the Congressional and judicial limitations served to protect the free flow of commerce and the rights of property owners, it left a massive “grey area” for modern, immersive, and interactive art that blurs the line between sculpture and utility. The remaining question of how to handle these hybrid works was later resolved by the Ninth Circuit in Cheffins v. Stewart.

III. The Modern Application of VARA: La Contessa

In the most recent case interpreting art under VARA, the Ninth Circuit in Cheffins v. Stewart confronted the issue of whether a replica of the 16th century Spanish galleon La Contessa constituted visual art for purposes of VARA. Artists Simon Cheffins and Gregory Jones built La Contessa, a replica Spanish galleon constructed around an old school bus, for its debut at the Burning Man festival in 2002. At multiple festivals and events, it was used for weddings, performances, and as a centerpiece for activities. Ultimately, it was banned from the festival as unsafe for transportation, and was moved to a plot of land. Stewart later purchased the land, burned the wooden enhancements, and sold the bus to a scrap metal dealer. 

The artists of La Contessa sued on the basis that his destruction violated VARA. The court re-examined the narrow applications and historical purposes of VARA before ultimately ruling for the defendant on summary judgment. The majority held that an object is not subject to the protections of VARA if it has been transformed “such that its utilitarian functions cease.” In a concurring opinion, Judge McKeown promoted a different test, focusing on “whether a work is primarily directed to a utilitarian purpose.” More simply, whether the artwork’s primary purpose is to serve a useful function. This test is more flexible than the majority test, taking into account artistic intent, to determine the purpose of the work, rather than its objective functions. Under both tests, La Contessa was deemed to be applied art: The majority concluded that it was functional because it was built on top of an operational school bus; the concurrence concluded that the primary purpose of La Contessa served “the utilitarian purpose[s]” of a stage, mode of transportation around the Burning Man site, and restaurant. 

The impact of Cheffins v. Stewart is that artists that engage in hybrid creation, developing art that serves both an aesthetic purpose and utilitarian use, are left without recourse when their work is altered or destroyed. While protecting property alienability is important to maintaining market efficiency and ensuring that commercial assets do not become “dead capital" burdened by permanent legal easements, the current judicial landscape creates a precarious reality for creators. By narrowly construing VARA applications, artists are limited to strict, traditionalist confines of “pure art” or risk their works and reputations falling into a legal “no-man’s land” where their creative output is treated as a disposable commodity. This narrow construction forces a binary choice that fails to reflect modern creative practices. If an artist integrates their work into a functional object (like the La Contessa galleon), the law essentially strips them of their moral rights the moment the object serves a utilitarian purpose. As Silicon Valley and artistic hubs across the United States begin to develop an immersive “Experience Economy” with art installations that invite audiences to sit, climb, or engage, the legal reality remains stuck in a traditionalist view of fine art. 

IV. IV. Business and Market Implications and What Can Be Fixed

In the modern art market, the narrow interpretation of VARA creates a very real risk for galleries and artists. Large-scale interactive art installations often incorporate lighting systems, seating, structural frameworks, tactile elements, mobility, and digital integration. For example, consider businesses like the Exploratorium in San Francisco, where exhibits are meant to be touched and activated, not just observed. The problem is not the interactions themself, but when courts must decide whether an immersive work is a useful sculpture or merely visual art. If interactive art pieces become functional, they will lose statutory protection from being destroyed or mutilated, and this risk may lead to a decline in immersive installations.

For some businesses, like collectors and developers, or even Burning Man festival organizers, the uncertainty under VARA complicates valuation for insurance. Although there is presently little litigation on the issue, insurers may be wary of valuing and insuring pieces that are at a higher risk of being destroyed. Because of a lack of statutory protection and risk of damage from pure misuse of applied art, artists may find it hard to insure their artistic assets. 

The current applied art framework reflects a rigid and outdated view of artistic purpose. By forcing courts to determine whether a work is purely aesthetic or functional in nature, judges have become art critics. The increasingly modern trend of immersive art exhibits contain pieces that may serve a partly functional purpose, and are meant to be climbed on, used, entered, or activated. Under the majority approach set forth in Cheffins v. Stewart, any useful function would leave these pieces unprotected. Instead, a more flexible approach to interpreting VARA would better protect expanding modern interactive art trends. The more nuanced test from the concurring opinion in Cheffins suggests a focus on artistic intent and primary purpose rather than just mechanical capability. The primary purpose rule better fits how immersive art is being used and experienced. Under this test, immersive exhibits still grounded in “art” experience would remain protected by VARA, while the competing interests of American property law, collaborative artistic industries, and functional aesthetic design would still be safeguarded by excluding works whose dominant objective is utilitarian rather than expressive. By asking whether function is incidental to artistic expression, rather than dispositive of it, courts could avoid rigid categorical exclusions while preserving VARA’s core purpose: protecting the integrity of works of visual art. Such an approach acknowledges the contemporary shift of art inviting participation, without surrendering its expressive character, and ensures that legal doctrine shifts alongside artistic practice, without remaining in first gear.

As artists become more creative and dive into new mediums that include functionality, the gap between statutory protection and artistic risk widens. Even though VARA was enacted to preserve cultural heritage and protect the rights of artists, decisions like Cheffins illustrate how easily functional works can lose that protection. Updating VARA to account for immersive and interactive works would align that purpose with modern practice. If statutes continue to treat immersive and functional works as disposable objects, the risk will impact more than just artists; it will threaten the markets, institutions, and cultures that depend on creative innovation. Burning Man celebrates Radical Self-expression, maybe it is time for the law to “speed” up. 

*The views expressed in this article do not represent the views of Santa Clara University.