Pre & Post VARA: A Study of the Protection of Public Art

June 29, 2022

Image Caption: “Dondi 1979 (IRT express train)” by JJ & Special K is licensed under CC-BY-SA 2.0

By Tokunbo Fashanu and Julianne Schmidt.

What kind of rights do artists have regarding works created for a public space? Who controls the future of government commissioned art? Do artists have any rights if their work is removed by a government entity? These are some of the questions that led to the enactment of the Visual Artists Rights Act (“VARA”) in 1990 (17 U.S.C. § 106A.), now over 30 years in effect.

The Visual Artists Rights Act “provides that an author who has created a visual work has the right to claim authorship of that work, prevent the use of their name for any work that they did not create, and/or prevent the use of their name as a creator of a work of art if it has been distorted, mutilated, or modified in a way that would be ‘prejudicial to his or her honor or reputation.’”^[1] It offers some enhanced protections to visual artists working in the United States. The enactment of VARA was the first time federal law recognized an artist’s moral rights in their works beyond traditional property law.^[2] However, VARA stops short of affording all-encompassing rights for works of art, applying only to qualifying examples of visual art.^[3]

The following article analyzes the landmark pre-VARA case, Richard Serra v. US General Services Admin, against two recent cases that cite violation of VARA in their respective complaints. All three examples deal with federal or state entities and contractors that are accused of having destroyed the plaintiffs’ works. This comparative analysis reveals how VARA has contributed to shifting the legal landscape safeguarding public art and has impacted the development of case law addressing artists’ rights in the United States. Despite its shortcomings, VARA has come to play a key role in the protection of public artwork, as noted by Serra in the aftermath of his 1987 lawsuit.

Richard Serra v. US General Services Administration (1987)

According to remarks made by Representative Robert Kastenmeier (WI) during his introduction of VARA in the House, “works in existence on the effective date of the law would be covered only if they are not published until after the effective date. Works created after the effective date will be covered.”^[4] Prior to the enactment of VARA, cases such as Richard Serra v. US General Services Admin (“Serra case”) highlighted the lack of a federal system of moral rights protection for visual art.

In the Serra case, the United States General Services Administration (“GSA”) contracted a sculpture –Tilted Arc– from Richard Serra (b. 1938, San Francisco), which would be designed specifically for use in a designated federal recreational plaza. The sculpture was paid for and erected but over time became the object of intense public criticism. A public hearing was held by the GSA to determine if the sculpture would be relocated. The final resolution was to relocate the work, as it triggered safety considerations and prevented the public from using the space for recreation and community events.Serra sued GSA for violation of his free speech and due process rights, violation of federal trademark and copyright laws, and state law.

The court stated that the purpose of the First Amendment is to protect private expression and that nothing in the guarantee precludes the government from controlling its own expression or that of its agents. They stated that Tilted Arc is entirely owned by the GSA and is displayed on government property. Serra relinquished his own speech rights in the sculpture when he voluntarily sold it to GSA. Nothing GSA has done limits the right of any private citizen to say what he pleases nor has Serra been prevented from making any sculpture or displaying those that he has not sold. Rather, the GSA action in this case is limited to an exercise of discretion with respect to the display of its own property. According to the reports of GSA administrators, William Diamond and Dwight Ink , the primary reason for removal was the fact that the sculpture interfered with the public’s use of Federal Plaza. Additionally, GSA was concerned about public safety and graffiti. Both Diamond and Ink expressly represented that they had not based their decisions on the work’s artistic merit or message. Tilted Arc was deconstructed and removed by t GSA from the federal plaza on March 15, 1989.

Serra & VARA (1990)

“One of our most important responsibilities is to provide an environment which will promote the arts and enhance our cultural heritage.”^[5]

-Senator Edward Kennedy (MA) during his introduction of the Visual Artists Rights Amendment in the Senate (September 9, 1986)

At the time of Serra’s filed complaint against GSA (December 1986), Senator Edward Kennedy (MA) had just introduced the Visual Artists Rights Amendment in the Senate to alter copyright law for the visual arts.^[6] It would take another four years for the ideas proposed to be adapted and passed into law. Acknowledging the importance of VARA for the protection of public art, Serra would come to write in an article for the Nova Law Review: “such moral rights legislation would have prevented the US government from destroying Tilted Arc.”^[7] Despite the final decision in Richard Serra v. US General Services Admin, the artist’s discussion of VARA here marks the beginning of recognition of the importance of this act in future cases considering the protection of public art.

Cavallaro et al v. SLSCO, Ltd. and Ultimate Concrete LLC (2020)

Cosimo Cavallaro (b. 1961, Montréal, Canada) drafted the plan for his “Cheese Wall” along the US-Mexico border in late 2018. Under the tagline Make America Grate Again, Cavallaro raised donations through GoFundMe to support his quarter-mile long construction of a wall made from expired fifty-pound blocks of Cotija, a Mexican hard cheese.^[8] The idea behind the work stemmed from former President Trump’s executive order to erect a border wall in the same location. Cavallaro intended to expose the futility of the political motivations for walls and boundaries, revealing how they are “perishable” in the same manner as his chosen medium.^[9] His goal was to later create bronze casts of the cheese blocks used in order to display parts of his project throughout the globe.^[10]

The construction site was located on a 14-acre plot of land adjacent to the border wall and leased by the non-profit Art Above Ground, which then provided Cavallaro with the space to execute his design. Cavallaro began work on the wall in March 2019. By August of the same year, the wall had reached six feet tall, three feet wide, and almost seventy feet long. At this point, Cavallaro and Art Above Ground worked to publicize the project to raise funds for expanding the work.

This area along the US-Mexico border abutted border wall work undertaken by SLSCO, a US government contractor operating in the San Diego county area, and Ultimate Concrete, a subcontractor for SLSCO. The complaint states that Israel Evans, an Ultimate Concrete employee who had previously donated to the artist’s project, contacted Cavallaro on October 23, 2019 to ask if he wished for the company to remove his wall – an offer Cavallaro rejected. The artist then returned to his worksite on November 16, 2019 only to find that his Cheese Wall had, in fact, been destroyed. Machinery tracks and border wall slats covered the private property.

Newly_built_US_Border_barrier_in_San_Diego_and_El_Centro_(2)

Caption: White House, Newly Built US Border Barrier in San Diego and El Centro, June, 18, 2019.]

In the lawsuit filed on November 4, 2020, Cavallaro argues SLSCO and Ultimate Concrete’s actions caused both emotional and economic harm, destroying his artistic vision and leaving him with the sunk costs of lost materials. Cavallaro claimed violation of the Visual Artists Rights Act, noting that Cheese Wall fell under VARA and that the defendants committed the “intentional distortion, mutilation, and modification of the Cheese Wall [in a manner that was] prejudicial to Cavallaro’s honor and reputation.”^[11]

Cavallaro’s case serves as a recent illustration of VARA’s application against the unilateral destruction of artwork by government contractors. Israel Evans’ donation to Cavallaro’s project seems to self-confirm the work’s “recognized stature” (as outlined in VARA). At the least, Evans’ affiliation with Ultimate Concrete may illustrate that the dismantling of Cheese Wall was intentional, considering he was aware of the status of the structure as a work of art and had contacted the artist prior to its destruction. It is most clear that Cavllaro’s case will benefit from what Serra’s case lacked: a legal framework – despite its limitations – for protecting the work of visual artists from unlawful removal or destruction.

McLeer et al v. New York City Police Department; City of New York (2021)

The destruction of public art by government entities has been perhaps most apparent in New York City’s “Wars on Graffiti.” These battles against street art were declared by several mayors and New York Police Department officials over the past fifty years, beginning with NYC Mayor John Lindsay’s term in office (1966-1973).^[12] Lindsay, who described graffiti as “depressing,”^[13] led the charge in criminalizing the making of graffiti, which remains a class A misdemeanor in the state of New York if created “without the express permission of the owner or operator of said property.”^[14] Despite these efforts, anthropologist Maggie Dickinson notes that even Lindsay himself knew the anti-graffiti campaign would turn out to be ineffective.^[15]

Decades after Lindsay’s initiative, technology has continued apace with NYC’s “graffiti cleanup campaign.” An ArcGIS platform titled “Graffiti Initiative: Cops & Community Working Together” highlights before and after images of painted over graffiti in different blocks across the boroughs. How does this initiative impact and infringe on the rights of NYC’s street artists?

On June 1, 2021, Michael McLeer (b. 1961, Brooklyn; also known as “Kaves”) filed a class action lawsuit against the New York City Police Department and the City of New York that addressed this intersection of street art, government-sponsored destruction, and the Visual Artists Rights Act. According to the complaint, on April 10, 2021, officers of the NYPD 84th Precinct posted images on Twitter depicting the painting over of Kaves’ “Death from Above,” a mural created in August 2008. Located in Brooklyn, the mural was permitted by both the owner and tenant of the property. Kaves had registered, and still owns, the copyright for this work, which had been reproduced in several publications, books, tv shows, and advertisements over the past decade. The property owner, community members, and the artist himself expressed outrage over the NYPD’s disregard for the artistic significance of the mural.

The complaint details an important reality in the post-VARA landscape for public art: many government entities, such as the NYPD, lack training programs to address the rights of street artists and the impact of the Visual Artists Rights Act.^[16] This underscores the need for the understanding of VARA to become more widespread. Proactive discussions on VARA as applied to public art may help to mediate disputes between the government and artists before intentional or unintentional destruction takes place.

In July 2020, the New York Times published “Graffiti Is Back in Virus-Worn New York,” spotlighting the next generation of street art responding to the pandemic.^[17] The article reminds us that potential clashes between artists, VARA, and government entities will not wane in the coming years. Looking back at the decision in Castillo v. G&M Realty L.P. – which awarded $6.75m in statutory damages to 21 artists whose work was whitewashed by a real estate developer in 2013 – the Kaves case, alongside the precedent set by Castillo v. G&M Realty L.P., may continue to trailblaze for future cases contemplating the protections for street art.^[18]

Conclusion

Writing to the New York Times in 1989, Serra argued “the destruction of Tilted Arc established a precedent for the priority of property rights over free expression and moral rights of artists.”^[19] Over 30 years after the decision in Richard Serra v. US General Services Admin, it is clear that the protections afforded by VARA have become key features in cases addressing the protection of public art from removal or destruction. Most recently, the Supreme Court refused to hear the appeal in Castillo et al. v. G&M Realty L.P., upholding Judge Block’s 2018 ruling based on VARA in favor of street artists’ rights.^[20] This 5Pointz case (cited as a “landmark decision”^[21] for artists’ rights) and VARA have worked to reverse the precedent that Serra feared his case had set.

As of today, VARA does not cover: “works made for hire, posters, maps, globes or charts, technical drawings, diagrams, models, applied art, motion pictures, books and other publications, electronic publications, merchandising items or advertising, promotional, descriptive, covering, packaging material or container – nor does it cover any work not subject to general copyright protection.”^[22] These qualifications set in the definition of visual art will cause controversy over the limitations of VARA’s application for the foreseeable future. Serra notes that following the enactment of VARA the GSA “immediately amended their contracts with artists so that the protection guaranteed by federal moral rights legislation would not apply.”^[23] The protections afforded to public works of art are complex and ever-evolving. In the aftermath of Tilted Arc, VARA and the common law that has developed since its enactment provide the crucial framework that Serra’s case lacked for Cavallaro et al v. SLSCO, Ltd. and Ultimate Concrete LLC and McLeer et al v. New York City Police Department; City of New York.

About the Authors:

Adetokunbo Fashanu was a Summer 2021 Legal Intern at the Center for Art Law. She is currently pursuing a joint JD/MBA degree from the Cleveland-Marshall College of Law. She has an undergraduate degree from the University of Oklahoma in criminology. As an artist herself, Ms. Fashanu plans to practice as an intellectual property lawyer advocating for all types of artists.

Julianne Schmidt was a Summer 2021 intern at the Center for Art Law. She is a recent graduate of Johns Hopkins University, where she received her Bachelor of Arts in International Studies and History of Art.

Additional Reading: