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"VARA-90": What Landlords Can Do to Stop the Aerosol Spread … of Graffiti Artists' Claims
No, it's not another virus. "VARA" is the federal Visual Artists Rights Act of 1990 (17 U.S.C. §101, et seq.). The Second Circuit U.S. Court of Appeals in February 2020 affirmed an award of $6.75 million in statutory damages — the maximum — to "aerosol" (a/k/a graffiti) artists against the owners of warehouse buildings on which the plaintiff-artists' works were painted because the building owners destroyed the works in violation of VARA. See, Castillo v. G&M Realty L.P., 950 F.3d 155 (2d Cir. 2020).
As the Second Circuit Court of Appeals summarized by way of background:
VARA, added to the copyright laws in 1990, grants visual artists certain "moral rights" in their work. See, 17 U.S.C. §106A(a). Specifically, the statute prevents modifications of artwork that are harmful to artists' reputations. Id. §106A(a)(3)(A). The statute also affords artists the right to prevent destruction of their work if that work has achieved "recognized stature" and carries over this protection even after the work is sold. Id. §106A(a)(3)(B). Under §§504(b) and (c) an artist who establishes a violation of VARA may obtain actual damages and profits or statutory damages, which are enhanced if the artist proves that a violation was willful.
Castillo, supra, 950 F.3d at 163. See, generally, Michelle Bougdanos, "The Visual Artists Rights Act and Its Application to Graffiti Murals: Whose Wall Is It Anyway?" 18 N.Y.L. Sch. J. Hum. Rts. 549 (2002).
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