Is Graffiti Protected by Federal Law?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 6, 2018

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GraffitiI previously wrote about a group of graffiti artists in New York who sued a building owner for painting over their work.

The work appeared on a Long Island building complex called “5Pointz.” For more than ten years, the site was a mecca for graffiti artists to showcase their work. It became a tourist destination, with more than 11,000 paintings over the years.

Initially, the developer of the real estate not only permitted but invited the graffiti artists to paint the buildings.

The complex has since been demolished to make way for new apartment towers.

The artists alleged that the building owner painted over their work without giving them “a fair opportunity to remove and preserve their work, or even the minimum notice required by law.”

VARA

The law at issue is the Visual Artists Rights Act (VARA), which is part of US copyright law.

VARA protects the “moral” rights of artists, and includes the right to have their work attributed to them and the right “to prevent any destruction of a work of recognized stature…” 

However, the statute doesn’t define what “recognized stature” means.

In 2013, the artists sued to stop the building owners from destroying the art along with the buildings. A federal judge initially granted a temporary restraining order but later lifted it. The owner then covered the graffiti with white paint.

The artists sought damages of $150,000 each for 49 works.

The Trial

The case finally went to trial in October.

The attorney for the artists argued that they were entitled to at least 90 days’ notice of the building owner’s intent to paint over the graffiti, to give them the opportunity to remove or preserve their works.

The owner’s attorney argued that the artists had known for years that the buildings would be torn down, and that artists routinely painted over each other’s works.

As The Art Newspaper reported,

The judge instructed the jury that a work must meet two criteria to be protect under VARA. “First, that the work… is viewed as meritorious … and second, that this stature is recognized by art experts, other members of the artistic community, or some cross-section of society.”

Only one expert testified on behalf of the artists.

The jury decided that the building owner did unlawfully destroy the graffiti. This is the first time that graffiti art has been declared to be the subject of VARA,

But it’s up to the judge to make a final determination.

Get It in Writing

As an art-law expert quoted in The Guardian noted, it’s a very good idea for a building owner and graffiti artists to have a formal written agreement about the nature and treatment of the work:

Graffiti is hot property as art now. And if you’re a property owner who is interested in having graffiti in your courtyard or a mural on your wall or someone who’s going to decorate pieces of your property, the parties can avert a lot of problems by proactively on the front end of the project laying out what their rights and obligations are going to be.

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