Two recent developments promise to shed more light on the legal status of unauthorized street art, which we explored earlier this year in our post Unchartered Territory: Enforcing an Artist’s Rights in Street Art.

Cohen v. G&M Realty L.P., No. 13CV05612, 2017 WL 1208416 (E.D.N.Y. Mar. 31, 2017).

As discussed in our earlier post, in November 2013, Judge Block of the Eastern District of New York declined to issue a preliminary injunction under VARA that would have stopped property owners’ demolition of 5Pointz “graffiti Mecca” in Long Island City, New York to make way for a residential development.1  In Cohen v. G&M Realty L.P, the plaintiffs argued that they were empowered to prevent the destruction of their mural under the VARA provision that allows an artist to prevent the destruction of his or her work if work is of “recognized stature.”2  The court found that some of the works in the 5Pointz composite piece might qualify as works of “recognized stature,” but otherwise did not carry through with a VARA analysis. Instead, the court declined to issue a preliminary injunction based on its finding that the plaintiffs-artists failed to demonstrate irreparable harm because money damages would be sufficient to compensate them.

The case then moved forward on the artists’ claim for damages.  The defendants moved for summary judgment, contending that the plaintiffs had not made a prima facie case for the “recognized stature” of the 5Pointz murals.  On March 31, 2017, the court denied the defendants’ motion for summary judgment dismissing the VARA claim, allowing the matter to proceed to trial on that claim.  The defendants had argued in part that “the plaintiffs’ expert report focused on the ‘recognized stature’ of the artist, rather than the work itself, in contravention of VARA.”3  The district court rejected this argument, noting that courts have employed various methods to determine “recognized stature” under VARA, including inferring a particular work’s stature based on its creator’s reputation.  The court concluded that, “[w]ith VARA silent as to how a work’s stature may be pegged, acceptance of such methodology in this case has the added benefit of honoring VARA’s broad purpose.”4

Judge Block also rejected the defendants’ contention that the methodology underlying the report on “recognized stature” submitted by the plaintiffs’ expert did not satisfy the minimum standard under the Supreme Court’s Daubert test.  The court found that the plaintiffs’ expert relied on a variety of factors in reaching her conclusion regarding the stature of the plaintiffs’ work, including:

Cohen’s multiple commissions from such entities as Coors, Heineken, Swatch, and Deutsche Bank; another’s commissions from some of Brazil’s famous brands; a third one’s hiring by celebrity clients and a public park; the opinions of leading museum professionals and other artists; the individual artist’s social media followers and their works’ Google hits; flattering newspaper accounts in The Boston Globe, The New York Times, and New York Magazine; academic approval; private and public exhibitions of the artists’ other work throughout the United States and other nations; numerous awards, including induction in the Graffiti Hall of Fame; and more.5

Judge Block found that, by citing such evidence, all of which was relevant to the question of stature, the plaintiffs’ expert adequately explained the documents she reviewed, relevant industry customs and practices, and the general bases for her opinion.  The expert thus satisfied the Daubert minimum, and her opinion would be admissible in evidence for evaluation by the jury, even though the court expressed “some skepticism” regarding its “cogency.”

It would thus appear that—absent an eleventh-hour settlement—we will now have our first VARA trial testing whether unauthorized street art is legally protected from destruction by the owner of the site where the unauthorized art was situated.

Thrasher v. Siegel, No. 2:17-cv-03047 (C.D. Cal. April 24, 2017).

On April 24, 2017, muralist Monte Thrasher brought suit in Los Angeles against various individual and corporate defendants alleging that they had painted over his well-known Six Heads mural in violation of VARA.  Thrasher began working on the Six Heads mural—located on an exterior wall of a building in the Los Feliz neighborhood of Los Angeles—in 1992, and thereafter periodically retouched the mural.  According to Thrasher’s complaint, the defendants painted over the mural in 2014, without first obtaining Thrasher’s permission, so that another mural (commissioned by the occupant of the building) could be painted on the same surface.  Thrasher argues that, by painting over his mural—which included his name and contact information—the defendants infringed his rights of integrity and attribution, in violation of 17 U.S.C. § 106A.  The recently filed complaint does not, however, allege that the mural was of “recognized stature” and therefore protected from destruction.

Given the limited judicial guidance on VARA’s application to unauthorized art, whether and how the Central District of California addresses Thrasher’s claim will be of great interest.

1. Cohen v. G&M Realty L.P., 988 F. Supp. 2d 212 (E.D.N.Y. 2013).
2. Id. at 215.
3. Cohen v. G&M Realty L.P., No. 13CV05612FBRLM, 2017 WL 1208416, at *3 (E.D.N.Y. Mar. 31, 2017).
4. Id.
5. Id.