The Legal Protection of Street Art under VARA

Giselle Ayala Mateus, Esq.

What is Street Art?

Street art is a unique type of art that has gained recognition over the years. Street Art is visual art created in public locations for public visibility, which may or may not be located in public streets and buildings. For purposes of its definition, street art has been associated with the term “independent art”.

The particularity of street art is that the artist usually tries to leave with it a particular, unique, or personal message like a political opinion, a statement about feelings, etc. The idea of street art is to expose the art so as to encourage contact with the viewer, the creations of street artists are exposed in the streets where people can enjoy and value them. This also has the purpose of promoting the artist and elevating the stature of the creative piece.

Is Street Art entitled to Legal Protection?

Until recently, it was not clear whether street art is entitled to legal protection. However, nowadays it is clear that street artists are entitled to protect their work against misappropriations and or unlawful destruction. These rights are often known as Moral Rights. One of the most important pieces of legislation that protects street artists’ rights is VARA, the Visual Artists Rights Act. The statute was issued in 1990. The statute became the center of important discussions around 2013 when a New York federal court decided whether street art is entitled to legal protection under VARA.  In the judicial decision where the issue was discussed the court explained:

“VARA amended existing copyright law to add protections for two “moral rights” of artists: the rights of attribution and integrity. Moral rights are distinct from general copyrights, and they rest upon the “belief that an artist in the process of creation injects his spirit into the work and that the artist’s personality, as well as the integrity of the work, should therefore be protected and preserved.” (Emphasis Added) Cohen v. G&M Realty L.P., 988 F. Supp. 2d 212

The right of Attribution

 The right of attribution generally consists of the right of an artist to be recognized by name as the author of his work or to publish anonymously or pseudonymously, the right to prevent the author’s work from being attributed to someone else, and to prevent the use of the author’s name on works created by others, including distorted editions of the author’s original work.

The right of Integrity

The right of integrity allows the author to prevent any deforming or mutilating changes to his work, even after the title in the work has been transferred. In some international jurisdictions, the integrity right also protects artwork from destruction.

When is a work of street art protected?

Until recently, it was still unclear when is street art entitled to protection. However, as a result of the 2013 decision in Cohen v. G&M Realty L.P., 988 F. Supp. 2d 212. It has been clarified that street artists are entitled to legal protection, and this protection is different from the general protection provided by the Copyright Laws

First, street art is protected under the law as visual art. The definition of visual art, which includes street art, also included the definition includes a painting, drawing, print, or sculpture, existing in a single copy or in a limited edition of copies, but excludes any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audio-visual work.

Second, as opposed to general protection afforded by the copyright law, which requires registration of the work in order to proceed in court, VARA protects visual artworks with the requirement of registration. In other words, copyright registration is not required to bring a VARA infringement action, or to secure statutory damages and attorney’s fees.

The protection of street art under VARA

VARA which gives the author of a work of visual artwork, like street art, the right to sue to prevent the destruction of his or her work if it is one of “recognized stature.”. Therefore, street art is protected when it has attained this value. Additionally, specifically in the context of street art, VARA recognizes that a work of visual art may be incorporated in or made part of a building, and in this form is entitled to legal protection, unless a written waiver was obtained from the artist. In conclusion, to protect the integrity of street Art, two conditions are necessary, the work must be of recognized stature and the artist must have not signed a waiver.

What is a work of recognized stature?

Until the Cohen v. G&M Realty L.P., it was still not clear what the concept of “recognized stature” entails. However, this decision is an important reference to determine whether a work has attained “recognized stature”. In general, art of “recognized stature” is art that experts, the art community, or society in general views as possessing stature. In this decision, the court explained that to determine the “stature” of a piece of art, it is necessary to consider:

1. The opinion of artists, art dealers, collectors of fine art, and other persons involved with the creation, appreciation, history, or marketing of works of recognized sources.

2. The recognition of the artist and public display of the work are important factors that determine the “stature” of the artwork.

3. Creation factors such as actors such as technical ability, composition, color, line work, detail, and also the artist’s credentials.

Finally, regarding the potential temporary duration of street artworks, the court recognized that VARA may protect permanent as well as temporary visual works if the “recognized stature” of the art is demonstrated. Additionally, under VARA artists are entitled to 90 days written notice to allow them to salvage their removable works. Thus, VARA resolves the tension between the building owners’ rights and the artists’ rights.

The significance of 5Pointz and story behind the case

5Pointz was a zone of New York that had for many years housed various commercial businesses. Starting in the early or mid-1990s, the exterior walls become also that place where self-proclaimed aerosol artists placed their works. As a result of this, the zone was then known as the Phun Phactory. To control the situation Jonathan Cohen then approached Gerlad Wolkoff owner of the buildings in 2002 to become the curator of the works that would be permitted to be painted on the walls. Wolkoff agreed and thereafter, Cohen, known in the art world as “Meres One” was one of the principal contributors to the aerosol wall paintings. According to the fact of the litigation, Wolkoff was supportive of creative efforts but wanted somebody responsible to manage them.

In this case, nothing was put in writing. Wolkoff, therefore, orally agreed to permit qualified aerosol artists, under Cohen’s control, to display their works on his buildings. Soon the quality of the aerosol art vastly improved. The site became known as 5Pointz and evolved into a “mecca for high-end works” by internationally recognized aerosol artists. Cohen personally conducted hundreds of school tours, 5Pointz was listed in Time Out New York “as a New York must-see,” and the zone was eventually included in tour guidebooks.

In this case, the litigation was focused on the destruction of the “5Pointz” art site. In 2013, Wolkoff sought to demolish 5Pointz and replace the site with luxury apartments. Cohen learned of this impending development and sought to protect the artwork. When Cohen failed to have the site designated as a cultural landmark and also failed to raise enough money to purchase the site, he and other 5Pointz artists (“Plaintiffs”) sued under VARA to prevent the destruction of the site.

In this case, the court at some point recognized that it was unclear whether Cohen had the right to preserve all the works comprising 5Pointz. However, the court also recognized that Wolkoff also had responsibility.

“After all, Wolkoff gave his blessings to Cohen and the aerosol artists to decorate the buildings, and he did not choose to protect himself from liability by requiring VARA waivers. Moreover, while he was supportive of the artists and appreciated their work, he also stood to benefit economically from all the attention that had been drawn to the site as he planned to market the new buildings’ residences.” G&M Realty L.P., 988 F. Supp. 2d 212

What can I do if I have a dispute to Protect My Work?

Since the Cohen v. G&M Realty L.P litigation artists and legal practitioners have learned that VARA entitles street artists to protect their works. However, it is also important to keep in mind that VARA only protects work of “recognized stature”. Therefore, it is advisable that artists make efforts not only to discuss with building owners, landlords, curators, managers, among others, about their work and their value, but also to make themselves known in the art community. The more exposure an artist has the better chance the artist has to protect his or her work and to attained said “recognized stature”.

In the case discussed here, the evidence provided by Cohen was fundamental for the case. The court explained:

“Each of the 21 plaintiffs/artists testified; they were respectful, articulate, and credible. Folios for each were admitted into evidence collectively containing their professional achievements and recognition in the form of an impressive array of fellowships, residences, public and private commissions, teaching positions, media coverage, and social media presence. Not surprisingly, each of the 21 Folios contained beautiful color prints of the artists’ respective aerosol works of art which are the subject of the lawsuit. […] The Court finds that 37 works on long-standing walls all achieved recognized stature by virtue of their selection by Cohen for these highly coveted spaces, as reinforced by the supportive evidence in the plaintiffs’ Folios…”

The creator of a work of recognized statute may sue to protect his rights, this includes economic damages, as well as damages derived from the destruction of the work or the lack of proper recognition. VARA rights are non-transferrable and are exercisable only by the artist. In regard to the owners of buildings, VARA recognizes and protects street art as works of visual art that have been “incorporated in or made part of a building in such a way that removing the work from the building will cause the destruction, distortion, mutilation, or other modification of the work.”. Considering this, there are two ways for landlords and building managers to protect against VARA liability for art that has been “incorporated in or made a part of a building.”

The use of a Waiver

If the artwork was created and incorporated to the building before VARA’s effective date (June 1, 1991), that artwork may be safely removed from the property. On the other hand, if the work was created after VARA’s effective date, building owners must obtain a written waiver from the artist, this is, a written instrument signed by both the artist and the building owner which:

  • – specifically identifies the work and uses of that work to which the waiver applies; and
  • – specifies that installation of the work may subject the work to destruction, distortion, mutilation, or other modification, by reason of its removal.

If no written waiver has been obtained VARA provides that, artworks of “recognized stature” that have been incorporated into a building can be safely removed if the building owners make a “diligent, good faith” attempt to notify the artist of its intention to remove the work. Under the law, there is a presumption of such an attempt if the building owner sends notice by registered mail to the artist at his most recent address. No VARA claim may exist if such attempts to contact the artist were unsuccessful, or if the owner provides notice, but the artist fails to remove the work or to pay for its removal within 90 days after receiving notice. As an alternative to obtaining a waiver, therefore, a building owner may require that the installation of the art that is to be incorporated into its building be crafted in such a way to allow for its safe dismantling and removal.

Some additional comments…

When considering using graffiti or street art as part of your portfolio or as part of your commercial production, for purposes of advertising, social media, or other marketing it is important to take measures to protect and preserve the work. Although VARA does not require registration, you should consider the registration of the work in the form of a photography or a video, this will give more options when it comes to enforcing your rights as an artist. Finally, keep in mind that the keeps evolving, that there are additional measures you can take by means of well-drafted contracts, and that preventive legal counsel can be your best ally to protect your rights and enforce them.

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