In a landmark first, a federal judge in New York has awarded $6.7 million in damages to twenty one graffiti artists who contended that a building owner covered their art in violation of federal law. According to the U.S. District Court Judge presiding over the case, the 45 works of art spray-painted onto the side of a building in Queens were protected under the Visual Artists Rights Act (“VARA”). Although it may seem counterintuitive at first that graffiti artists would be protected under federal law against a building’s rightful owner who wished to paint over their art, the judge based his decision on the fact that the artwork in question was of a “recognized stature.”
VARA, the act underlying this novel decision, is an amendment to copyright law which expands an artist’s right to attribution and integrity of their visual artwork. Importantly, the right to integrity includes the artist’s right to prevent the destruction of any piece that is of a “recognized stature.” Moreover, artists have a cause of action for damages against anyone guilty of intentional or grossly negligentcontent that results in the destruction of art of a recognized stature. This can include the distortion or mutilation of the art in a way that prejudices the honor or reputation of the artist.
Although it is possible for the creators of immovable pieces of art that are integrated into a building to waive their rights under VARA in a writing signed by both the artist and building owner, no such writing was created and signed in this case. As such, VARA applies to the immovable artwork that had become part of the buildings they were painted on.
When VARA is violated, the artist is entitled to $150,000 in statutory damages per piece of artwork willfully destroyed or actual damages. The twenty one artists whose work was destroyed in this case chose the statutory damages.
The violation of VARA arose out of an already pending lawsuit in which the graffiti artists sought to enjoin the owner of the warehouses upon which the art was painted from tearing the buildings down in order to build high-rise condominiums. The buildings had been painted with the permission of a building tenant and fellow artist, and had caused the value of the underlying property to rise from $40 million to $200 million. The building owner profited directly from the artwork by selling licenses to film at the location.
One of the more egregious acts of the building owner came following the judge’s promises to issue an opinion in the case within eight days, when rather than waiting just over a week for the judge’s opinion, the owner proceeded to immediately paint over the artwork on his own authority. This was apparently done with a “sloppy” and “half-hearted” layer of whitewash that left the art clearly visible.
The decision in favor of the artists held that the building owner acted willfully in destroying the paintings, and that the artists were entitled to damages for the destruction of forty five out of the forty nine works of art. More than just willfulness, the judge held that the building owner’s painting over the graffiti prior to the judge’s opinion was “an act of pure pique and revenge for the nerve of the plaintiffs to sue to attempt to prevent the destruction of their art,” and that “this was the epitome of willfulness.” This was on top of the building owner’s apparently hostile testimony, which at one point required the court to threaten to hold him in contempt.
Although this was certainly an extreme case of bad behavior on the part of the building owner, it sets an important precedent of the applicability of VARA to the creators of graffiti art on the sides of buildings. It will be interesting to see where the courts go with VARA from here.
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