K.E. Gover: The Visual Artists’ Rights Act (VARA) is only twenty-five years old, and it does not yet have a robust history of case law behind it. For that reason, every suit that invokes VARA presents an opportunity for its limits and interpretation to be tested. The claim filed on June 3, 2015 by nine graffiti artists against Gerald Wolkoff, owner of the 5Pointz property, for painting over their work will require the court to make potentially important decisions about some of the more ambiguous aspects of VARA and its applicability their situation. For example, VARA protects works of ‘recognized stature’ from destruction. This serves the widely-held view that some works of art are so important that they become a kind of cultural patrimony: when I buy a Picasso, it is not really mine to dispose of as I wish, even if it is in some (limited) sense my property. The culture also has an interest in its continued existence. On the other hand, if I buy a velvet dog portrait at the local crafts fair and then decide to use it as a doormat, the artist who made the portrait is highly unlikely to prevail in a VARA suit against me. Just imagine a world in which it were illegal to destroy any work of art, not just the really good stuff. The plaintiffs in the 5Pointz case claim that VARA is applicable because they are all professional artists who make work of ‘recognized stature.’ But the Act itself does not specify what counts as recognition, or how much a work must receive, before it is entitled to protection under VARA. Also, just because an artist has ‘recognized stature’ does not mean that all of her works do. When, as in this case, the artworks in question fall somewhere in the vast middle of the recognition spectrum between Picassos and craft fair dog portraits, things get murky.
One of the first lawsuits to invoke VARA, Carter v. Helmsley-Spear, Inc., also argued that the threatened work, a lobby installation, deserved protection because of its recognized stature. In 1994, the artists John Carter, John Swing, and John Veronis, known professionally as “the Three Js” or “Jx3,” sued to prevent the removal of their artwork from the interior of a commercial building in Queens, New York. Three years earlier, they had been hired by the building manager for a thousand dollars a week to cover the lobby’s interior with sculpture and permanent installations. They spent over two years covering the ceiling, walls, and floor of the lobby with sculptural objects, interactive elements, and a mosaic that covered most of the floor and the interior of three elevators that opened onto the lobby.
The company that commissioned the artwork filed for bankruptcy, and Helmsley-Spear, Inc., the new management company, informed the artists that it would be removing the artwork from the building. The artists sought legal protection under VARA to enjoin against its removal. The district court agreed with the plaintiffs that removing the installation would be harmful to their honor or reputation as artists. The judge was also persuaded by the testimony of the plaintiff’s expert witnesses that the work was significant enough in stature that it merited protection against destruction. (The expert witnesses testified that the work was “an incredible phenomenon” and “a very exciting piece”. The judge was less favorably disposed to the opinion of the famously conservative art critic Hilton Kramer, who testified as an expert witness for the defense that the work was “a pastiche of recognized clichés” and “a work so lacking in merit that I believe it serves no useful purpose to retain it” (Carter v. Helmsley-Spear, Inc., 861 F. Supp. 303-Dist. Court, SD New York 1994, 326). The decision was overturned in the Second Court of Appeals, which found that the “Three Js” had created their installation as employees and not as independent contractors. Since VARA does not protect work made for hire, the appellate court overturned the district court’s decision and permitted Helmsley-Spear, Inc. to remove the artwork.
In the 5Pointz case, on the other hand, there seems to have been no monetary remuneration at all, so the question of whether the aerosol art was done for hire is not a factor here. The artists painted their work for free, for no other compensation than the chance to publicly display their work on a building with its owner’s permission. It is somewhat ironic that the artists are claiming that they suffered significant financial and emotional losses due to the owners’ decision to paint over their work without warning, thus preventing them the chance to document their work before its destruction. Street artists who work without the benefit of official sanction cannot expect their creations to last more than a few minutes, much less months or years. Illicit street art is an ephemeral form under constant threat of destruction, either by the authorities or by other graffiti artists. Artists in those circumstances know that if they want to document their work, they had better do it as soon as it is made. The artists in this case, however, are claiming that the whitewashing happened without warning. This stretches credibility, as does their assertion that it caused them enough “humiliation, mental anguish, embarrassment, stress and anxiety, loss of self esteem, self-confidence, personal dignity, shock, emotional distress, inconvenience” to warrant financial compensation. They seem to believe that being welcomed by Wolkoff to use his building as a public canvas also entitles them to other considerations from him. But I do not see how that follows. It’s his building, and he never promised the artists that he would preserve their work, or warn them before removing it. It also seems unlikely that the artists do not happen to have any photos of their work, since they point out in the claim that Donna Karan, among others, used its images, as part of their argument for its recognized stature.
Finally, I think that a truer indication that these works were of significant ‘recognized stature’ would be if the surrounding community had decried the paintings’ destruction, rather than the artists themselves. That would be a sign that the culture at large had claimed ownership of the artworks, and felt entitled to continue enjoying them.
K. E. Gover teaches philosophy at Bennington College. http://webfac.bennington.edu/kgover/
Mary Beth Willard: The production of street art is characterized in part by a commitment to the ethos of ephemerality; works of street art aren’t meant to be permanent fixtures in the urban landscape. The ethos of ephemerality distinguishes street art from other kinds of public art (e.g., murals), where the work ideally is preserved and maintained.
In the decision not to grant a preliminary injunction against the destruction of 5Pointz, Justice Frederic Block wrote:
“Regardless of Cohen’s belief that the 24 works were to be permanently displayed on the buildings, he always knew that the buildings were coming down — and that his paintings, as well as the others which he allowed to be placed on the walls, would be destroyed…In a very real sense, plaintiffs have created their own hardships.”
Street art is installed by the artist into the gallery of the street; to extend the metaphor, the public is not only its patron, but its curator. Accordingly, once the artist has released the work to the public, she relinquishes all control over what happens to it. In a slogan: the street will decide.
So we have a question: if, as street art, the works at 5Pointz were intended for eventual decay, then why should it matter that the works were destroyed by the owner of the building?The entire implications of 5Pointz for the ethos of ephemerality can’t be worked out in a blog post, but part of what seems to be the issue here is who constitutes the street.
Some thoughts: attempts to preserve street art can be understood as challenging the street’s decision regarding what gets to stay in its “gallery.” Here’s a non-5Pointz example. Shortly after Banksy’s Hammer Boy was placed in NYC, it was protected with plexiglass; and shortly after the plexiglass covering was installed, it was covered with a tag declaring “Let the streets decide!” Banksy did not protect the work himself, so the question here is whether preservation of street art by someone other than the artist runs contrary to the ethos of ephemerality. Does protecting Hammer Boy usurp the street’s decision, or is the placement of the Plexiglass the “curators’” decision to protect a treasured artwork from vandalism?
The answer isn’t clear, of course (where would be the fun in that?), but the case of Hammer Boy raises questions about the ethos of ephemerality and how it affects the preservation of street art. What’s interesting about the suit over the destruction of 5Pointz, is that it interrogates the ethos of ephemerality through considering the destruction of street art. As I understand it, the artists are suing the owner now not for the destruction of the 5Pointz space, which they had grudgingly come to accept following the denial of the injunction, but for the unannounced whitewashing of the space in the weeks prior to destruction, which meant that the artists could not successfully preserve any of their work.
Arguably, however, had some tagger covered the work at 5Pointz with whitewash, the artists would not have cause for complaint according to the ethos of ephemerality; the street would have decided against their work. Here, the complaint seems to be partially that the street did not get to decide ultimately what happened with the work, because the owner of the building destroyed the work.
So, preserving a street artwork can violate the ethos of ephemerality; but so too can destroying a street artwork prematurely.
Mary Beth Willard is assistant professor at Weber State University. https://sites.google.com/site/mbwillard/
Darren Hick: On June 3, 2015, a number of street artists filed suit against the owners and developers of 5Pointz, a graffiti mecca in Queens, New York. The complainants are seeking damages on a claim that, in whitewashing the property and so destroying their works, the owners and developers have violated the artists’ rights under the Visual Artists Rights Act (VARA), which forms a part of the U.S. Copyright Act.
In this brief(ish) comment, rather than examining the ethical question of whether the 5Pointz plaintiffs have been wronged, I want to look at the legal question. Legal questions are questions of fact, and it is either a fact that the plaintiffs have been legally wronged, or it’s a fact that they haven’t. But legal facts are funny things.
If we accept the plaintiff’s version of the facts, the defendants “permitted” the plaintiffs to adorn the 5Pointz buildings with graffiti, placing Jonathan “Meres One” Cohen (not himself one of the plaintiffs) in the position of “volunteer curator/registrar/director/manager of the art program at 5Pointz,” even giving Cohen keys to the buildings, leasing offices for his use, and setting restrictions for what sorts of images could be painted. These claims may yet be disputed by the defendants, but let’s assume they are not. Several problems still remain. Two questions will or may be central to the case:
Question 1: Have the street artists created “works of visual art” and are their works of “recognized stature”?
Under VARA, to qualify for remedy for the destruction of one’s work, the work in question must qualify as a “work of visual art” (required for any of the rights under VARA) and be of “recognized stature” (specifically required for remedy where one’s work has been destroyed). A thing does not have to be recognized as a work of art to gain copyright protection generally, but it does need to be recognized as a “work of visual art” to gain the additional protection of VARA. Section 101 of the Copyright Act defines a “work of visual art” as including “a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.” There may be some quibbling about whether the works adorning the walls at 5Pointz qualify as works of visual art (and this is almost certainly where the pundit-on-the-street will want to weigh in), but as they are unproblematically singular paintings, it seems they will qualify. The more difficult condition is whether those things are works of “recognized stature.”
The complaint filed goes to substantial lengths in attempting to establish that the works of the complainants are, indeed, of recognized stature. Well, sort of. Curiously, the complaint makes a series of moves like the following:
65. [James “JimmyC”] Cochran’s works of visual art are works of recognized stature. His work can be found in galleries and exhibitions around the world, including in the United States, Europe and Australia.
66. Cochran had a work of visual art on or at 5Pointz titled “Subway Rider.”
This move (and the others like it in the complaint) suggest that (1) Cochran has created works of recognized stature, (2) “Subway Rider” is a work of Cochran’s, and so (by presumed implication: 3) “Subway Rider” is a work of recognized stature. Although past courts have (perhaps oddly) concluded that prior recognition of a work is not a necessary condition for it to have “recognized stature”, that Cochran has elsewhere created great works certainly in no way implies that “Subway Rider” is one of them. But with the works destroyed, and their creators having not had the opportunity to record them for stature, this could (at least in principle) go either way. The fact here (as it happens) will depend on whether art experts, the artworld at large, or the general community would recognize them as such.
(Interestingly, had the complainants contended that the painted work at 5Pointz is a single, collectively-authored work (rather than, as in the complaint, a collection of more than 350 individual works), they may have had a much easier time establishing the requisite “recognized stature”, as 5Pointz is (as noted in the complaint) recognized worldwide. However, this would have resulted in a much lower potential payout for the plaintiffs. Where the monetary value of a destroyed work is uncertain, it may acquire a minimum worth of $20,000 under VARA.)
Question 2: Is their having been granted permission to adorn 5Pointz with graffiti sufficient for VARA rights?
VARA in no way specifies that, in order to gain the rights offered under its protections, the artist must have permission to create the work in question on another’s property, and this is (to say the least) a bit strange. On its face, this would suggest that, were Cochran to (without my permission) spray paint the door of my car, I could be open to a $20,000 lawsuit should I get it cleaned. If the court takes up this issue (and it may not), it has (it seems) three rough options:
(1) The court could say that a contract with the property owner is necessary for VARA rights to activate, which would leave the 5Pointz artists without legal remedy in this case. (This assumes the artists had no such contract, and since the complaint makes no mention of a contract, I think we can safely make this assumption.)
(2) The court could say that permission is needed, but not a contract. This would provide the 5Pointz artists with legal remedy, but not the graffitist who paints my car. (It would raise additional questions, however, for those who add spray paint to Cadillac Ranch in Amarillo, TX, where permission is perhaps implicit but nowhere specified.)
(3) The court could say that neither permission nor a contract is needed. This would provide the 5Pointz artists with legal remedy, but likewise for the guy who spray paints my car.
Either option (1) or (2) seem like the reasonable options, but each would require that the court to go beyond what is written in VARA to make their decision, which the court may be hesitant to do.
One possible move for excluding (3)—but leaving open the question of (1) or (2)—is to rely on the “unclean hands doctrine”, which limits legal remedies for those who have acted illegally, inequitably, unconscionably, or in bad faith—such as (we might suppose) the illegal painting of a graffiti artist. This would exclude protections under VARA for the illegal graffiti artist, but would not settle the matter for the 5Pointz case, as the plaintiffs presumably did not act with “unclean hands”. However, this doctrine is largely without legislative or scholarly basis, and has been alternatively accepted and rejected by New York courts, so there is really no predicting how this might go.
In one federal case, English v. BFC&R 11th Street LLC, the court found that VARA “does not apply to artwork that is illegally placed on the property of others, without their consent, when such artwork cannot be removed from the site in question.” However, first, the court here relied on “common sense”—and not on anything in VARA, and not explicitly on the unclean hands doctrine—to make this decision. Another court could have a different sense on the matter. Notably, the 5Pointz case was filed in the Eastern District of New York, and not the Southern District (as in the English case), thus reducing predictability of the outcome. Second, the wording in this passage does not imply that consent is sufficient to initiate rights under VARA.
In another federal case, Pollara v. Seymour (this one in the Northern District of New York), the court entirely sidestepped the fact that the free-standing mural at issue had been illegally erected—though, based on the details of the case, probably not in bad faith—leaving open the possibility of VARA rights for artists who illegally place works on others’ property.
Perhaps you think (like I do) that option (3) above is utterly unreasonable. Perhaps you think either (1) or (2) is unreasonable as well. But unless you are a judge in the Eastern District of New York, or on the jury in this case, it doesn’t really matter what you think. But if you are the judge or on the jury in this case, it matters very much what you think, because what you think determines a legal fact: either that the complainants have been wronged, or that they have not. At this very moment, it is a fact that the 5Pointz artists were given permission to adorn the buildings with their creations, or else it is a fact that they were not. But, until Questions 1 and 2 above have been settled, it is not yet a fact that the 5Pointz artists have been legally wronged, and it is not yet a fact that they have not.
Darren Hudson Hick is a visiting assistant professor of Philosophy at Texas Tech University. For more on his work and possibly a really nice coleslaw recipe, visit: www.typetoken.com.
Erin Thompson: Can street artists benefit from the law? Of course they can. Copyright laws give artists rights over the images they create, regardless of whether or not they had permission to create them in a particular location, as has been shown in a recent series of suits against Roberto Cavalli, Terry Gilliam, American Eagle Outfitters, and other fashion designers, directors, and musicians for using graffiti murals without permission in advertisements.
But the current 5 Pointz case may be another story. At the heart of the artists’ claims is the Visual Artists Rights Act of 1990 (VARA). VARA gives an artist the right to collect damages in two relevant circumstances: first, when there has been “any intentional distortion, mutilation, or other modification of [an artwork] which would be prejudicial to his or her honor or reputation,” and second, when there has been “any destruction of a work of recognized stature.” VARA does not define or give any examples of “recognized stature” nor what it means for an action to prejudice an artist’s honor or reputation.
It’s easy to think of hypothetical situations that VARA is meant to prevent. Say I purchased Kara Walker’s sugar sphinx and put it on display in my (improbably large) private museum, but not until I had carved a giant Confederate flag on its flanks. My addition would suggest to the public that Walker supports something that’s contrary to the whole trend of her artistic and ethical reputation. Definitely not cool. VARA to the rescue – Walker could use it to force me to remove the work from display and to collect money to compensate for the damage I had already done to her reputation.
But is what happened at 5 Pointz the same sort of situation? The artists claim that the building owners whitewashed their graffiti murals “in a disgracefully crude, unprofessional manner,” in some instances painting over only parts of the murals or leaving a white smiley face over a mural. Was the manner of covering over the work prejudicial to the artists’ honor or reputation? The answer to this question probably depends on your thoughts about the ephemerality at the heart of street art. Imagine that the court finds that the honor or reputation of the artists was prejudiced just because their works were painted over – this would mean that anyone painting over any piece of graffiti art would violate VARA, including other graffiti artists.
So what about the other, more serious claim – that, leaving aside the specifics of their whitewashing techniques, the property owners violated the graffiti artists’ rights by destroying their work? Here, VARA requires the artists to show that the destroyed works were of “recognized stature.” There has been lots of discussion, and very little consensus, about what this means. Again, it’s easy to give examples at the extremes. Walker’s sugar sphinx was recognized by thousands of critics, scholars, and members of the public; if I destroyed it without her permission, I would be taking away all sorts of values (aesthetic, financial, experiential, etc.) from all sorts of third parties. On the other hand, if I use my extremely feeble artistic skills to make a drawing that my husband puts out with the recycling, I have no VARA rights because no one recognizes my scribbles as great art and there’s no loss to the world from their destruction.
But where should the line be drawn between the extremes? You might be tempted to advocate for erring on the side of preserving art, but we have to remember there is also value in destruction. Since VARA allows the creators of works of recognized stature to prevent the destruction of those works, a different group of artists previously sued the 5 Pointz owners, trying to stop its demolition by arguing (essentially) that all graffiti murals in prominent public places are works of recognized stature. The court did not accept this argument, but imagine the consequences had they succeeded – if any graffiti artist could stop the demolition or change of any surface on which she painted. A mural would thus deprive building owners of their investments, meaning that they would try even harder to prevent the creation of any street art on their property (instead of, for example, giving permission for graffiti artists to paint on temporarily vacant buildings before their redevelopment, as the owners of 5 Pointz did). And more paradoxically, this stringent protection would mean that no other artists could repaint those walls. Good-bye, competitive and ever-changing nature of street art.
So, again – where should the law be drawn? This case might help decide that, and so now is a crucial time to have this debate.
Erin L. Thompson is an assistant professor of art law and art crime at John Jay College (CUNY).