By Musetta Durkee.
On February 6, 2019, the Center for Art Law organized a panel at Fordham Law School entitled “International Perspectives on Street Art”, co-sponsored by the Fordham Art Law Society, and the Entertainment, Arts & Sports Section of the New York State Bar Association. The co-moderators Carol Steinberg (attorney at the Law Office of Carol J. Steinberg), and Louise Carron (Center for Art Law’s Executive Director), led panelists – William L. Charron (Partner at Pryor Cashman), Diego Figueroa-Rodriguez (Of Counsel at DLA Piper), Marie-Cecile Flageul (Co-Founder of 5Pointz Creates and Curator of MoSA), and Renee Vara (Founder and Director of VARA ART) – in a lively cross-continent discussion of the legal status of street art, past challenges, and promising developments for the future.
Competing or Coexisting: Balancing the Rights of Street Artists and Property Owners
Ms. Carron introduced legal issues in street art as primarily a tension between the physical property rights of real estate owners and the intellectual property rights of street artists. However, countries balance these competing rights differently. France and the EU take a “social approach” where the artist’s work reflects her ideas, labor, and effort and therefore must be protected. By contrast, the United States takes an “economic approach” where intellectual property protections are meant to incentivize creation and financial investment, not necessarily to protect an artist’s labor or provide a monopoly.
Ms. Carron noted that even though Europe and the United States have these different approaches, there is very little case law in Europe because in civil law countries judges do not have the power to create precedent. Some notable exceptions include Invader v. Peugeot[i] and a German decision involving The Berlin Wall.[ii] In the latter case, the court held that artists were entitled to receive fair compensation for the works they painted on the Berlin wall, portions of which had been sold without their knowledge. The artists had admittedly painted on the government’s property, but the latter was not entitled to selling it for profit without the artists’ approval.
Ms. Carron noted that despite this inherent tension between physical property owners and artists, some owners welcome street artists. Mr. Charron agreed, explaining that the distinctive feature of street art is that the “canvas is someone else’s property.” Because of this, real estate owners are concerned about the “investment-backed expectations” in their property rights, whereas artists’ interests are in their expression and “sweat equity.” In street art, these two interests become enmeshed.
But in the United States, as a free-market, capitalist society artists’ moral rights aren’t recognized, with the notable exception of the Visual Artists Rights Act of 1990 (“VARA”)[iii] which protects the integrity of the work itself (to be discussed below). However, Mr. Charron noted that street artists are an exception to VARA. With street art, there is an assumption of risk, Mr. Charron explained, and in some cases this might create a dent in the copyright expectations of the artists. The underlying question is what does society want to protect more, artists’ rights or property owners’ rights.
Ms. Vara disagreed with the premise that there is an inherent conflict between street artists and property owners, noting tons of instances where the two peacefully coexists – for example, murals and beautification projects. Street art is not only graffiti. Indeed, Ms. Vara mentioned a business study showing that property values actually increase when there is street art, and therefore property owners are actually economically benefiting from street artists. Mr. Figueroa-Rodriguez agreed, noting that Wynwood Walls in Miami has increased the property values of the neighborhood and that has been very good for the community.
Street Artists Have Their Own Property Interests & Artistic Integrity
Property owners are not the only parties to economically benefit from the work of street artists. Advertisers, movie-makers, influencers, and marketers also want to use street artists’ works, and this is another complex legal area today.
Ms. Carron discussed the legal grey area that still exists today in copyright law when it comes to street art. Under the doctrine of unclean hands, there is a preconceived idea that graffiti artists cannot claim rights or seek the help of the courts because they have illegally created their work. In reality, there is no such provision in the Copyright Act or in the Berne Convention.[iv]
One notable case is H&M v. Jason Williams A/K/A Revok,[v] where Revok claimed that an H&M advertisement featured his work without his permission or compensation. After seeing his work in a photograph and video from H&M’s New Routine sportswear campaign, Revok’s lawyer sent H&M a cease-and-desist letter asking it to refrain from infringing on Revok’s copyrighted work. H&M initially responded by filing a countersuit, seeking a declaratory judgment that said because Revok’s street art was done illegally (i.e. without permit or permission by the property owner), it could not be protected under copyright law. This case reached a settlement after fellow street artists and supporters of the street art community started boycotting H&M on social media.
Another interesting case is Fasoli et al v. Voltage Pictures, LLC.,[vi] where street artists “Jaz” (Franco Fasoli), “Ever” (Nicolas Escalada), “Troy” (Troy Lovegates), and “Other” (Derek Mehaffey) claimed their mural was copied to be used in several scenes in and promotional materials for a movie, The Zero Theorem, without permission or compensation to them. However, the Fasoli case settled before reaching the discovery stage of litigation.
Mr. Figueroa-Rodriguez, who represented the artists, explained that in addition to the street art copyright issues, the case was complicated because there were international considerations: the mural in question was painted in Argentina, the copy of the mural was in Romania, two plaintiffs were from Argentina, one plaintiff was from Canada, and there were ten defendants with locations all over the world. In the end, Mr. Figueroa-Rodriguez brought suit in Illinois arguing there was federal personal jurisdiction over the defendants because they advertised their movie in Chicago, though the case was ultimately transferred to California. Mr. Figueroa-Rodriguez approached the case from several legal positions – first, he sent a cease-and-desist order, he then sued for injunctive relief, and also sued under consumer fraud laws. Defendants claimed a number of defenses, including fair use and invalid copyright because the registration in Argentina.
Ms. Flageul noted that now, many studios and companies work quite diligently to try to contact street artists whose work is in their films, photos, or advertising campaigns. Oftentimes, an agreement can be reached, and if not, or if the artist cannot be found, studios and companies will create new works so as not to violate the street artist’s copyright.
VARA & Protecting the Moral Rights of the (Street) Artist
Ms. Carron continued, as mentioned above, that the EU and the United States have different approaches to the rights of artists. Under the Berne Convention for the Protection of Literary and Artistic Works, first accepted in 1886, the moral rights of French artists are protected – and these rights are indefinite, unwaivable, unassignable, and persist past death. The United States adopted the moral rights concept one hundred years later with the adoption of VARA. However, Ms. Carron emphasized, VARA only applies to visual art, ceases upon the artist’s death, can be assigned, and does not apply to works for hire.
Importantly, VARA only requires that a work be proved to have “recognized stature” in cases of complete destruction of the work.[vii] However, as explained by the Art Law Committee of the New York State Bar Association’s letter to the Library of Congress,[viii] proving “recognized stature” has led to at least two issues in VARA cases. First, courts have followed tendency to set this “recognized stature” as too high a bar. In Carter v. Helmsley Spear,[ix] the court introduced a two-tiered analysis of “recognized” and “stature,” requiring the plaintiff to show “(1) that the visual art in question has ‘stature,’ i.e. 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.” Second, some courts have required that a work have been seen by the public to meet this standard.[x]
Ms. Vara noted that VARA issues can arise not only when a work is to be purposefully removed or destroyed, but also when a work is accidently damaged. For example, appraisers are hired when a work is damaged and they have to sort out how conservation of the work will proceed. Sometimes collectors want the conservation to be completed under a non-disclosure agreement. But sometimes even restoration can constitute a violation of the work’s integrity under VARA. The artist could disavow the work, in which case the collector (and the insurance company) would lose a lot. As such, Ms. Vara approaches conservation work as a collaboration between the artist, collector, and insurance companies.
However, VARA was adopted because of a case of removal and destruction of a public, commissioned sculpture. In Serra v. US General Services Admin.,[xi] the U.S. General Services Administration’s Arts-in-Architecture program commissioned artist Richard Serra to install a large curving wall of steel called Tilted Arc in the Federal Plaza in New York City. The installation generated strong controversy, with some calling for the work to be removed. Mr. Serra said that the work was site specific, and it was relocated, he would remove his name from the work. After a public hearing, the GSA decided to remove the sculpture from the plaza. Serra appealed and failed, and in March of 1989 the sculpture was removed from the plaza overnight, cut into pieces, and taken to a scrap-metal yard.
Following Serra, VARA was enacted in 1990. In one of the first cases brought under VARA, Carter v. Helmsley-Spear,[xii] plaintiffs John Carter, John Swing, and John Veronis, known as “Jx3,” entered a contract with SIG Management Company to “design, create and install sculpture and other permanent installations” in “The Factory Building” in Long Island City. In the contract, parties agreed that Jx3 would retain copyright in their works, SIG would provide payment for each week of work performed, and SIG would receive 50% of all proceeds from any use of the works. Three years later, a new management company, Helmsley-Spear, took over the building and intended to remove the existing artwork and prevent further work to be made. Jx3 sought injunctive relief under VARA, which the court granted in relation to preventing the artworks from being destroyed, but not in preventing new works to be created. No copyright claim was considered because plaintiffs failed to register their work. The management company appealed, and the Second Circuit reversed the lower court’s ruling find that the artists’ works were works made for hire, and such works were not protected under VARA, and therefore vacated the injunction.
Perhaps the most well–known VARA case involving street art is Cohen v. G&M Realty L.P.,[xiii] or the so-called 5Pointz case. Ms. Flageul, co-founder of 5Pointz, gave an overview of the facts of the case, which is currently on appeal.
5Pointz was a warehouse in Long Island City upon which dozens of street artists created works of several years, under the leadership of Meres One (who attended the conference), who was an authorized tenant. They did so with permission of Jerry Wolkoff and the building owners, but with little interaction between the parties. The owners then sought to demolish the building and build high-rise condos. Meres One, one of 21 aerosol artists, sought an injunction in federal court to have enough time to document, remove, and protect their work prior to demolition of the building. After four days in court, on November 12, 2013, Judge Block denied the injunction and declared that a written opinion would follow. Between November 12 and 20, 2013, Wolkoff denied artists access to 5Pointz, and on November 20, the artists discovered that the building had been whitewashed overnight. On June 17, 2014, the artists filed an official complaint against Wolkoff under VARA, intentional infliction of emotional distress, conversion, and property damage. After a three-week jury trial in October 2017, the judge ordered the defendant to pay the artists a total of $6.75 million in damages on February 12, 2018, which the maximum statutory damages available under VARA. The case is currently on appeal.
Ms. Flageul responded that in the 5Pointz case, the property owner prevailed, but the only reason the artists received any settlement was because the property owner whitewashed the art off the building overnight and without the required 90 days’ notice to the artists as had been ordered by the court. Ms. Vara followed up on this and noted that there were easy ways to cure the 5Pointz case – the judge ordered a 90-day notice, and in that time artists could have documented their work and even could have removed their work, prior to demolition.
The Role of Expert Testimony in 5Pointz & Beyond
Ms. Vara acted as the art expert for Plaintiffs and testified before Judge Block and the jury. She explained that the “recognized stature” prong of VARA had never been proven in court, and as such there was little precedent, even in the fine art context. Ms. Vara noted that because 5Pointz was an organically-created cultural center, the artworks did not have traditional fine art markers, for examples labels or title. Also, most of the art from 5Pointz was published digitally. As such, in preparing her 750-page expert report and testimony, Ms. Vara needed to engaged in both traditional art historical research and digital art history.
Under the VARA statute, Ms. Vara had to show that each of the 49 works by the 5Pointz artists at issue in the suit were first, deemed a work of merit and second, recognized by either art experts, members of the art community or some cross-section of society. Ms. Vara argued the works were recognized by all three groups, though only recognition by one is required under the statute. To do so, Ms. Vara interviewed artists on the labor involved in each work and the quality of each work. She noted that there is a strict hierarchy in street art of quality, and 5Pointz works were considered by artists to be at the top of that hierarchy, not least because of their large scale and collaborative genesis.
Ms. Vara explained that the Defendant’s expert used a standard which used an extremely high bar to determine whether a work was a work of “recognized stature,” limiting such works to that of a “masterpiece.” Ms. Vara took a lower bar, looking at digital popularity (about 10% of her evidence was from social media), noting that also no visual work would receive protection under VARA if each had to be a “masterpiece.”
Mr. Charron noted that much like the “transformative use” prong in a copyright fair use defense test, “recognized stature” is difficult to prove, since it is not an objective standard. He suggested looking at First Amendment analogies, for example where different kinds of speech receive different levels of protection.
Ms. Vara disagreed with Mr. Charron noting that all art cases are a battle of the experts, and in this case Ms. Vara used actually quantifiable evidence – through digital research, scrapping, etc. – to show the 5Pointz works were works of recognized stature. Ms. Vara suggested a better analogy would be with authenticity cases where there is quantifiable evidence presented by experts.
Ms. Vara noted a 2006 case in involving Kent Twitchell[xiv] who had painted a large-scale mural in California on a federal government building that was painted over without Twitchell’s consent. The case ultimately settled for about $1.1 million. Under the VARA analysis, there was only one scholar who wrote one letter regarding the work being a work of stature, however the community spoke out in support of the artist and that was sufficient to meet the standard.
Mr. Charron discussed the Court of Arbitration for Art (CAfA), which is due to open in April 2019 and would provide a panel of arbiters who understand art issues. This was born, Mr. Charron explained, from observing courts struggling with cases involving art, and would hopefully provide more reliable decisions in art law cases. The Court would also provide a pool of experts and one expert would be assigned each case. This is believed to avoid the recurring “battle of the experts” and provide more objective expertise. And even though corporations would not choose arbitration because of financial need, they might be incentivized to consider arbitration with artists because publicity, privacy, and reporting requirements (for public corporations) might be. Stay tuned for an article on the blog.
Legacy of 5Pointz & Takeaways for Street Artists and Attorneys, Here and Abroad
In discussing the legacy of the 5Pointz case, Ms. Flageul began with a plea to stop using the terms “street art” or “graffiti” and instead say simply “art” or maybe “aerosol art.” She noted that 5Pointz has inspired sanctioned street art around the world. For example, even her small hometown in a village in France, known for their sea scallops, has flown in street artists to contribute to the townscape. Indeed, after the 5Pointz case, Ms. Flageul curated the Museum of Street Art (MoSA) on the Lower East Side in New York. The museum is located in the Citizen M NY Bowery Hotel – the hotel makes the exhibitions open for free 7 days a week – and it features aerosol art created by 5Pointz artists.
Ms. Flageul emphasized that vandalism, of course, is illegal, but street art deserves protection. For example, in the Revok case, Revok didn’t want his art associated with H&M as a moral issue – the money from the settlement went to a public school in Detroit. Ms. Vara added that though VARA will not protect a work where there is “inherent vice,” however it seems that illegal art is becoming more socially acceptable.
Mr. Figueroa-Rodriguez stated that the legacy of the 5Pointz case is for artists to raise the VARA statute in their pleadings. He noted that in his Fasoli case, they did not raise VARA, and instead relied solely on copyright and consumer fraud arguments.
Mr. Charron explained that in 5Pointz, the art was found to be an easement of some kind on the property and this was an interruption of the property owner’s rights to sell the property. Mr. Charron noted analogous scenarios, such as a bird being protected under the Endangered Species Act, where, however, the bird could be moved. (Ms. Vara noted that street art, too, can be removed from a building with ease, so long as the artists have notice.) Mr. Charron also suggested looking at takings clause cases, examining “curability,” i.e. permanent structures versus those that can be moved. Another analogous area is tenancy, where, for example “permanent improvements” to the property belong to the owner, not the renter. And, finally, the laws of adverse possession, where the standard is whether property was openly and notoriously taken over.
Ms. Flageul added that another legacy of 5Pointz is to empower artists and inspire them to start investigating their rights and expanding opportunities for collaboration. Today, street artists have forms that show they are authorized to be making their art on a specific property, and they know to have those forms on them at all times. Now, instead of fear of not being allowed to make their street art, artists are more worried about corporations using their work without permission or compensation (as discussed above).
Ms. Vara added that most people still think of street artists as vandals, and not worthy of protection. On the contrary, street artists are quite entrepreneurial, but they don’t have the galleries to protect them in the way that fine artists have. The 5Pointz artists are professional artists – they have done work with brands and professional organizations.
Ms. Carron noted that social media has had a great impact on the growth of street art around the globe, but nevertheless, most artists do not know their rights.
Mr. Figueroa-Rodriguez agreed, and added to make sure to register one’s works in time when thinking of bringing suit. He also encouraged lawyers to do pro bono work with artists. Mr. Figueroa-Rodriguez also noted that probably 90% of cases settle because of legal fees. In some cases, the strategy is to infringe first and then pay because most corporations don’t think artists will sue, and even they do, most companies have insurance that will pay copyright settlements.
Mr. Charron emphasized the importance of contracts, and that while artists’ rights are important, the power of property owners and corporations should not be underestimated. Even if artists have the law on their side, they might not have the resources to preserve against the larger property owners and corporations.
Ms. Vara said that art is very capitalistic right now and she does not see property and art as operating in different spheres. Some property owners have great reputations as community builders and have done a lot of good. She encouraged property owners to do their due diligence and if they commission something, to have a contract or work-for-hire or VARA waiver, if they want control over the works. She also noted that artists don’t have great access to resources and they need information and support to know how to proceed.
Ms. Flageul concluded by stating that most people are trying to do the right thing. Film producers are now asking about who they street artists are in a certain shot and making efforts to get permission or provide compensation.
The laws and public perception around street art are changing. Street artists must be given opportunities to learn and have their rights respected. Lawyers can help educate artists of their rights prior to creating any work, and encourage proper use of contracts, thereby increasing the likelihood their rights will be protected and that their work will be recognized as a serious and rigorous art practice. If litigation is necessary, lawyers can also help represent these artists, especially through pro bono efforts. VARA was an important first step in helping to protect visual artists’ work from being destroyed. But increased awareness of artists’ rights and acknowledgement of the benefits and downfalls of street art, are important continuing steps in giving artists the recognition and respect they deserve.
The Center for Art Law would like to thank all the panelists for their vigorous participation and dedication, the Fordham Art Law Society for hosting the event, and the Entertainment, Arts and Sports Law Section of the New York State Bar Association for co-sponsoring the panel.
[i] Judgment of the Paris lower civil court, 14 November 2007, 14 nov. 2007, RG n° 06/12982.
[ii] Judgment of the First Chamber of the Federal Court of 23 February 1995, I ZR 68/93.
[iii] 17 U.S.C. § 106A.
[iv] Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979 S. Treaty Doc. No. 99-27 (1986) [The 1979 amended version does not appear in U.N.T.S. or I.L.M.]
[v] H&M v. Jason Williams A/K/A Revok, No. 1:18-cv-1490 (E.D.N.Y. filed March 16, 2018).
[vi] Fasoli et al v. Voltage Pictures, LLC., No. 14 C 6206 (N.D. Ill. December 22, 2014).
[vii] 17 U.S.C. §106A reads in relevant part:
a) Rights of Attribution and Integrity.—Subject to section 107 and independent of the exclusive rights provided in section 106, the author of a work of visual art
. . .
(2) shall have 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; and
(3) subject to the limitations set forth in section 113(d), shall have the right
(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.
[viii] “Response to Study on the Moral Rights of Attribution and Integrity – Request for Recommendations to Address Issues Arising from Judicial Interpretation of “Recognized Stature” Standard” (March 2017).
[ix] Carter v. Helmsley Spear, 861 F.Supp. 303, 325 (S.D.N.Y. 1994).
[x] See, e.g., Scott v. Dixon, 309 F. Supp. 2d 395, 397-98 (E.D.N.Y. 2004) (finding a work did not have recognized stature because the work was located in a private back yard and had not been seen by the public or ciritics); Pollara v. Seymour, 344 F.3d 265, 271 (2d Cir. 2003) (Gleeson J. concurring) (agreeing with dismissal of VARA claim noting that “it seems clear that a work that has never been exhibited cannot, as a matter of law, be a work of recognized stature.”).
[xii] 71 F.3d 77 (2d Cir. 1995), 861 F. Supp. 303 (S.D.N.Y. 1994).
[xiii] Cohen v. G&M Realty L.P., No. 13-CV-05612 (E.D.N.Y. Feb. 12, 2018).
[xiv] Kent Twitchell v. West Coast General Corp., No. 2:06-CV-04857 (C.D. Cal. Aug. 9, 2006).
Legal Resources for Artists:
- Volunteer Lawyers for the Arts (multiple state chapters). Here.
- Lawyers for the Creative Arts. Here.
- Artists Rights Society. Here.
- K. Brown, An Art-Covered Stretch of the Berlin Wall Has Now Been Saved From Encroaching Real Estate Developers, Artnet News (2018). Here.
- Center for Art Law, Part I: Who Owns Street Art? (2013). Here.
- Center for Art Law, Part II: UNESCO Forced to Consider Street Art as Cultural Heritage (2013) Here.
- W. Charron, Painting Your Way to a Lifetime Tenancy Through the Visual Artists Rights Act, Bloomberg Law (2017). Here.
- B. Elias, Street Art: The Everlasting Divide Between Graffiti Art and Intellectual Property Protection, 7 No. 5 Landslide 48, 48 (2015). Here.
- HF, Das Bombing: Graffiti in Germany and Europe, The German Way and More (2014). Here.
- B. Funk, CPR Perspective: The Takings Clause of the Fifth Amendment, Center for Progressive Reform. Here.
- D. Gonzalez, As Legal Graffiti Walls Disappear, Street Artists Ponder Future, The New York Times (2013). Here.
- S. Gray, Rebels to the Core: 10 Memorable Street Art Arrests, Widewalls (2015). Here.
- Ephrat Livni, An Artist Bought a Banksy Piece Just So He Could Destroy It, Quartzy (2018). Here.
- C. Smith, Street Art: An Analysis Under U.S. Intellectual Property and Intellectual Property’s ‘Negative Space’ Theory, 24 DePaul J. Art, Tech. & Intell. Prop. L. 259 (2014). Here.
- The Straits Times, Taiwan’s Graffiti Artists Get a New Urban Canvas as Officials Designate Legal Graffiti Zones (2015). Here.
- Street Cred: Copyright Does Matter, Art (2018). Here.
About the Author: Musetta Durkee is a lawyer and freelance writer focusing on the arts. Formerly an associate with WilmerHale, she received her J.D. from University of California, Berkeley, School of Law and her M.A. in Performance Studies from New York University.