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A Dangerous Undertaking

By Rachel S. Faulkner
December 31, 2013

Oliver Wendell Holmes once wrote that “it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.” Bleistein v. Donaldson Lithographing Co. , 188 U.S. 239, 251 (1903). If Holmes didn't think he could do it, which of us thinks we're up to the task? Nonetheless, this was just the challenge taken up by Judge Block of the U.S. District Court for the Eastern District of New York in Cohen v. G&M Realty L.P., No. 13-CV-5612, 2013 WL 6172732 (E.D.N.Y. Nov. 20, 2013).

Plaintiff graffiti artists sought a preliminary injunction to prevent the destruction of several warehouses in Queens that bore their work. In a case of first impression, the court had to determine whether graffiti art could achieve the “recognized stature” necessary to obtain protection under the Visual Artists Rights Act of 1990 (VARA), 17 U.S.C. '106A. Unable to satisfactorily apply the “recognized stature” standard, the court ultimately denied the preliminary injunction on other grounds, showcasing the difficulty of applying legal standards to aesthetic judgments.

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