IP Rights and Graffiti: A Win for Street Artists Everywhere
The Supreme Court recently denied G&M Realty’s writ of certiorari arguing against the Second Circuit’s affirmance of a $6.75 million damage award to 21 graffiti artists earlier this year in February 2020.[1] Known as the 5Pointz litigation, the U.S. District Court for the Eastern District of New York ruled against the developers who whitewashed and demolished the Long Island City graffiti-covered 5Pointz warehouse in 2013 in favor of building a luxury apartment complex.[2] Gerald Wolkoff, the owner of G&M Realty, previously gave permission for “distinguished aerosol artists” to transform the building into an exhibition area filled with colorful murals.[3] The spot attracted creators, celebrities, and admirers from around the world so much so that it was dubbed as the “Graffiti Mecca.”[4]
Plaintiffs sued to enjoin G&M’s construction claiming Wolkoff violated the Visual Artists Rights Act of 1990 (“VARA”).[5] VARA protects a “work of visual art” and grants artists certain “moral rights” to claim their work owned by someone else.[6] Artists must be given 90 days’ notice to take their artwork down before it can be destroyed.[7] According to the statute, a “work of visual art” falls under as a painting, drawing, print, sculpture or still photograph. .[8] VARA also gives an artist the right “to prevent any destruction of a work of recognized stature” and provides that “any intentional or grossly negligent destruction of that work is a violation of that right.”[9] Such moral right constitutes an artist’s right to integrity.[10] Although the artists could not stop the tearing down of their work, the district court awarded $150,000, the maximum amount of statutory damages from finding a willful violation, for each of approximately 45 murals.[11] Thus, although the lower court did not grant an injunction, the monetary damages still remained.
To justify the district court’s decision, the Second Circuit explained that the legal outcome hinged on whether the works at 5Pointz were works of “recognized stature” acknowledged by an artistic community.[12] VARA, however, does not define “work of recognized stature.” As a result, the court relied on expert testimony to discuss the work’s quality, status, and caliber.[13] Ultimately, the Second Circuit dismissed the argument that temporary works, such as graffiti art, are unable to reach “recognized stature” because of the possibility that new art could later be painted over those works.[14] The district court previously admonished the defendants for whitewashing the works as an “act of pure pique and revenge” toward the artists that had sued the realty company to preserve the work without giving any genuine reason otherwise to do so.[15] The Second Circuit agreed and noted the district court’s reasoning that the developer’s careless, indifferent nature of the whitewashing allowed the works to be easily visible under layers of cheap white paint.[16]
In its writ of certiorari, the developers contended that the Second Circuit’s finding violated the Due Process Clause of the Fifth Amendment because “recognized stature” is unconstitutionally vague as a term.[17] Consequently, the developers claimed that the finding of willfulness, and accompanying maximum statutory damages, also infringed upon their Fifth Amendment rights.[18]
Several implications may arise from the outcome of this case finally being put to rest. First, it will be easier for street artists to enjoy protection under VARA as more lower courts recognize graffiti as a major category of contemporary art. Just this year alone, artists who painted over boarded-up businesses as protest art against police brutality are looking to save their art under VARA.[19] Internet recognition is one of the factors these artists are hoping courts consider under the “recognized stature” analysis.[20]
On the flipside, potential buyers of property may be ambivalent about purchasing buildings with incorporated artwork. Developers whose building plans may require destruction may start to include VARA rights into its due diligence to avoid any future liability from removing unwanted works. All in all, however, the Supreme Court’s denial can be seen as an extension of intellectual property rights to street artists.
Footnotes
