Earlier this week, a federal court awarded a judgment of $6.75 million to 21 graffiti artists whose works were destroyed at the 5Pointz complex in Long Island City, Queens.
In 2013, Jerry Wolkoff, the real estate developer who owned 5Pointz, whitewashed dozens of murals at the complex. Wolkoff argued that the buildings were his to treat as he pleased, but the jury found he violated the Visual Artists Rights Act (VARA).
This case is the first time that graffiti has been protected under VARA, which was enacted in 1990. As an interesting aside, the founder of this law firm, Leonard DuBoff, and his wife Mary Ann were involved in drafting VARA and testified in support of its enactment before the senate committee chaired by the late Senator Ted Kennedy of Massachusetts.
VARA amends the Copyright Act by giving the rights of “integrity” and “attribution” to creators of “works of visual art” as defined by the statute:
A “work of visual art” is-
(1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or
(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.
Under VARA, the right of integrity grants an artist the right to prevent “any destruction of a work of recognized stature,” as well as “any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.”
The court found that the graffiti was of “recognized stature,” since Wolkoff’s buildings “had become the repository of the largest collection of exterior aerosol art … in the United States,” and the murals were a prominent tourist attraction drawing thousands of visitors a day.
If the owner of a building desires to remove a work of visual art that is a part of the building and that can be removed without the destroying, distorting, mutilating or modifying the work, the owner is liable for violating the artist’s rights under VARA unless the owner “has made a diligent, good faith attempt without success” to notify the artist, or the owner did notify the artist in writing but the artist failed to timely remove the work or pay for its removal.
If removal of the work from the building will cause the destruction, distortion, mutilation, or other modification of the work, the artist’s VARA right of integrity allows the artist to sue to prevent the destruction of the work unless the artist has waived the right in writing in accordance with the statute.
The right of attribution (not an issue in this case) allows an artist to claim authorship of a work he or she created and to prevent the use of his or her name as the author of any work of visual art which he or she did not create. The artist also has the right “to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”
All of the rights granted by VARA belong solely to the artist and are not transferable, though they can be waived by a properly drafted and executed contract.
These rights can be enforced by any applicable remedy, other than criminal penalties, otherwise available for infringement under the Copyright Act. In this case, having found Wolkoff’s violation of VARA to be willful, the court awarded the artists the maximum possible statutory damages of $150,000 for each of the 45 works found to be covered by VARA.
Please feel free to contact us if you have any questions about protecting your artwork or what you can legally do with artwork created by someone else.
