At our law firm, we represent artists and parties doing business with them in agreements and lawsuits about artists’ “moral rights” to their creative works under the federal Visual Artists Rights Act of 1990, known as VARA, as well as under the California Art Preservation Act. We have recently been discussing copyright issues concerning graffiti or aerosol art and, in an interesting twist, a federal judge in New York recently found in favor of graffiti artists in a VARA lawsuit.
On June 13, 2018, Judge Frederick Block refused to grant a new trial in Cohen v. G&M Realty L.P., a case in which he had ordered $6.75 million in damages under VARA against the owner of a building in New York City because the owner whitewashed — without warning to the artists — famous, extensive graffiti art on the building’s brick walls.
What is VARA?
VARA is a 1990 law that gives creators or “authors” of certain visual arts the moral rights of “attribution and integrity.” Among other things, an author has the right, with some restriction, to:
- Claim authorship
- Stop the use of his or her name as the creator of the work of another person
- Prevent his or her name being attached to art after it was distorted or mutilated
- Stop distortion or modification of visual art when it would harm his or her “honor or reputation”
- Prevent “intentional or grossly negligent destruction” of a “work of recognized stature”
The artist’s moral rights under VARA exist during his or her lifetime and extend 70 years beyond death, unless he or she waives those rights in a written, signed document that complies with the law’s specific requirements. Ownership of moral rights in visual art is different than ownership of copyright in it (but is closely related). For example, an artist may retain the moral rights associated with authorship under VARA even if he or she does not own the copyright.
The 5Pointz graffiti
The lawsuit concerns 5Pointz, the site of extensive graffiti art on a Queens industrial building. The owner and a graffiti artist had agreed verbally that graffiti artists could decorate the building, with the understanding that the owner might demolish the building.
The site became what some call the most significant spot in the world to view aerosol art.
When demolition approached, the artist asked the court for a preliminary injunction (temporary order) to stop the owner from demolishing the building for high-rise condos. The court denied this request, after which the owner secretly painted over the graffiti during the night.
The court firmly disapproved of the owner’s action for several reasons, noting that the buildings were not destroyed for another 10 months, so the public could have had that time to view the artwork. In the original opinion, the judge said, “Since their works were effectively destroyed, plaintiffs were relegated to seeking monetary relief under VARA.”
The judge found that 45 works of art in graffiti had “recognized stature” under VARA and awarded $150,000 per work in damages, the highest allowed under VARA. (An alternative would be to seek actual damages.) The judge awarded the maximum penalty because the owner had acted “willfully” when he destroyed the artwork.
The original decision contains an appendix that details the opinions of artistic experts about the artistic stature of the works and describes the graffiti site as a publicly-prominent tourist attraction with millions of visitors.
As of July 30, Westlaw reports that the defendants have appealed the ruling.
Pictures of the 5Pointz complex before its demolition and more information about the case are available in artnet News.