Introduction

Millions of people across the globe have come down with World Cup Fever, glued to their screens as they cheer for their favorite teams. Unfortunately, succumbing to this infectious wave was a piece of Dallas’ vibrant street art scene, Robert Wyland’s 17,000 square foot “Ocean Life” mural.

Also known as “Whaling Wall 82,” the artwork spanned across two sides of a massive building and depicted a stunning life-sized pod of whales swimming through the ocean alongside other marine life. It has been a fixture of the community since 1999. Shockingly though, crews erased most of the mural in May by covering it in stark blue primer to make room for a World Cup-themed image. Despite leaving just a fractional piece of the work intact, there was no publicly revealed plan for replacing the work, and no artist was identified to paint it. Wyland alleges that the removal was “hastily and irrevocably” done without his consent or knowledge, bringing rise to his $25 million suit against Fédération Internationale de Football Association (“FIFA”), the local organizing subsidiary, the building owner, and other related parties.

VARA and the Rights it Brings

The Visual Artists Rights Act (VARA) breathes life into legal rights — called moral rights — that cover the non-economic aspects of artists’ protections. Included in these moral rights are an artist’s rights to (1) attribution and disavowal; (2) integrity; and (3) prevention of harmful modifications. Attribution and disavowal pertain to artists’ right to claim authorship of works they created and disclaim authorship to works they did not create, respectively. However, the rights central to this case involve an artist’s right to preserve his or her work. 

The right of integrity prevents an artist’s work from being distorted, mutilated, or modified in a way that is prejudicial to the artist’s honor or reputation. Alongside this is the right to prevent harmful modification or destruction, which is an additional protection only provided to works of recognized stature. Generally, for an artist to prove a work is of “recognized stature,” the artist must provide expert opinions testifying to the work’s merit and importance. Factors to consider include the work’s level of fame, the artist’s reputation, and general publications or media coverage of the work.

With integrated works (those that can’t be removed, like murals and site-specific pieces) VARA provides that the artist’s written waiver of VARA rights is needed to proceed with any destruction of the work. This scenario played out in the landmark “5Pointz case,” where an abandoned warehouse acting as the world’s graffiti mecca was whitewashed under the cover of night while litigation concerning artists’ rights was still pending. Castillo v. G&M Realty L.P., 18‑498 (2d Cir. 2020).  Ultimately, the court decided that VARA had been violated as the whitewashing of the long-standing aerosol works amounted to the willful destruction of the artists' works before giving them any opportunity to preserve their art via photographs or physical removal. In the end, the building’s owner paid $6.75 million in damages to the 21 artists whose work collectively made 5Pointz what it was. Talk about a whale of an award.

How this Plays Out for Wyland’s Mural

Wyland starts his litigation on strong footing. The mural was number 82 of a larger, international series of 100 works, and was known in Dallas and internationally for its important message regarding environmental conservation. Additionally, while a spokesperson for the building owner stated that the relevant  World Cup committee signaled that Wyland had been informed of the plans, the artist disputes that account and claims he did not receive notice before the mural was covered. The defendants appear to be distancing themselves from the decision-making process, each limiting their involvement. FIFA stated it had “no involvement in this whatsoever” and referred questions to the local organizing committee, whose president, Monica Paul, acknowledged gaps in the process, communication, and assumptions. This wouldn’t be the first time an administrative oversight led to a successful VARA claim. In Martin v. City of Indianapolis, beloved large-scale metal sculpture by Jan Randolph Martin was torn down in an urban renewal project. Martin v. City of Indianapolis, 192 F.3d 608 (7th Cir. 1999). While the sculpture was originally built on private land with permission from both the landowner and the city of Indianapolis, the property was later purchased for the project and the city’s demolition destroyed the artwork without complying with VARA’s notification requirement by informing Martin of plans to remove his work.   

Added to the legal drama is the public sentiment against massive institutions taking over cities for their international attention. Sadly, so many of these efforts are led by floundering administrators who may not properly respect and value the local community and culture. We’ve seen this happen with various Olympic events, whether that be the Rio 2016 Olympics where urban renewal projects in favelas led to displacement and gentrification, or the more recent FIFA World Cup Qatar 2022 where human rights groups marred the event for migrant labor rights abuses and exploitation under the kafala system.

While VARA is a relatively new act without robust case law, Wyland’s claims are strong, if we accept his factual assertions as true. Like in Martin, the decision process leading to the destruction of Wyland’s art was left out at sea due to administrative oversight, leading to the permanent erasure of a piece of Dallas’ artistic identity. It will surely be interesting to read FIFA’s answer to Wyland’s complaint. However, the damages claimed by Wyland alone is worth noting because it is the highest of any VARA litigation claim to date. At $25 million, this case will act as a lighthouse in a storm for future cases to come.

This article was drafted with Rami Daham.