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How to Keep Your Street Art Alive Under the Visual Artists Rights Act

Street art is by its very nature temporary – painted on public walls and spaces, artists don’t always have express permission to make street art, and most don’t have any kind of contract or set of rights in place. But after the recent verdict giving credo to the street artist group Credo hit the news, it seems like a good time to review artists’ rights under the Visual Artist’s Rights Act (VARA).

A federal court jury in Brooklyn has handed a preliminary victory to the 5 Pointz group of graffiti and aerosol artists in a closely watched case that pitted the rights of street artists against those of a property developer.

The six-person jury found that real estate developer Gerald Wolkoff and his related companies broke the law when, in 2014, he whitewashed the 5Pointz graffiti mecca in Long Island City, despite the fact that the Wolkoff’s owned the building. Even though Wolkoff made it clear in the early 1990s that he would only allow the graffiti artists to paint on the building temporarily, the group was outraged that they weren’t given any notice as to the Wolkoffs intention to paint over their piece. 

Surprisingly, a jury returned a verdict that unequivocally stated that the Wolkoffs violated VARA when they painted over the 5 Pointz mural. Still, a judge has to confirm the sentence, along with determining whether damages can be paid to the artists who suffered the harm. 

The 5 Pointz outcome is sure to be a precedent-setting case that irrevocably alters the landscape for many artists working with public art projects. Here, we’ll review the central tenets of the Visual Artist Rights Act, and determine whether a positive verdict here could change the future of street art forever.

5 pointz
A photo by FunGi_Trading captures 5 Pointz’s signature style.

Moral Rights are Key to Understanding the Visual Artists Rights Act

The Visual Artists Rights Act was created as an extension of the 1976 Copyright Act in 1990 in order to grant statutory moral rights to artists over their work. Having a “moral” right in a work may sound odd, but it essentially means that an artist has control over the integrity of the work. This can include the right of attribution, the right to have a work published anonymously or under a pseudonym, and the right to bar the work from alteration, distortion, or mutilation. Interestingly, anything else that may detract from the artist’s relationship with the work even after it leaves the artist’s possession or ownership may bring these moral rights into play – that means that even after an artist sells a work to a collector, he can assert his moral rights over the work if the collector proposes changing the work in a substantial way.

Affording artists a moral right in copyrighted artistic works first originated in Europe in 1928, where it’s not possible to assign or waive your moral right in a work. Obviously the U.S. laws on moral rights weren’t a major priority, since copyright law in the United States emphasizes protection of financial reward over protection of creative attribution. But when the U.S. joined the Berne Convention for the Protection of Literary and Artistic Works, its signatories advised that something must be done to get those moral rights in check – and the Visual Artists Rights Act was the solution.

VARA: The U.S.’s Response to Moral Rights Copyright Doctrines

Under the Visual Artists Rights Act, works of art that meet certain requirements afford their author’s additional moral rights in the works, regardless of any subsequent physical ownership of the work itself, or regardless of who holds the copyright to the work. Like in our example above, a painter may insist on proper attribution of his painting, and in some instances may sue the owner of the physical painting for destroying the painting even if the owner of the painting lawfully owned it.

VARA grants copyright holders in artworks these exclusive rights:

  • right to claim authorship
  • right to prevent the use of one’s name on any work the author did not create
  • right to prevent use of one’s name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation
  • right to prevent distortion, mutilation, or modification that would prejudice the author’s honor or reputation

But VARA doesn’t grant an overarching moral right to an artist’s work – instead, it requires that a work is of a certain class in order to be granted protection. VARA provides its protection only to paintings, drawings, prints, sculptures, and still photographic images produced for exhibition only.

Because VARA’s application is limited to visual works that fall within a narrowly defined category, VARA imposes substantial restrictions on any modification or removal of those works. Exceptions to VARA require a waiver from the author in writing, which as we know is something that’s not generally permitted in Europe. Another exception would come into play if the work is considered a “work made for hire,” meaning that the artist wouldn’t hold a copyright in the work. As we’ve discussed extensively on Art Law Journal, the person who orders a work-for-hire owns the copyright in the work. However, per VARA’s requirements, an artist can still assert a moral right over a work he does not own a copyright in.

street art
A jury ruled that VARA protects 5 Pointz from the destruction of their work without prior notification. Photo courtesy of Brian Pocius.

How VARA Affects Public Works

An artist’s VARA rights have been extensively debated when it comes to public works. Absent a waiver, artists could effectively veto decisions to remove their structures from their benefactor’s land. In a 2006 decision involving public sculptures that were removed from the park for which they were created, the United States Court of Appeals for the First Circuit ruled that the Visual Artists Rights Act does not protect location as a component of site-specific work. VARA covered works can be moved as long as the move does not constitute “destruction, distortion, or mutilation.”

The court’s treatment of public works under VARA suggests that street art should unequivocally be protected under VARA laws, especially when the work was not commissioned by the owner of the building. Therefore, the owner of the building can’t really alter the building, because doing so would be in direct violation of VARA and copyright laws, since he doesn’t own the artistic copyright in 5 Pointz’s work.

Similarly, street artists should be aware that public commissions or grants often aren’t roadblocks to asserting your moral rights to the integrity of your work under VARA. Being offered public funds to have the means to create street art is NOT the same as being commissioned by the owner of a building to paint a giant mural. In the latter case, you’ve been hired. In the former, you’ve simply been given a hand. Likewise, street artists should always review any documentation associated with public grants to ensure that there aren’t any waiver clauses that would strip you of your VARA rights. As long as you haven’t waived the right, and your work is in a public space, it’s likely that your street art could live on forever.

Has your work ever been painted over or destroyed?  We want to know about it.  Leave your comments below.

 

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at nicole@orangenius.com.

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