'Graffiti' Artists Prevail Under VARA Over Property Owner

From Art Basel shows to the installation-rich landscapes of Coachella and Shaky Knees Music Festival, street art has achieved cultural relevance and acceptance with artists such as Banksy and Shepard Fairey legitimizing the medium that was once dismissed as petty vandalism unworthy of serious appreciation. One of our firm's clients, Atlanta resident and internationally acclaimed visual artist Greg Mike, believes that “art in the streets … is one of the major reasons [Atlanta] is blossoming and becoming a creative capital.” According to Mike, “Atlanta is now on the hit list of destination locations for folks looking to see work on the streets.”

It follows that the culturally conscious property owner may be interested in commissioning an artist to beautify the outdoor wall of the owner's warehouse space. However, it's important to understand the legal effect of commissioning such work and the scope of rights that the property owner acquires and surrenders as a result. It may come as a surprise to the owner that commissioning and paying for the work does not necessarily mean that the owner may use the artwork without restriction. For example, while the property owner may hold title to the physical artwork, in most instances the owner may not duplicate the image on a T-shirt, sell photographs of the image or use the painted wall as backdrop for a film, television or music video production. Furthermore, depending on the facts involved, the property owner may also be prevented from painting over the work or subsequently tearing down the painted wall.