'Graffiti' Artists Prevail Under VARA Over Property Owner

In February 2018, the U.S. District Court for the Eastern District of New York awarded $6.75 million to a group of 21 aerosol artists whose “graffiti murals” were destroyed by the property owner. Cohen v. G&M Realty L.P., 13-CV-05612 (E.D.N.Y.). While this outcome may seem shocking to some, the basis of the ruling rests in the federal law known as the Visual Artists Rights Acts of 1990 (VARA), 17 U.S.C. §106A, which partially codifies the age-old concept of “artistic moral rights.”

VARA expanded the usual bundle of rights of the artist further by providing that the author of a “work of visual art” shall have the right to prevent: any intentional distortion, mutilation or other modification of that work that would be prejudicial to his or her honor or reputation; and any destruction of a work of recognized stature.

In the context of a mural, this means that, once the property owner commissions the artwork, the owner's ability to remodel the building or demolish that wall may be limited by the obligation to preserve the artistic integrity of the mural and/or the honor and reputation of the artist. This is a very big deal. Depending on the facts at hand, the decision to hire an artist to paint property may very well limit the hiring owner's ability to control that same property after the fact.

Of course, the law is not quite as one-sided as this may sound. Seeking to establish a proper balance, VARA offers various procedural options to a property owner faced with the need for maintenance or demolition. For instance, assuming the work is removable (as in the New York case), VARA provides that the artist should be provided an opportunity to salvage the work before it can be destroyed. If the artist fails to so act within a prescribed time period, that failure is deemed a waiver by the artist and the owner is free to destroy the work. VARA also sanctions the use of explicit written waivers that may function to override the preclusive effects of the law.

Greg Mike has witnessed the conflict firsthand, noting that “with limited walls for canvases and developers constantly seeking something new and fresh, many times there's change without warning,” and “I've definitely been burned in the past.” With this in mind, the premise of VARA seems to be based on a recognition that artwork has quantifiable, inherent value to the community at large and, when coupled with the underlying rights established by copyright traditions, the law should protect the integrity of recognized art against wanton and unnecessary destruction.

Speaking directly to this concept, Senior District Judge Frederic Block in the New York case noted that the property owner's actions in destroying the murals on his property were “recalcitrant” and “willful,” and as such deserved the imposition of liability and substantial statutory damages. Importantly, Senior Judge Block's ruling is the first time a court applied VARA to art that might be properly characterized by some as “graffiti.”

In the decision, Senior Judge Block explained in part: “Defendants' overarching contention is that plaintiffs knew that the day would come when the buildings would be torn down and that, regardless, the nature of the work of an outdoor aerosol artist is ephemeral. They argue, therefore, that VARA should not afford plaintiffs protection for their temporary works.

“VARA does not directly address whether it protects temporary works. However, in the context of works on buildings, it is clear from 17 U.S.C. §113(d) that temporary works are protected. Moreover, relevant case law conceptually supports this conclusion. In short, there is no legal support for the proposition that temporary works do not come within VARA's embrace.”

The district court also noted that, in the situation in which a work is not removable without “destroying, mutilating or distorting the work,” an artist may be able to sue to prevent the destruction of the work altogether.

As such, this ruling expands the rights of artists beyond the traditional bounds of copyright law. Although it may be too soon to predict the ultimate effect of this case as it pertains to the balance of rights between property owners and artists, it's hard to understate the immediate impact of the ruling. While VARA on the surface seems to dilute the rights of property owners in favor of artists, each of the rights and restrictions discussed in this article are subject to contractual transfer, allocation and waiver. The takeaway is that property owners and artists should always negotiate these matters on the front end and reflect that agreed upon understanding in a written contract.

In the absence of a written agreement, copyright law and, in some cases, VARA establish rights to protect the creator of the artistic work. At times, those self-springing rights may continue far beyond the lives of the parties involved. Accordingly, in a world in which an aerosol mural on metal siding might be viewed on equal footing with the ceiling of Sistine Chapel, prudence requires careful consideration when it comes to initiating, modifying and/or destroying a work of art — regardless of where it exists. *****

Matthew V. Wilson, of counsel at Arnall Golden Gregory in Atlanta, GA, practices in the area of corporate and entertainment law. J. Tucker Barr, a partner at Arnall Golden Gregory, practices in the area of intellectual property. This article also appeared in Daily Report Online, an ALM sibling of Entertainment Law & Finance.