Think Carefully Before Removing Old Street Art

By Eric C. Turnbull

If you are a real estate owner or developer in an urban area, street art and graffiti on your building likely doesn’t warrant much more thought than how or when to remove it. However, as copyright law has continued to develop over the years and street artists step forward to protect their works, the law has demonstrated that wiping graffiti off your building’s walls can cost you a lot more than you may have expected. And in a city like Detroit, where long-abandoned structures that have become art canvasses are rehabilitated and developed by new investors looking to stake their claim to a piece of the Detroit comeback, conditions are ripe for potentially groundbreaking and costly copyright disputes. This begs the question – how can a property owner be liable to a graffiti artist for removing paint from their own building?

The Visual Artists Rights Act

Although copyright laws have been around for a very long time in Title 17 of the United States Code, Congress added to Title 17 with the enactment of the Visual Artists Rights Act (VARA) in 1990. VARA did something that the rest of traditional copyright law did not by granting artists the moral rights of attribution (the right to be recognized as the author of the work) and integrity (the right to prevent any deforming or mutilating changes to the work) to visual works of “recognized stature.” Courts have further addressed the meaning of a work being of “recognized stature,” adopting a test developed by a federal district court in Southern District of New York in Carter v. Helmsley-Spear, Inc., which requires two showings: (1) that the visual art in question has “stature,” or is viewed as meritorious, and (2) that this stature is “recognized” by art experts, other members of the artistic community, or by some cross-section of society.

In addition to the moral rights afforded to artists of works of recognized stature under VARA, the statute allows for an artist to waive the rights in a signed written instrument. Lastly, in the case where a work can be removed from a building without being destroyed or mutilated, the owner of the building must provide written notice to the artist to allow the artist 90 days to salvage the work.

While copyright law may apply much more sensibly to traditional artists who paint on their own canvas, it remains a largely untested area of the law where the canvas is the side of a wall that someone else owns. Case law has since developed to address these situations, and although there is no definitive answer fully expounding on graffiti artists’ VARA rights, there is precedent to warn property owners that the consequences can be staggering if VARA’s moral rights are violated.

The 5Pointz Litigation

In Cohen v. G & M Realty L.P., the federal district court for the Eastern District of New York recently entered an award overwhelmingly in favor of street artists, finding that their rights under VARA were violated by the real estate developer who owned the land where their art was displayed. The case concerned the famous 5Pointz location in New York, a dilapidated and vacant commercial property that became a mecca for modern street art. Rather than let graffiti run wild in the commercial property, the owner agreed to let renowned street artist Jonathan “Meres One” Cohen curate the space and control the works to be painted and displayed on the walls, with some works having a very brief existence before being painted over and others having a more permanent existence. The agreement between the two parties was verbal, and there was no signed agreement by artists to waive their VARA rights. 5Pointz quickly transformed from an abandoned commercial structure into a living museum and popular tourist attraction drawing artists from around the world.

And then the day came when the property owner finally had plans to clear the land and develop apartment complexes. 5Pointz had, quite simply, become too important for the street artists to allow its complete demolition without a fight. What immediately followed was years of litigation, with the street artists featured in 5Pointz bringing a lawsuit to protect their moral rights under VARA. The case was intriguing for many reasons, one being that the court went in-depth on the evidentiary methods of establishing a work as having “recognized stature” in order to avail an artist of VARA’s moral rights, noting that the Carter two-tiered showing was demonstrated through a great deal of testimony from experts within the art community.

However, another important aspect of this case was that the property owner did not seek to comply with VARA’s requirement to afford the artists and opportunity to salvage removable works. During the litigation, the street artists were denied an injunction to prevent destruction of their works, but still nonetheless retained the opportunity to salvage their works upon receipt of 90 days’ written notice from a property owner. Instead of notifying the artists and allowing them an opportunity to salvage their works, the property owner immediately white-washed the walls (therefore destroying all of the works) and barred the street artists from the property as a measure of revenge for filing the lawsuit.

After finding that the two-tiered showing was made to demonstrate that 45 of the works were of recognized stature, the court held the property owner liable for violation of the street artists’ VARA rights and awarded $150,000.00 (the maximum in statutory damages for willful conduct under copyright law) for each of the works. In the end, the property owner’s ignorance of artists’ VARA rights and assumption that he could do whatever he wanted with his land resulted in a judgment to the tune of $6.75 million.

The new apartment complex may be on hold at this point.

One key distinction in the 5Pointz case is that the property owner had a verbal agreement with the street artists to allow art to be put up at the site. However, an unsanctioned street artist’s “graffiti” is not simply stripped of VARA protections just because the artist’s rights clash with those of the property owner. In English v. BFC&R East 11th Street LLC, a New York federal district court held that VARA was inapplicable where an artist’s unsanctioned work could not be removed from the property, but in Pollara v. Seymour, another New York federal district court shot down the argument that VARA was inapplicable to unsanctioned street art where the work could be removed from the property. This area of the law is by no means fleshed out, but courts have found that graffiti, even when put up without permission, may be protected by VARA.

Detroit as a Potential Proving Ground for the Limits of VARA

To put it simply, the future of the rights of street artists, balanced against the rights of property owners, is up in the air, and the city of Detroit is not devoid of incidents that dangerously walk this line. In 2010, a British documentary was released entitled “Exit through the Gift Shop,” which was a tongue-in-cheek and indirect story of the world of street art and the career an anonymous street artist of international fame that goes by the name “Banksy.” Shortly before the release of the documentary, a work was discovered on a wall in the abandoned Packard Plant that had all the signs and style of an original Banksy work. It was simply a painting of a child holding a bucket and painting the words “I remember when all this was trees.” With the high profile of Banksy and the anticipated value of an original Banksy work, buzz was quickly generated about its sudden appearance.

What happened next was a circus. A Detroit art gallery entered the grounds of the Packard Plant, found the work, cut the wall it was painted on out of the rest of the structure, and removed it under the claims that it needed to be preserved and protected. The owner of the Packard Plant claimed that it was the owner of the Banksy work, as it was affixed to a wall on the property, and filed a lawsuit. And then the City of Detroit stepped in, started seizing assets, and foreclosed on the Packard Plant property for unpaid taxes. Banksy remained out of the public eye and would not admit to the work’s authenticity, and local artists made wild claims that they had created the work. The gallery, despite earlier promises that the work was removed to preserve it and protect it, sold it at auction years later. Nothing was handled well – it just looks bad from every angle.

The City of Detroit is in a strange position. The business world looks at Detroit as a city of rebirth, with endless potential to revitalize and reshape properties for the future. The art world looks at Detroit as “ruin porn,” in awe of the city’s downward spiral from the past to present and recognizing a poetic and societal beauty in it. Those two worlds are currently sharing the same wall space, and they often do not play nice with each other. The one link that ties these worlds together under the law is VARA and the sparse (but developing) case law that goes along with it. Whether you are an artist or a property owner, you cannot turn a blind eye to VARA. One man’s trash is another man’s treasure – some graffiti on a building side may be much more valuable than you think.