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Art or Blight? Developers Should Think Twice Before Removing Graffiti

6/3/20

By: Jennifer Adair

In an opinion heralded by the street art community, the United States Court of Appeals for the Second Circuit affirmed a $6.75 million award of statutory damages against a building developer who willfully violated the Visual Artists Rights Act of 1990 (“VARA”) when he painted over popular graffiti.  Castillo v. G&M Realty L.P., 950 F.3d 155 (2020) presented an extreme example of VARA litigation involving Long Island City’s 5Pointz, a series of dilapidated warehouses that became a popular art installation when the building developer permitted prominent street artists to cover the walls with aerosol art. The developer brought in an acclaimed street artist to act as a curator of the building, selecting artists who displayed their works on a rotating basis. 5Pointz became an area attraction, featured in movies, TV shows, music videos, and countless Instagram posts.

That is, until the developer decided to revamp the property.  Over the objections of the curator, the artists, and the community, and while litigation concerning the matter was ongoing, the developer instructed workers to enter the property in the dark of night and paint over the artwork, an act that was found to constitute a willful violation of VARA.

VARA, 17 U.S.C. § 106A, was created to give artists a non-transferable lifetime authorship interest in works, even if the artists are no longer in possession of their works, in order to prevent “distortion, mutilation, or other modification of the work which would be prejudicial to his honor or reputation.” Further, it gives artists the right to “prevent any destruction of a work of recognized stature” by requiring building owners to provide the artist with a reasonable opportunity to remove the work before its destruction.

After an extensive factual inquiry spanning three weeks, the 5Pointz artists persuaded the court to award statutory damages for the destruction of their work, even though by its very nature aerosol art is temporary. At what point does cleaning up blight become destruction of art under VARA?  Developers should ask themselves:

• Does modification of the work prejudice the honor or reputation of the author?
• Is the work of a recognized stature?
• Does the work have artistic quality?
• Has the work been recognized within the artistic community?
• Has the high status of the work been acknowledged?

If the answer to any of these questions might be “yes,” developers would be well-served by seeking legal advice.

For more information, please contact Jennifer Adair at jadair@fmglaw.com.