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Burning Man's La Contessa Is Not Visual Art Under VARA

By Jonathan R. Tung, Esq. | Last updated on

The legendary La Contessa which once started off life as a school bus but later transformed into a model replica of a 16th century Spanish galleon did not qualify as visual art under the federal Visual Artists Rights Act and other implicated Nevada laws, the Ninth Circuit ruled.

For those who can't remember, La Contessa lasted about four years at the festival until she was banned because her "unsafe driving practices far exceeded community tolerance and out-weighed the visual contribution [she] made." What a bunch of party poopers.

La Contessa's Maiden Voyage

The La Contessa replica Spanish galleon was originally created by musicians Simon Cheffins and Gregory Jones by taking an old school bus and adding masts, a deck, a facade, and rigging. It was assembled at the Burning Man Festival in 2002, which is held in Nevada's Black Rock Desert. The event brings musicians, hippies, counter-culture types, and Bay Area residents. The ship was used to hold weddings, poetry readings, and other such merry-making.

Eventually, lawyers got involved and La Contessa had to be banned from the events festivities because it posed a danger. Apparently, the visual contribution the ship represented didn't outweigh the danger to the community. So the ship was carted away and stored on private property. The owners notified Burning Man to move La Contessa, or else.

A few years later, the owner torched La Contessa for her scrap metal. The plaintiff-creators sued under Nevada law, but more interestingly, the Visual Artists Rights Act, in an attempt to bolster legal damages against the owner.

Functional, not Visual

Like the courts below it, the Ninth Circuit agreed that La Contessa started out her life as a bus and also retained her ability to move about as a transportation platform. Thus, she retained her innate function as a bus even though she was "applied art" -- not as a visual work of art, say like David, which just started out as slab of marble. It is true that VARA does not exclude all functional pieces of art from its protections; but the main focus should be the current usability of the art in comparison to its original use. Here, the "boat" could still drive, and that was all that mattered.

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