Under what circumstances can a building owner legally remove artwork from a building?
In 2018, a group of graffiti artists was awarded $6.75 million dollars for the improper removal of their art. On February 20, 2020, the United States Court of Appeals for the Second Circuit upheld that lower court's ruling. In Castillo vs. Cohen et al, 950 F.3d 155 (2d Cir. 2020), known as the 5Pointz case, the appellate court issued a decision that provides needed guidance to building owners and graffiti artists alike.
The case involved a previously little-known law, passed in 1990, called the Visual Artists Rights Act (VARA), which was designed to protect the moral rights of attribution and integrity of artists' works. However, VARA does not confer absolute rights or prevent the removal or destruction of works.
What works are covered by VARA?
What moral rights does VARA protect?
- "Works of visual art" - painting, sculptures, prints, and still photographs for exhibition. Works created after VARA are protected for the life of the author. Works created before VARA but owned by the author on the date of VARA, are coextensive with and expire at the same time as the copyright.
- VARA protects attribution and integrity. VARA rights are subject to §113(d) of the U.S. Copyright Law.
- What are the penalties for violating VARA?
- The remedies are the same as for copyright infringement.
- The artist has a cause of action in Federal Court even if the artwork is not registered.
- Statutory damages are $500-$20,000, increasing to $150,000 for willful infringement.
The 5Pointz case involved a building in Long Island City owned by Wolkoff, who permitted the graffiti to be displayed on the building for over two decades until he wanted to demolish the building. The graffiti consisted of 44 Works of 21 artists. The artists sought a preliminary injunction to prevent the building's destruction. The District Court denied the preliminary injunction and Wolkoff commissioned the whitewashing of the building (thus destroying the graffiti) prior to trial.
In February 2018, the lower court awarded the artists $6.75M in damages (Cohen v. G&M Realty L.P., 2018 WL 851374 (E.D.N.Y. Feb. 12, 2018)
The Eastern District of New York awarded statutory damages at the highest end of the spectrum since Wolkoff had willfully decided to whitewash the culturally valuable art without waiting for the Court's final decision. The Judge stated that Wolkoff led the Court to believe demolition was imminent when in fact no permits had been issued.
Is the decision, now affirmed, beneficial to artists or to building owners?
Graffiti is now officially art of recognized stature ("one of high quality, status or caliber, acknowledged as such by a relevant community") entitled to be protected from destruction under VARA. The appellate court noted that Wolkoff had not given the artists the 90-day notice of the whitewashing and that it was troubled by the fact that Wolkoff had no immediate need to conduct the whitewashing so long before the actual destruction was scheduled.
Will the decision deter building owners from allowing graffiti on their buildings and will VARA be applied where the building owner did not consent to the placement of the artwork on the building? These questions have no answers yet.
What are best practices for building owners in light of the 5Pointz case?
Having an agreement in place between the building owner and artists which sets forth the rights of the parties is crucial. In the absence of an agreement, if the building owner wants to remove artwork which can safely be removed, the artist's rights apply unless:
- The building owner has made a diligent, good faith but unsuccessful attempt at notification to the artist of its intent to remove (a good faith attempt is mailing to the address listed with the Copyright Office (assuming a registration has been issued); or
- The building owner provided notice but the artist failed to remove the art or pay for its removal within 90 days after receiving the notice.
Artists now know that temporary art is capable of being protected under VARA. Building owners now know that the 90-day notification provision has real teeth, given the multimillion-dollar judgment. However, on March 6, 2020, Wolkoff requested that the Supreme Court hear his appeal, on the grounds that the meaning of "recognized stature" isn't clear and the $6.75 million-dollar statutory damages award is "grossly excessive" and thus unconstitutional.
Will the Supreme Court hear the case?
Only time will tell.