Despite a recent decision in favor of municipal and property-developer defendants, a case pending in the Central District of Illinois serves as yet another warning to property developers to seek VARA waivers from artists up front.
In April 2019, 13 artists (the “Artist-Plaintiffs”) brought VARA claims against two defendants, the Town of Normal (the “Town”) and real estate developer Bush Development (together, “Defendants”), in the Central District of Illinois for injunctive and other relief to prevent Defendants’ destruction of a mural (the “Mural”) that had been painted on the exterior of a Town-owned building (the “Building”) with the Town’s permission. The Mural, which the Artist-Plaintiffs and other, non-plaintiff artists created in 2011, takes up approximately half of the Building’s west façade, covering what was previously an “unsightly” brick wall. On May 8, the Artist-Plaintiffs sought a temporary restraining order (“TRO”) to prevent Defendants from taking any action to destroy, distort, mutilate or modify the Artist-Plaintiffs’ artwork in violation of VARA. Defendants did not contest that the Artist-Plaintiffs had VARA rights, but instead insisted that they planned to respect the Artist-Plaintiffs’ rights by preserving and removing the Mural to an as-yet unspecified location at the Town’s expense. Defendants argued that this relocation of the Mural would not violate the Artist-Plaintiffs’ VARA rights unless the Town intentionally damaged the Mural in a way that would harm the artists’ reputations or unless the Mural were a work of “recognized stature” and Defendants intentionally destroyed the Mural or destroyed it through gross negligence.
As previously covered on this blog, the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A (“VARA”), is a United States law protecting certain rights of living visual artists. Under VARA, an artist has the right, among other things, to protect a “work of visual art” of “recognized stature” from destruction—even by the owner of the artwork.
In their TRO application, the Artist-Plaintiffs argued that, because of their strong likelihood of success on their VARA claim and the irreversibility of the planned destruction, the sliding scale of potential harms was in their favor—focusing on their assertion that there was no urgency to the prospective development as the Town had considered development in Uptown Normal for years with little action. The Artist-Plaintiffs also emphasized the public interest at stake by arguing that the development that was to replace the existing Building was divisive in the public view and by pointing out that the very purpose of VARA is to preserve works of visual art for the benefit of the public.
Defendants opposed the TRO application on the ground that the Artist-Plaintiffs “failed to satisfy any of the threshold or balancing phase requirements” articulated by the Seventh Circuit for injunctive relief. The Town relied on the “5Pointz 1” case to demonstrate the proper analysis. In 5Pointz 1, on a motion for preliminary injunction, Judge Block of the Eastern District of New York found in relevant part that: (1) VARA only protects works of art, not a particular site; (2) the 5Pointz artists would not suffer irreparable harm because of the statutory damages available and the fact that their aerosol art would live on in other media from extensive photography and reproduction; and (3) the artwork was on a building scheduled for demolition, and therefore the balance of hardships weighed in favor of the building owner. As a result, Judge Block denied those artists’ application for preliminary injunction. Here, the Town drew parallels between 5Pointz 1 and its case with the Artist-Plaintiffs, arguing that the same considerations apply and seeking the same result. The Town further claimed that no court has held VARA gives artists the right to dictate the terms or location of their artwork’s display.
The Town argued a VARA violation could occur in only two scenarios: (1) if the Town intentionally distorts, mutilates or modifies the artworks in a manner that harms the Artist-Plaintiffs’ reputations or (2) if the artwork is destroyed intentionally or through gross negligence. The safe removal and relocation of the Mural was estimated to cost $100,000—an expense that the Town repeatedly asserted it would undertake. The Town argued that this undertaking is further proof it does not intend to destroy or commit other harm to the art, and as such no valid VARA claims exist.
On June 10, 2019, Judge Joe Billy McDade denied the Artist-Plaintiffs’ motion for a TRO. Judge McDade explained the parties’ situation had passed “beyond the realm” of a TRO. Even if the Artist-Plaintiffs could have shown that they had good cause to receive the 14-day extension allowed under Fed. R. Civ. P. 65(b)(2), over a month had already passed by the time the Court issued its order—more than the 28 days (including the extension) allowed under the Federal Rules of Civil Procedure. Judge McDade explained that, as the circumstances stood when the Artist-Plaintiffs made their TRO application (and as the application was pending), the proper vehicle for relief would have been a preliminary injunction, not a TRO. The court, relying in part on the Town’s assurance that it would give the Artist-Plaintiffs at least seven days’ notice before demolishing the Building, suggested that the Artist-Plaintiffs could file a motion for a preliminary injunction. The court also suggested that if the situation changed (e.g., if Defendants were moving forward quickly with demolition), the Artist-Plaintiffs could again seek a TRO.
As discussed previously on this blog, although Congress enacted VARA in part to strengthen recognition of artists’ rights, we must consider the risk that artists might use VARA claims to improperly delay commercial or residential development or to demand a payment in excess of the commercial value of their work to permit new building to go forward. As Judge Block pointed out in a footnote to his later 5Pointz decision (“5Pointz 2”), disputes such as this may be easily avoided if property owners secure a written waiver of the artists’ VARA rights from the get-go. However, if the artists refuse to waive their rights, or property owners fail to obtain the artists’ written waiver, the question remains—are there any other options? Under VARA, a property owner may remove the work where: (1) the work of visual art can be removed without causing its destruction, mutilation or distortion and (2) the artist has ninety days’ notice of the property owner’s intended action. In this case, the Defendants appeared sensitive to the amount of press and public blow-back generated by recent VARA cases, and assumed the burden of paying for removal of the Mural as opposed to putting the onus on the artists. The fact that the Artist-Plaintiffs nonetheless pursued the VARA claims bolsters Judge Block’s warning to property owners: the only way to avoid these types of disputes is to obtain waivers upfront.
Yet all hope is not lost for the Defendants here. Following the denial of the Artist-Plaintiffs’ TRO application, the Town, on July 2, 2019, filed its Answer to the Complaint, alleging in relevant part that it had received a release and waiver, which would allow it to demolish the Building without infringing on any of the Mural’s artists’ VARA rights. The Town’s Answer indicates that the Town obtained a release and waiver of VARA rights in the Mural from one of the Mural’s artists. Given that the Town made no mention of this release and waiver in its opposition to the TRO, it appears that the Town only recently obtained the waiver. The Town did not specify from whom it obtained the release and waiver—it will be interesting to see if the individual was one of the Mural’s non-plaintiff artists or if one of the Artist-Plaintiffs had a change of heart (perhaps in return for a money settlement). Assuming the waiver is valid, the focus of this case will now likely shift to the dispositive question of whether or not the Mural is a joint work or a collection of individual works.
Jeanine Cryan assisted with drafting this post.
Complaint ¶ 8, Baird et al v. Town of Normal et al, No. 1:19-cv-1141 (C. D. Ill. April 24, 2019) (Dkt. No. 1) (the “Complaint”). The Mural is divided into a grid—the Artist-Plaintiffs alleged that this format gave each artist the ability to exercise artistic control over his or her individual work. (See id. ¶ 29.) The Town denied that allegation and argued instead that the Mural, as a whole, constitutes one work of joint authorship. (Defendant Town of Normal’s Answer to the Complaint ¶ 29, Baird, (C. D. Ill. July 2, 2019) (Dkt. No. 34) (the “Town Answer”).)
 See Plaintiffs’ Memorandum in Support of Motion for Temporary Restraining Order at 1, Baird, (C. D. Ill. May 8, 2019) (Dkt. No. 10).
 Defendant Town of Normal’s Response in Opposition to Plaintiffs’ Motion for a Temporary Restraining Order at 1, 7, Baird (C. D. Ill. May 10, 2019) (Dkt. No.17) (“Town Opp’n”).
 Id. at 16.
 Id. at 7 (pointing to the Town’s Historic Preservation Commission vote against demolition and a local anti-demolition petition boasting over 3,900 signatures).
 Id. at 17.
 Town Opp’n at 10. In the Seventh Circuit, the party seeking preliminary injunctive relief must make a threshold showing that: (1) absent such relief, it will suffer irreparable harm in the interim before a final resolution; (2) it has no adequate remedy at law; and (3) it has a reasonable likelihood of success on the merits. If the plaintiff meets that threshold, the court moves to the second phase and considers: (1) any irreparable harm the moving party will endure if the preliminary relief is denied versus any irreparable harm to the nonmoving party if it is granted and (2) any effects that the grant or denial of the preliminary relief would have on the public interest. The court weighs the balance of potential harms on a “sliding scale” against the moving party’s likelihood of success. The more likely the moving party is to win, the less the balance of harms must weigh in its favor and vice versa. See, e.g., Girl Scouts of Manitou Council, Inc. v. Girl Scouts of USA, Inc., 549 F.3d 1079, 1085-86 (7th Cir. 2008); Turnell v. CentiMark Corp., 796 F.3d 656, 661-62 (7th Cir. 2015).
 Town Opp’n at 10-11; 5Pointz 1, 988 F. Supp.2d at 226-227.
 Town Opp’n at 8, 10-11.
 Id. at 10-11.
 Id. at 17.
 Order Denying Plaintiffs’ Motion for Temporary Restraining Order at 1, Baird, (C. D. Ill. June 11, 2019) (Dkt. No. 27).
 Id. at 2-3.
 Id. (advising that the Artist-Plaintiffs could file a motion for a preliminary injunction “largely drawn from their request for a temporary restraining order”).
 Id. at 2.
 Cohen v. G&M Realty L.P., 2018 WL 851374, at *19 n.22 (E.D.N.Y. Feb. 12, 2018).
 17 U.S.C. § 113(d)(2).
 Town Answer at 4.