On February 12, Judge Frederic Block of the Eastern District of New York awarded $6.75 million in statutory damages to the aerosol artists of “5Pointz,” agreeing with the jury’s advisory finding that property developer Jerry Wolkoff violated those artists’ “right of integrity” under the Visual Artists Rights Act (“VARA”).

As previously covered on this blog, VARA’s right of integrity grants a visual artist the right to prevent the destruction of her work of art so long as that work has achieved “recognized stature.”  Here, the court followed the test announced by a district court in Carter v. Helmsley-Spear, Inc. for establishing “recognized stature” under VARA, whereby a plaintiff must show, first, that the artwork at issue has “stature,” meaning that it is “viewed as meritorious,” and, second, “that this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society.”[1] In determining that 45 out of the 49 works in question had achieved recognized stature, Judge Block considered expert testimony as well as evidence of such factors as the artists’ recognition outside of their work on 5Pointz, “social media buzz” about the works, and whether the works had been selected for long-term display by lead plaintiff Jonathan Cohen in his role as quasi-curator of 5Pointz.[2] While Judge Block stressed that “expert testimony is not the sine qua non for establishing that a work of visual art is of recognized stature,” he gave substantial weight to the testimony of plaintiffs’ expert regarding the technical skill employed in the creation of each work, the importance of 5Pointz as an aerosol art mecca, interest in the works from art world academics and professionals, and her own professional opinion that all 49 works were of recognized stature.[3]

In awarding damages, Judge Block rejected the plaintiffs’ calculation of actual damages because the plaintiffs’ expert failed to account for the cost (or even practicality) of removing the works which had been painted directly onto the 5Pointz walls; did not provide sufficient evidentiary justification for the valuation for each work; and did not consider the narrow market for works as large as the 5Pointz works.[4] While concluding that the artists had failed to prove actual damages, Judge Block underscored the importance of statutory damages to this area of law where actual damages are often difficult to calculate – and found that plaintiffs had earned the maximum amounts of statutory damages allowed under the Copyright Act for willful infringement of their rights.[5]

In assessing statutory damages, Judge Block applied a six-factor test in which he analyzed “(1) the infringer’s state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer’s cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.”[6] Judge Block found that the first factor weighed heavily in the plaintiffs’ favor due to Wolkoff’s willfulness in destroying the works.[7] Though Judge Block stated that the second factor is not a clean fit for a VARA case, he found that Wolkoff indirectly profited by pushing the development project forward in the face of the VARA lawsuit – and directly profited by charging licensing fees to film at the site – and that therefore this factor also weighed in the plaintiffs’ favor.[8] The third factor likewise tilted toward plaintiffs because the value of 5Pointz to their careers was significant – albeit difficult to quantify – and thus 5Pointz’s destruction was a loss.[9] With regard to the sixth factor, Judge Block found that the balance of Wolkoff’s “problematic conduct” on one side and plaintiffs’ “dignity, maturity [and] respect” on the other tilted this factor decidedly in plaintiffs’ favor.[10]

Most critically, however, Judge Block identified the fourth factor – the deterrent effect on the infringer and third parties – as “perhaps the most important factor in the case,” going on to elaborate:

Without a significant statutory damages award, the preservative goals of VARA cannot be met. If potential infringers believe that they can violate VARA at will and escape liability because plaintiffs are not able to provide a reliable financial valuation for their works, VARA will have no teeth.[11]

Again pointing to Wolkoff’s lack of remorse, and citing Wolkoff’s conduct and testimony as demonstrating that he was “singularly unrepentant” and “remain[ed] undeterred,” Judge Block concluded that this fourth factor “could not cut more strongly in favor of a high statutory damages award.”[12] At least twice, Judge Block noted that the value of the site had increased from $40 million to $200 million once Wolkoff had succeeded in obtaining a zoning variance to permit his redevelopment, and this doubtless played a role in the court’s calculation of an appropriate deterrent.[13]

While Judge Block maintained an even-handed tone throughout his 50-page opinion (plus 50 pages reproducing the artwork in question), there was no mistaking that his decision was greatly influenced by what he termed the “insolence” that Wolkoff had displayed both in and out of court.[14] Plainly, Judge Block was offended by Wolkoff’s precipitous decision to whitewash the walls of 5Pointz for no apparent reason just eight days after Judge Block had rejected the artists’ motion for a preliminary injunction, before Judge Block had time to explain that preliminary ruling in a written decision, and without giving the artists the 90 days’ written notice required under VARA. Similarly, Judge Block noted that, while Wolkoff had “in the main” told the truth in his trial testimony, the developer did not abide by Judge Block’s admonitions to answer questions directly and was instead “argumentative and prone to tangents and non-responsive answers.”[15] Perhaps even Wolkoff now understands the first rule of court: don’t insult the judge.

This may not be the end of the 5Pointz dispute, as defendants have until March 14 to file an appeal. So long as Judge Block’s ruling stands, however, the decision sends a message that developers and property owners ignore VARA at their own peril. Perhaps the most important practical point can be found in a footnote Judge Block inserted at the end of the decision, in which he noted that disputes such as this one can be easily avoided by property owners’ obtaining a “written waiver of the artists’ VARA rights up front, as § 113(d) expressly contemplates.”[16]

_______________________________________________

[1] Carter v. Helmsley-Spear Inc., 861 F. Supp. 303, 325 (S.D.N.Y. 1994) (“Carter I”), aff’d in part, vacated in part, rev’d in part, 71 F.3d 77 (2d Cir. 1995). Judge Block noted that Carter I “remains the seminal case interpreting the phrase ‘recognized stature.’” G&M Realty L.P., at *11.

[2] G&M Realty L.P., at *12-13. In making his determination for why four of the works did not achieve recognized stature, Judge Block cited the fact that they had not attracted “significant” third-party attention or social media buzz.

[3] Id. at *12. Judge Block went on to criticize defendants’ expert for both her restrictive interpretation of “recognized stature”—what Judge Block described as being akin to a “masterpiece standard”—and for her overly restrictive social media and academic search methodology.

[4] Id. at *15.

[5] Id. at *19. For all 45 works eligible for statutory damages, Judge Block granted the maximum statutory damages available – $150,000 – after finding Wolkoff’s infringement willful.

[6] Id. at *18 (citation omitted). Judge Block did not consider the fifth factor, which he found does not apply to VARA cases.

[7] Id.

[8] Id.

[9] Id. at *18-19.

[10] Id. at *19.

[11] Id.

[12] Id.

[13] Readers can also speculate what Judge Block had in mind when he referred to the new housing Wolkoff planned to build on the site at six different places in his decision as “luxury condos.”

[14] Cohen v. G&M Realty L.P., 2018 WL 851374, at *19 (E.D.N.Y. Feb. 12, 2018).

[15] Id. at *5 (E.D.N.Y. Feb. 12, 2018).

[16] Id. at *19 n.22. Similarly, in a Wall Street Journal article following the jury’s advisory verdict in November, Michael Salzman, co-chair of Hughes Hubbard & Reed’s art law practice, highlighted the 5Pointz developer’s missed opportunity to obtain waivers from each of the artists in order to protect himself from their assertion of VARA rights down the road.

Id

On October 27, 2017, the New York Chapter of the Copyright Society of the USA hosted a panel exploring the history, caselaw and policies underlying the Visual Artists Rights Act (“VARA”).[1]  The panel featured Amy Adler, Emily Kempin Professor of Law at New York University School of Law; Irina Tarsis, Founder and Director of the Center for Art Law; and Daniel H. Weiner, Partner at Hughes Hubbard & Reed LLP.  Barry Werbin, Counsel at Herrick, Feinstein LLP, moderated the panel.  Each of the panelists’ unique VARA experience engendered a well-rounded review of a hot area of law.  Fittingly, the panel took place during the second week of the “5Pointz” jury trial, in which the very issues under discussion were being litigated before Judge Block of the Eastern District of New York.[2]

Enacted in 1990, VARA provides artists with “moral rights” protection for their visual works of art, provided the works themselves meet certain requirements.[3]  The two main protections VARA offers are the “right of attribution” and the “right of integrity.”[4]  The right of attribution grants the artist the right to claim authorship of her work (in other words, to prevent the attribution of the artist’s work to someone other than herself) and to prevent the false attribution to her of a work of art she did not create.[5]  The right of integrity grants the artist the right to prevent any intentional modification of her work that would be “prejudicial to his or her honor or reputation.”[6]  The right of integrity also grants an artist the right to prevent the destruction of her work of art so long as that work has achieved “recognized stature.”[7]

Dan Weiner started off the panel by looking back at some of the most important cases in VARA’s history.  Mr. Weiner first spoke about his experience litigating the first case decided under VARA, Carter v. Helmsley-Spear,[8] as plaintiffs’ counsel.  Twenty-three years later, that seminal case served as a central precedent in the 5Pointz trial, as the Helmsley-Spear district court opinion established the test for determining whether a work has achieved “recognized stature” under VARA.  Under this two-tiered test, a plaintiff must first show that the artwork at issue has “stature,” meaning that it is “viewed as meritorious,” and, second, “that this stature is ‘recognized’ by art experts, other members of the artistic community, or by some cross-section of society.”[9]  Mr. Weiner then provided synopses of several of the most prominent post-Helmsley-Spear VARA cases, including Martin v. City of Indianapolis,[10] Phillips v. Pembroke Real Estate,[11] and Massachusetts Museum of Contemporary Art Foundation v. Büchel.[12]

In her presentation, Professor Adler discussed some of the policy considerations implicated by VARA, with a focus on the tension between American copyright law and Europe’s more author-centric civil law tradition of moral rights, “droit moral.”  While the rights granted by VARA are substantially more expansive than the rights otherwise granted under the U.S. Copyright Act, VARA rights are relatively limited when compared with droit moral—both as a matter of the plain language of the statute and, in particular, as a matter of the courts’ narrow interpretation and application of the law.  While acknowledging the almost universal agreement among scholars, practitioners and artists that American moral rights should be expanded—and while granting that, to some degree, she is coming at the issue as a devil’s advocate—Professor Adler advanced her own argument “against moral rights.”  From a policy perspective, she questioned whether it is right to assume that artists given this set of rights would in fact wield them in a manner consistent with the public interest.  For example, Professor Adler suggested that there may be circumstances under which artistic destruction is in the best interest of the public, or, conversely, where an artist’s impulse may be to destroy his work when the public interest is in that work’s preservation.

Irina Tarsis wrapped up the panel by discussing several ongoing litigations invoking VARA, with particular emphasis on the 5Pointz trial.  Ms. Tarsis shared her impressions of the trial after attending as an observer over the course of its first weeks; she noted that much of the testimony focused on the legitimacy of graffiti or “aerosol art” as an art form.  We now know that the 5Pointz jury ultimately agreed[13] with plaintiffs that the “aerosol art” works at issue achieved “recognized stature.

In the Q&A session following the panelists’ presentations, all three panelists indicated that they shared an interest in promoting the creation of more public art; however, there was no consensus on how effective they thought VARA would prove in furthering that goal. As we await a judicial ruling in the 5Pointz trial, the question lingers as to whether following the jury’s recommendation in favor of the aerosol-artist plaintiffs would embolden other artists to use their VARA rights to their advantage, or, ironically, if it will disadvantage artists by scaring developers away from commissioning or even allowing art on their property—a harm which VARA cannot remedy.

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[1] 17 U.S.C. § 106A.

[2] Cohen v. G&M Realty L.P., 1:13-cv-05612-FB-RLM (E.D.N.Y. filed October, 10, 2013). As discussed further in a separate piece on this blog, the 5Pointz jury subsequently returned an advisory verdict finding that the property-developer defendant violated the 21 “aerosol artist” plaintiffs’ VARA rights.  A written decision from Judge Block is expected.

[3] An earlier piece on this blog examines the distinction between a work of visual art and a work of applied art, to which VARA’s protections does not apply.

[4] 17 U.S.C. § 106A(a).

[5] Id.

[6] Id.

[7] Id.

[8] Carter v. Helmsley-Spear Inc., 861 F.Supp. 303, 325 (S.D.N.Y. 1994), rev’d on other grounds, 71 F.3d 77 (2d Cir. 1995).

[9] Id. at 325.

[10] Martin v. City of Indianapolis, 982 F. Supp 625 (S.D. Ind. 1997), aff’d, 192 F.3d 608 (7th Cir. 1999).

[11] Phillips v. Pembroke Real Estate Inc., 288 F. Supp 2d 89 (D. Mass. 2003), aff’d, 459 F.3d 128 (1st Cir. 2006).

[12] Mass. Museum of Contemporary Art Found. v. Büchel, 565 F. Supp. 2d 245 (D. Mass. 2008), aff’d in part, vacated in part, 593 F.3d 38 (1st Cir. 2010).

[13] Michael Salzman, co-chair of Hughes Hubbard & Reed’s art law practice, is quoted in this Wall Street Journal article regarding the 5Pointz developer’s missed opportunity of obtaining waivers from each of the artists in order to proactively protect himself from the artists asserting their VARA rights down the road.

Id.

“5Pointz” Jury Returns Advisory Verdict in Favor of Graffiti Artists.

A six-member jury has returned an advisory verdict finding that a property developer violated more than twenty graffiti artists’ “right of integrity” under the Visual Artists Rights Act (“VARA”) when it whitewashed a building bearing nearly fifty of those artists’ works. As covered previously on this blog, the artist plaintiffs filed suit under VARA in 2013, seeking to enjoin developer Wolkoff’s demolition of that Long Island City building, nicknamed “5Pointz,” which Wolkoff had previously invited the artists to use as their canvas, and which had eventually gained renown as a “graffiti Mecca.” In November 2013, Judge Frederic Block of the federal court in the Eastern District of New York denied the injunction, but allowed the case to go forward on the artists’ claim for damages.1 Before Judge Block had even issued a written decision, Wolkoff whitewashed the building. The actual demolition of 5Pointz began in August 2014, making way for two luxury high rise towers that are slated for completion by the end of this year.

In March 2017, Judge Block partially granted defendants’ motion for summary judgment, but allowed plaintiffs’ VARA claims to proceed to trial.2 On November 8, 2017, after three weeks of trial testimony, the jury returned a verdict in favor of plaintiffs, finding, among other things, that the “aerosol art” works at issue had indeed achieved “recognized stature” under VARA. The verdict marks the first time that graffiti has been recognized as subject to VARA protection under federal law.

By stipulation of the parties, however, the jury’s verdict is advisory, not final. In addition to the jury’s recommendation, Judge Block will consider post-trial briefs from the parties, due December 11, 2017, before issuing a written decision on liability and damages. If he finds the defendants liable, it will be interesting to see what damages he arrives at. Under the Copyright Act, the court has wide discretion in setting damages, which, at the plaintiffs’ election, may be either actual damages or a statutory sum ranging from $750 to $30,000 per work “as the court considers just” – and up to $150,000 per work if Judge Block finds that the infringement of the artists’ rights was “willful.”3 The court, in its discretion, may also allow recovery of costs and may award attorney’s fees.4

__________________
1. Cohen v. G&M Realty, 988 F. Supp 2d 212 (E.D.N.Y. 2013).
2. Cohen v. G&M Realty L.P., No. 13-CV-5612 (FB), 2017 WL 1208416 (E.D.N.Y. Mar. 31, 2017). While allowing the VARA claims to go forward, Judge Block dismissed the plaintiffs’ claims for conversion, property damage, and intentional infliction of emotional distress, as well as the defendants’ counterclaim for abuse of process.
3. 17 U.S.C. § 504.
4. Id. § 505

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.

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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.

As street art – typically painting or drawing on someone else’s wall – grows in status in art circles,1 street artists are finding that their work is increasingly being exploited without their permission. While a number of these artists have attempted to assert copyright2 or Visual Artists Rights Act (“VARA”) rights to protect their work, courts have not yet had occasion to establish a legal framework in which street artists can reliably protect their work because these claims largely have ended in private settlements.

With the increasing appropriation of street art several questions have arisen but are still  unresolved by courts:  Do street artists have copyright in their work?  Should they be able to prevent the unauthorized copying, sale, removal or destruction of their (by and large unauthorized) work?  To the extent copyright offers inadequate protection, may street artists assert VARA rights in their work?

I. Unauthorized Street Art and Copyright

For street artists who create their work on someone else’s property without the property owner’s permission, there is an awkward dilemma:  Should street art which is the result of illegal trespassing and (arguably) criminal mischief3 be entitled to legal protection under federal copyright law?

A. Villa v. Pearson Education, Inc. Casts Doubt on the Copyrightability of Unauthorized Street Art.

The Copyright Act does not explicitly state that illegality in the course of a work’s creation prevents copyrightability or is a defense to an infringement claim. Courts have addressed the copyrightability of unauthorized art on few occasions, without offering clear guidance.

Villa v. Pearson Education, Inc., decided over a decade ago, casts doubt on the copyrightability of unauthorized street art.There, street artist Hiram Villa, known by his pseudonym “UNONE,” brought a copyright infringement suit against Brady Publishing alleging, among other things, that the publishing company reproduced his unauthorized mural in a book without his permission.5  Villa had not registered copyright in his works, however, and the court dismissed the action for that technical reason and declined to exercise supplemental jurisdiction over the artist’s state law claims.6  Villa thereafter obtained a Certification of Registration from the United States Copyright Office and filed a new complaint alleging copyright infringement.  Brady again moved to dismiss the complaint, arguing in part that “the mural in question is not protected by copyright . . . because it is illegal graffiti.”7  The court denied Brady’s motion to dismiss, reasoning in part that Brady’s argument “turn[s] on questions of fact” as it “would require a determination of the legality of the circumstances under which the mural was created.”8  By acknowledging a need to assess the underlying “legality”  of a work’s creation to assess its copyrightability, the court implicitly accepted the defendant’s argument that a work’s unauthorized creation on someone else’s property could be a defense to copyright infringement.  Ultimately, the parties reached a settlement, providing no further guidance on the copyrightability of unauthorized art.

A respectable argument exists that the circumstances in which a work of art was made, or the ownership of the physical object on which the artwork is created, should not affect the artist’s copyright rights in the artwork.  It is a well-established principle of copyright law that copyright is distinct from ownership rights in the physical object embodying the work.  Even if the artist trespassed to make her mural, why should that permit a third party to profit off that mural by using it to sell books or handbags?

Since Villa, several other street artists have brought suit under the Copyright Act attempting to protect their work.  In July 2014, Miami street artist David Anasagasti, better known by his pseudonym “Ahol Sniffs Glue,” sued American Eagle Outfitters, alleging the retail brand reproduced his work in apparel advertising campaigns.9  In August of that year, artist Maya Hayuk sued Coach, the handbag retailer, claiming that the luxury brand prominently featured her “Chem Trails NYC” mural in promoting its apparel and accessories lines.10  Around that time, a trio of California-based graffiti artists sued fashion designer Roberto Cavalli S.p.A. and various retailers for reproducing their mural in marketing clothing and accessories.11  To the dismay of artists desiring legal guidance, however, all these cases settled out of court.

B. Banksy and the Splitting of Rights between Artist and Property Owner

Assuming that unauthorized street art is protectable under the Copyright Act, copyright would still not grant the artist ownership of the tangible medium of expression in which the work is fixed; that belongs to the property owner of the wall (or other object) on which the art has been created.  This tension between property law and copyright law splits between property owner and artist the rights that would otherwise belong exclusively to the copyright holder under Section 106 of the Copyright Act:  The property owner, who owns the physical embodiment of the work, would have the right to display and sell the original work, whereas the copyright holder would have the exclusive right to reproduce the work and prepare derivative works without interfering with the property owner’s rights.

This tension between property law and the Copyright Act led to the situation in 2010 where a property owner, not the artist, sought to protect an artist’s graffiti work.  In that case, Bioresource Inc., claiming ownership of the site of the crumbling Packard Plant in Detroit, sued 555 Gallery over the gallery’s removal of a 1,500-pound cinderblock wall featuring artwork by famously elusive British graffiti artist Banksy.12  Bioresource brought suit in Wayne County Circuit Court, arguing that the mural was worth at least $100,000.13  The parties settled the case out of court, with Bioresource agreeing to donate the mural to the gallery, which in turn agreed to pay Bioresource a symbolic amount.14

II. Unauthorized Art and VARA

In 1990, Congress enacted the Visual Artists Rights Act (“VARA”), codified at Section 106A of the Copyright Act, to protect artists’ moral rights – namely, the rights of integrity and attribution.  Thus, VARA entitles an author of a work of visual art to prevent intentional modification of that work “which would be prejudicial to his or her honor or reputation,” prevent the use of his or her name as the author in the event of prejudicial modification, and prevent destruction of a work of “recognized stature.”15  VARA provides another tool that street artists might employ to protect their creations.

A. English and Pollara: VARA Might Offer Protection for Unauthorized Art

In English v. BFC & R East 11th Street LLC, a group of artists brought suit under VARA seeking a preliminary injunction to prevent the defendants’ unauthorized destruction of their unauthorized murals in a community garden.16  The district court held that VARA does not apply to unauthorized works of art if the works are permanently affixed to the structure, invoking public policy considerations:  “[O]therwise parties could effectively freeze development of vacant lots by placing artwork there without permission.  Such a construction of the statute would be constitutionally troubling, would defy rationality and cannot be what Congress intended in passing VARA.”17  English’s distinction between removable and unremovable works of art suggests that VARA may offer protection for unauthorized art if it is removable.

In Pollara v. Seymour, the Northern District of New York highlighted the same distinction between removable and unremovable works of art.  There, the artist installed a mural in the property owners’ plaza under the incorrect assumption that the company that commissioned her work had obtained a permit.18  The property owner subsequently removed the unauthorized mural from its frame and significantly damaged the work in the process.19  The artist brought suit under VARA, and the property owners moved for summary judgment, arguing in part that the work was not entitled to protection under VARA because the work was installed without permission.  The court rejected this argument, reasoning that there was “no basis in the statute to find a general right to destroy works of art that are on property without the permission of the owner.”20  The defendants further argued the mural was not entitled under VARA to protection against intentional or grossly negligent destruction because it was not a “work of recognized stature.”21  The court declined to resolve this issue on summary judgment, finding that there were questions of fact to be decided.22  Following trial, the court ultimately dismissed the plaintiff’s claim and held that the plaintiff failed to demonstrate that her mural was a “work of recognized stature,” reasoning that the mural evidently was “not intended to have any lasting value.”23  Whether street art may qualify as a “work of recognized stature” was addressed by the Eastern District of New York in assessing destruction to 5Pointz, discussed below.

B. 5Pointz:  Preventing the Destruction of Street Art of “Recognized Stature”

In November 2013, the Eastern District of New York declined to issue a permanent injunction under VARA that would have stopped property owners’ demolition of the 5Pointz “graffiti Mecca” in Long Island City, New York to make way for a residential development.24  In Cohen v. G&M Realty L.P, the plaintiffs argued that they were empowered under VARA to prevent the destruction of their mural under the VARA provision that allows the author of a work to prevent that work’s destruction if it is of “recognized stature.”25  The court found that some of the works in the composite piece might qualify as works of “recognized stature,” but otherwise did not carry through with a VARA analysis.  Instead the court noted that the plaintiffs had failed to demonstrate irreparable harm:

[P]laintiffs would be hard-pressed to contend that no amount of money would compensate them for their paintings and VARA—which makes no distinction between temporary and permanent works of visual art—provides that significant monetary damages may be awarded for their wrongful destruction.  In any event, paintings generally are meant to be sold.26

The court further found the “transient nature” of the plaintiffs’ work to be dispositive as to the issuance of an injunction.  According to the court, the plaintiffs had always known that the walls on which they painted their murals would be destroyed.27

Although sympathetic to the artists’ interests – “our souls owe a debt of gratitude to the plaintiffs for having brought the dusty walls of defendants’ buildings to life”28 – the court’s analysis seems to foreclose the availability of injunctions under VARA to graffiti artists, even if they are of recognized stature:   under the court’s reasoning, the availability of statutory damages, the existence of an art market, and graffiti’s very ephemeral nature all mitigate against a finding of irreparable harm.

III. Conclusion

To the dismay of many street artists, it remains unclear whether copyright law affords protection for unauthorized street art.  Villa arguably cast doubt on the copyrightability of unauthorized works over ten years ago, but no subsequent decision has gone so far as to explicitly deny copyright protection on that basis.

Under copyright law, the artist’s rights in street art conflict with those of the property owner insofar as the property owner owns the tangible original work.  The tension between artist’s rights and the property owner’s rights resurface under  VARA, but in a different guise.  In that context, the issue is whether an artist can assert moral rights in street art and thereby freeze the development of a building.  That very policy concern led the court in English to deny VARA protection to an unremovable, unauthorized mural.

Given the unsettled state of the law, there remains the policy-oriented question of whether such works should be copyrightable.  Insofar as copyright law is intended to incentivize creation, assuming that street art is a practice that at least sometimes has value to the public, does the creation of street art benefit under a regime of copyright?  In other words, is copyright necessary to incentivize the creation of more street art?  The proliferation of street art in the absence of robust intellectual property protection probably suggests a negative answer to that particular question.

Conversely, if illegality in creation is a bar to copyrightability, the tension between property rights and copyright still does not disappear.  If we care seriously about property rights, should copyright law extend rights to a book publisher, for instance, seeking to profit from the underlying, unauthorized work?

Finally, there is a fundamental tension when street artists – whose very genre of art is premised on its “outlaw” nature – ask the courts legal protection under the Copyright Act or VARA.

 

1. See e.g., Allison Young, “Making Money by Mocking Power: Inside the New Banksy Exhibition,” CNN WORLD (Oct. 24, 2016), http://www.cnn.com/2016/10/24/arts/the-art-of-banksy-melbourne/ (Stating that street artist Banksy, who has stenciled graffiti in New York, London and Melbourne and other places, “is one of the most influential artists in the world.”); see also, “Street Art Expo NYC 2016 Celebrates Three Generations of Graffiti Art with: Part One, Flint Gennari, Alski, Nic 707, Moody Mutz, Plasma Slug, Chief 69 and more,” Street Art NYC (May 24, 2016), http://streetartnyc.org/blog/2016/05/24/street-art-expo-nyc-2016-celebrates-three-generations-of-graffiti-art-with-part-one-flint-gennari-alski-nic-707-moody-mutz-plasma-slug-chief-69-and-more/; see also Jonathan LeVine Gallery, http://jonathanlevinegallery.com/tag/street-art/; Lowbrow Artique, http://www.lowbrowartique.com/gallery/; Woodward Gallery, http://woodwardgallery.net/; Museum of the City of New York, https://collections.mcny.org/Gallery/24UPN47RMLQ.
2.  Under United States copyright law, a work receives protection if it is an “original work of authorship fixed in any tangible medium of expression.”  17 U.S.C. § 102. A work is “original” if it was “independently created” and possesses “at least some minimal degree of creativity”; it need not be novel.  Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991). A work is “‘fixed’ in a tangible medium of expression when its embodiment in a copy . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”  17 U.S.C. § 101. Copyright entitles the owner to a set of exclusive rights, including the right to reproduce the work, prepare derivative works, distribute copies, and, for certain types of works, display the work. 17 U.S.C. § 106.
3.  N.Y. Penal Law § 145.60 makes it a Class A misdemeanor to make an “etching, painting, covering, drawing upon or otherwise placing of a mark upon public or private property with intent to damage such property . . . on any building, public or private, or any other property real or personal owned by any person, firm or corporation or any public agency or instrumentality, without the express permission of the owner or operator of said property.”
4.  Villa v. Pearson Educ., Inc., No. 03 C 3717, 2003 WL 22922178 (N.D. Ill. Dec. 9, 2003).
5.  Id. at *1.
6.  Id. at *1.
7.  Id. at *2.
8.  Id. at *3.
9.  Anasagasti v. American Eagle Outfitters, Inc., Case No. 1:14-cv-05618 (S.D.N.Y. July 23, 2014).
10.  Hayuk v. Coach Services, Inc. et al, Case No. 1:14-cv-06668 (S.D.N.Y. Aug. 19, 2014).
11.  Jason Williams et al v. Roberto Cavalli, S.p.A. et al, Case No. 2:14-cv-06659 (C.D. Cal. Aug. 25, 2014).
12.  The Associated Press, Banksy Battle: Packard Plant Ownership Sues Detroit Art Gallery for Removal of Graffiti Mural, MICH. LIVE (July 7, 2010), http://www.mlive.com/news/detroit/index.ssf/2010/07/banksy_backlash_packard_plant.html.
13.  Id.
14.  Anne Laure Bandle, Andrea Wallace & Marc-André Renold, Banksy Mural – Bioresource, Inc. and 555 Nonprofit Studio/Gallery, Platform ArThemis, https://plone.unige.ch/art-adr/cases-affaires/banksy-mural-2013-bioresource-inc-and-555-nonprofit-studio-gallery.
15.  17 U.S.C. § 106A.
16.  English v. BFC&R E. 11th St. LLC, No. 97 CIV. 7446 (HB), 1997 WL 746444, at *1 (S.D.N.Y. Dec. 3, 1997), aff’d sub nom. English v. BFC Partners, 198 F.3d 233 (2d Cir. 1999).
17.  Id. at *4.
18.  Pollara v. Seymour, 150 F. Supp. 2d 393, 394 (N.D.N.Y. 2001).
19.  Id.
20.  Id. at 396 n.4.
21.  Id. at 396.
22. Id. at 399.
23.  Pollara v. Seymour, 206 F. Supp. 2d 333, 337 (N.D.N.Y. 2002), aff’d, 344 F.3d 265 (2d Cir. 2003).
24.  Cohen v. G&M Realty L.P., 13-CV-5612 (FB) (E.D.N.Y. Nov. 20, 2013).
25.  Id. at 3.
26.  Id. at 24-25 (citation omitted).
27.  Id. at 26.
28.  Id. at 23.

 

Nathan Cole and Joanna Liu assisted with the drafting of this post.