Amidst all the coverage over famed graffiti artist Banksy’s recent “residence” in New York and questions about how artistic license would fare against trespassing and graffiti laws (short answer: poorly), another graffiti case in New York this month has explored the reach of the Visual Artists Rights Act of 1990 (VARA).  Ultimately, the law did not suffice to prevent the owner of the so-called “graffiti Mecca” from proceeding with its intended use of the property (and obliteration of the graffiti).

Click here to view pictures.

5Pointz had been for years known as the “United Nations of Graffiti,” signifying the ability of artists to spray paint the buildings there without running afoul of the law.  In actuality it is an old factory in Long Island City, Queens.  Property owners Jerry Wolkoff and his son David, had allowed the unused factory complex to be painted while the Wolkoffs considered development plans.  When the Wolkoffs recently announced their intention to raze the buildings in preparation for redevelopment, a group of artists sought an injunction in U.S. District Court to prevent the demolition, after the city of New York declined to declare the building a landmark.  The District Court declined to issue the injunction.

The artists relied on VARA, a provision of the Copyright Act (17 U.S.C. § 106A) added to comply with the United States’ then-recent adoption of the Berne Convention, which compels signatories nations to grant certain moral rights to artists that U.S. copyright law theretofore had not.  Although VARA is most often invoked with regard to attribution (an artist may prevent another from citing it as her work if it has been altered, as in the recent Cady Nolan case decided on other grounds), it also provides that visual artists have the rights:

“A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

“(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

17 U.S.C. § 106A(a)(3).  The 5Pointz plaintiffs relied on the second of these provisions, arguing that the complex itself was of such recognized statute that the Copyright Act allowed them to prevent its destruction.  The District Court framed the question as whether “the work of an exterior aerosol artist—given its genera ephemeral nature—is worthy of any protection under the law.”

The District Court actually held a mini-trial, hearing from the 17 artist plaintiffs and Jerry Wolkoff to determine if the artwork were of “recognized stature” that would grant it VARA protection.  VARA works are defined more specifically than that which is entitled to copyright protection; the latter need only be an expressive work fixed in a tangible medium, while a VARA “work of visual art” is “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” or “a still photographic image produced for exhibition purposes only.”  17 U.S.C. § 101.  The Copyright Act excludes from the definition, however, “any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication” or “any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container.”  Id.

The District Court relied heavily on the analysis in Carter v. Helmsley-Spear, Inc.  The District Court (as affirmed by the Second Circuit) imagined a two-tiered analysis to consider “recognized stature,” whether (1) it has “stature, i.e., it is viewed as meritorious,” and (2) the statute is recognized by experts and members of the artistic community.  The Carter court was among the few nation wide ever to have considered that element of VARA.  That and other cases relying on it focused on the purpose of the visual work, that is, whether it was intended to be art.  Where, for example, a sculpture had never been shown to the public, it could not have acquired any such stature in secret.

With regard to 5Pointz, the District Court quite interestingly made findings about the relative quality of the graffiti over time, characertizing it as “distasteful” at the start, but later of “vastly improved” quality when a “curator” undertook to regulate it.  The Court was quite persuaded by the testimony of expert and art history professor Erin Thompson, who urged the court to focus not on the “intrinsic” quality of the art, but its wider reference and reputation.  She argued that notwithstanding 5Pointz’s fame and tourist draw, it should not qualify unless visitors came to see a particular work.  She offered Banksy, ironically, as a counter example.

Ultimately (and with much hand-wringing), the District Court concluded that while 5Pointz is visual art, it is not a “work of visual art” within VARA, and is eligible for protection only as a tourist cite (about which VARA has nothing to say).  The District Court acknowledged that 24 works within the site were reasonable grounds for litigation on the question, but in the context of a preliminary injunction request, they were not sufficiently likely to prevail to justify an injunction.  The District Court found that the other key factor in evaluating an injunction request—irreparable harm—was not met either, since the plaintiffs could be compensated for the value of their lost works, if they ultimately prevailed after the works were destroyed.

Perhaps most astonishingly, in an era when the importance of original works is so contentious (see here and here), the District Court minimized the harm that would be suffered by somewhat blithely declared that the works live on in photographs, and the original works are still protected by copyright.

5Pointz was not a draw because it was a run down factory, however, it was famous because of what was painted on it.  And it was quite well known.  An important fact is that the owners gave their permission for the painting to continue, so the notion that it was always ephemeral in nature is unpersuasive; if a revocable license is granted, it does not mean it will endure for a long time or a short time.  Here, the works remained long enough to make the place famous, so the critical point is how narrow a view to take.  To the extent “5 Pointz” is even a unitary concept, it seems far more accurate to think of it as a Gesamtkunstwerk than a collection of paintings of no stature.

And whether the graffiti qualifies as of “recognized stature,” the irreparable harm and public interest analysis is just plain wrong: 5Pointz is gone, and it’s never coming back.  Photographs will not recreate it, and money will not convey whatever impact a visit there would have had.

Lastly, why is Banksy a counter-example?  His work appears without warning; under this view it would be the artist who has recognized stature, and anything he creates would qualify.  Although it went largely unsaid, it seems the overriding reason for the decision is the equities as to the Wolkoffs.  They allowed the painting to take place, without interference and without demanding compensation.  An opportunity arose to develop their property, and one has to think the District Court simply saw it as unfair to make the property commercially unusable.  But none of that has anything to do with VARA.

Incidentally, the case is not over, and the artists’ claims for damages will proceed.