'Promotional Materials' Excluded from Protection Under the Visual Artists Rights Act, R. Eric Gaum, Esq.

In the recent case of Kleinman v. City of San Marcos, the Fifth Circuit applied the "promotional material" exemption to the Visual Artists Rights Act (VARA) when it ruled that the Act does not protect "any merchandising item or advertising, promotional, descriptive, covering, packaging material or container." The Court also rejected the appellants' constitutional and statutory claims that the wrecked car used as promotional material is an expressive artwork and that interference with its display violated their rights under the First Amendment.